Vincent v. Kerala State Road Transport Corporation and Jose Mathew and New India Assurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 18TH DAY OF DECEMBER 2019 / 27TH AGRAHAYANA, 1941** ## **MACA.No.3127 OF 2014 (C)** **AGAINST THE AWARD IN O.P.(MV) NO.1150/2011 DATED 30-06-2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA** ## **APPELLANT:** **VINCENT, S/O.VARGHESE, AGED 37 YEARS, PUTHUSSERIL HOUSE, VANDAMATTOM P.O., NEDUMATTOM, THODUPUZHA.** **BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA** ## **RESPONDENTS:** |**1**|**MANAGING DIRECTOR,**| |---|---| ||**KERALA STATE ROAD TRANSPORT CORPORATION,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**JOSE MATHEW, S/O.MATHEW,**| ||**PLAKKOOTTATHIL HOUSE, PARAKADAVU KOLANY,**| ||**KARIMKUNNAM, THODUPUZHA - 685 584.**| |**3**|**NEW INDIA ASSURANCE COMPANY LIMITED,**| ||**KOTTAYAM - 686 001.**| **R1 BY SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC R1 BY ADV. SRI.GEORGE CHERIAN SR. R1 BY ADV. SMT.K.S.SANTHI R1 BY ADV. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. R1 BY ADV. SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT CORPORATION R3 BY ADV. SRI.GEORGE CHERIAN (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3127 OF 2014 (C)** **2** ## **JUDGMENT** The appellant/claimant preferred the present appeal against the award of the Motor Accidents Claims Tribunal, Pala, dated 30.06.2014, seeking enhancement of the compensation awarded. 2. He is stated to have suffered serious injuries in an accident occurred on 08.11.2010 at 1.15pm., when he was riding a motorcycle bearing registration No.KL-06/C-9217 through Pala - Ettumanoor road, a bus bearing registration No.KL-15/7867 of KSRTC (Kerala State Road Transport Corporation), came from west to east hit the motorcycle from the back side. Ext.A7 , the detailed discharge card issued from the Medical College Hospital, would show that he had sustained perineal injury, fracture of the right iliopubic ramus and ischiopubic ramus, fracture of the sacrum with subluxated left hip, dislocated sacro iliac joint, surgical site infection and fracture of the 11[th] rib left side and subsequent to that on 08.11.2010, sigmoid loop colostomy and debridement of perineal wound were done under general anaesthesia. On **MACA.No.3127 OF 2014 (C)** **3** 06.12.2010, split skin grafting raw area-sacral and gluteal area (right) was also done under general anaesthesia. Even the air pockets were also extending to pelvis. In fact, he received very serious injuries, the age at the time of the accident was 34, and was working as a rubber tapper. Eventhough his monthly income shown was Rs.8,000/-, the Tribunal took it as Rs.6,000/- and also taking into consideration all the aspects awarded a total compensation of Rs.11,45,450/- as follows:- |**Part I**|Amount<br>claimed<br>(In Rs.)|Amount awarded<br>(In Rs.)| |---|---|---| |Loss of earnings|1,92,000/-|72,000/-<br>(6,000 x 12 months)| |Transport to Hospital|30,000/-|30,000/-| |Extra-nourishment|10,000/-|5,000/-| |Damages to clothing|1,000/-|Not entitled| |Treatment Expenses|4,00,000/-|1,65,250/-| |Bystander Expenses|2,00,00/-|90,000/-<br>(200 x 2 x 225 days)| |**Part II**||| |Pain and suffering|2,00,000/-|50,000/-| |Permanent Disability|16,32,000/-|Not entitled| |Loss of earning capacity|3,00,000/-|3,88,800/-<br>(6,000 x 12 x 15 x 36/100)| |Loss of amenities|Nil|1,94,400/-| |Future bystander's<br>expenses|Nil|50,000/-| **MACA.No.3127 OF 2014 (C)** **4** |Future treatment expenses|2,00,000/-|1,00,000/-| |---|---|---| |Total Claim is limited to|31,65,000/-<br>20,00,000/-|11,45,450/-| 2. Sri.C.M.Tomy, the learned counsel appearing on behalf of the appellant submits that the multiplier of 15 is not apt as per the judgment of the Hon'ble Supreme Court in ## **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC** **121]** and it should have been 16 as on the date of the accident his age was 34 years. He was earning at least Rs.8,000/-, and which was in the year 2010, commensurated with the Minimum Wages Act as applicable to the State of Kerala, the income should have been taken as Rs.8,000/-. No doubt, the Tribunal has granted future treatment and bystander expenses to the extent of Rs.1,50,000/- but the pain and suffering of Rs.50,000/- is on the lesser side. Disability as per Ext.X1 certificate is 36%. The Tribunal has, for the reasons best known, attributed 25% of negligence towards the appellant/claimant despite rendered a finding **MACA.No.3127 OF 2014 (C)** **5** that he was just 50cm. to the south from the northern tar road end extreme left side. The insurance company has not been able to discharge the onus to prove such negligence in the absence of any mechanical report or site plan except the Scene Mahazar. Nothing concrete surfaced in the statement of the driver of the bus. 3. Per contra, Smt.K.S. Shanti, the learned counsel appearing on behalf of the insurance company for the driver and owner supports the award under challenge stated to be fair, reasonable and justified. Further submits that compensation of Rs.8,59,088/- out of Rs.11,45,450/- cannot be granted as there is no scope of enhancement of the compensation. 