V.V. Xavier v. C. Sugunan and Managing Director, KSRTC

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 19TH DAY OF JUNE 2017/29TH JYAISHTA, 1939** **MACA.No. 849 of 2013 (B) ------------------------** **AGAINST THE AWARD IN OPMV 397/2011 of M.A.C.T.,KALPETTA DATED 10.12.2012** **APPELLANT(S)/PETITIONER:** **-----------------------** **V.V. XAVIER S/O. VARKEY, VALAVUMKANDATHIL HOUSE, PILAKKAVU POST, MANANTHAVADY TALUK, WAYANADU.** **BY ADV. SRI.ABRAHAM MATHEW** **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. C. SUGUNAN AGED 43 YEARS, S/O. MUTHORAM, KUNNAMANGALAM POST, KOZHIKODE, (K.S.R.T.C DRIVER, MANANTHAVADY DEPOT, PIN-673571(DRIVER OF THE K.S.R.T.C D.L NO.NOT KNOWN)** **2. MANAGING DIRECTOR,** **K.S.R.T.C, THIRUVANANTHAPURAM - 695 001.** **R2 BY ADVS. SRI.P.C.CHACKO, SC, KSRTC SRI.JOHN MATHEW, SC, KSRTC SRI.P.K.BEHANAN,SC,KSRTC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**OKB**_ ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** M.A.C.A.No.849 of 2013 **-----------------------------------------------** Dated this the 19[th] day of June, 2017 ## **J U D G M E N T** ## Ravikumar, J. This appeal for enhancement of quantum of compensation is filed by the injured petitioner. He filed O.P.(MV)No.397/11 seeking a total compensation of `2 lakhs for the injury sustained by him in a motor vehicle accident that occurred on 28.9.2011. He was travelling in a KSRTC bus bearing registration No.TP-451 from Mananthavady to Thrissilery. When it reached near KSRTC Carriage Junction, the driver negotiated a gutter in a rash and negligent manner and as a result, the appellant/petitioner was thrown out of the vehicle. The appellant sustained serious injuries and he had to remain in hospital as an inpatient for a period of 58 days. The injuries sustained by him in the accident resulted in permanent disability. It is in the said circumstances that the aforesaid claim petition was filed. No oral evidence was adduced by both sides before the Tribunal. The respondents had M.A.C.A.No.849 of 2013 :-2-: not adduced any documentary evidence as well. On the side of the appellant Exts.A1 to A7 were got marked. Ext.C1 is the disability certificate issued in respect of the petitioner. It is a Court document. The Tribunal on appreciating the rival contentions and analysing the evidence on record awarded a compensation of `1,16,300/- with interest at the rate of 7.5% per annum from the date of petition till realisation. The petitioner seeks for enhancement of the said quantum of compensation. 2. Heard. 3. Evidently, the Tribunal on analysing the evidence on record arrived at a conclusion that the accident occurred due to the negligence on the part of the 1[st] respondent, the driver of the aforesaid bus. The offending bus, admittedly, belonged to the 2[nd] respondent. It is based on the said conclusion and indisputable position regarding ownership that the 2[nd] respondent was held liable to compensate the petitioner. Despite such findings, no appeal has been preferred by the 2[nd] respondent. So also, no cross objection was taken up in this appeal. In such circumstances, it can only be taken that with respect to the accident, the cause of the accident as the negligence on the part ## M.A.C.A.No.849 of 2013 :-3-: of the 1[st] respondent and also the vicarious liability of the 2[nd] respondent, there is no dispute. In short, the only question to be considered in this appeal is whether or not the appellant is entitled to get enhanced compensation. 4. The main grievance of the appellant is with respect to the fixation of the monthly income notionally by the Tribunal for calculation purpose. It is the submission by the learned counsel that disregarding the fact the accident occurred in the year 2011 and the appellant was then aged only 56 years, the Tribunal has fixed only an amount of `3,000/- as the monthly income. It is submitted that the said erroneous fixation of the monthly income virtually deprived him the due compensation. The compensation granted by the Tribunal towards 'loss of earning', bystander's expenses, expenses for extra nourishment and loss of amenities are also on the lower side, it is contended. 5. The accident occurred on 28.9.2011. The evidence on record would reveal that the appellant was then aged 56 years. Though he had claimed to be an agriculturist cum coolie worker and was earning `10,000/- per month, no evidence was adduced by him to establish the contentions regarding occupation and M.A.C.A.No.849 of 2013 :-4-: income. When that being the position, the Tribunal cannot be found fault with in fixing the monthly income of the appellant notionally for calculation purpose. However, the question is whether the fixation of the monthly income as `3,000/- invites interference. In such circumstance, taking note of the absence of the evidence to establish the income and also taking note of the un-rebutted contention of the petitioner that he was a coolie, we are of the view that the decision of the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)13 SCC 236]** can be taken for guidance. In that case, in respect of a