4. Having heard the learned counsel for the parties and appraised the paper books, I am of the view that the award of the Motor Accidents Claims Tribunal is liable to be modified under various heads. 5. Against the claim of Rs.2,00,000/- under the head **MACA.No.3127 OF 2014 (C)** **6** pain and sufferings, the Tribunal awarded only an amount of Rs.50,000/- though the Tribunal has not taken into consideration the nature of the injuries and disability. He had almost functional disability more than what has been assessed, and I grant Rs.1,00,000/- under the head, resulting in an additional compensation of **Rs.50,000/-** . The multiplier of 15 has not been correctly applicable, taking into consideration the age of the appellant/claimant at the time of the accident. It is taken as 16 for calculating compensation under various heads and notional income as Rs.6,000/-. That be so, the compensation payable under the head loss of earning power will come to Rs.4,14,720/- (6,000 x 12 x 16 x 36/100 = 4,14,720). Thus, an amount of **Rs.25,920/-** (4,14,720 - 3,88,800 = 25,920) is granted as additional compensation under the head loss of earning capacity. Under the head future treatment, the Tribunal awarded an amount of Rs.1,00,000/- which do not commensurate with the nature of expenses. In such circumstances, I grant **MACA.No.3127 OF 2014 (C)** **7** Rs.2,00,000/- for the same, resulting in an additional compensation of **Rs.1,00,000/-** . Bystander expenses are also increased to Rs.75,000/-, resulting an additional compensation of **Rs.25,000/-** . Towards Extra nourishment, the Tribunal award an amount of Rs.5,000/- only. Considering the facts and circumstances of the case, I deem it appropriate to grant an additional amount of **Rs.5,000/-** under this head. 6. The Tribunal attributed 25% negligence on the claimant. The finding of the Tribunal in paragraph 13 is not correct. For the sake of brevity, Paragraph 13 of the award is ## extracted herein below:- “13. I have gone through the evidence in this case. I have considered the oral evidence of Pws.1 and 2 and RW1 and 2. I have considered Ext.A1 FIR, A2 F.I.Statement, A3 scene mahasar and A6 charge-sheet. The evidence will go to show that the accident occurred 50cms. to the south from the northern tar road end. As far as the K.S.R.T.C. Bus is concerned, northern side is the proper side of the bus. The case of the petitioner is that he had completed corssing of the road and was proceeding from west to east and therefore, he was also on the proper side. At that time, the bus hit on the motorcycle from the back side. Bu the circumstances and evidence will go to show that this argument of the petitioner is not correct. There is **MACA.No.3127 OF 2014 (C)** **8** no evidence to show that the petitioner has completed crossing the road. The evidence of RW1 who was driving the bus very clearly shows that the motorcycle crossed the road just in front of the bus. There is no reason shown to disbelieve the evidence of RW1. This aspect is evident from the fact that the accident was just 50 cms. to the south from the northern tar road end. This illustrates the fact that the accident was not as alleged by the petitioner. It was not a case of actual hit from behind. On a consideration of the facts and circumstances in this case, I am of the opinion that the negligence of the petitioner has also contributed to the accident.” 7. Once the Tribunal found that the place of accident was just 50cms. to the south from the northern tar road end; there is no map or examination of the Investigating Officer reflecting any brake mark or tyre marks on the road to establish the speed of the bus particularly when the bus hit from the back cannot be said that the claimant had not looked at in the rear view mirror. The 100% negligence, in such circumstances, is attributed to the driver of the bus. The finding of the Tribunal as afore-mentioned is set aside, Award is modified to the afore-mentioned extent. Accordingly, the appeal is disposed of. The insurance company is directed to deposit the enhanced compensation **MACA.No.3127 OF 2014 (C)** **9** of **Rs.2,05,920/-** (Rupees Two lakhs five thousand nine hundred and twenty only) . The enhanced amount shall entail an interest of 7.5% interest. While parting with the judgment, I notice that after the Tribunal has directed a sum of Rs.4,00,000/- to be released to the claimant, rest of the amount was ordered to be deposited in the SBI, such a finding in my view, cannot be construed to be justified nor there is any rationality but without considering the deformities and the injuries suffered, the utilisation of money in hand and for future expenses would be the most helpful. Accordingly the finding of the Tribunal recorded in the penultimate paragraph is modified. The entire compensation already assessed and enhanced is ordered to be released to the claimant. (1:28:51..191218- **Sd/AMIT RAWAL, JUDGE** Skk//191219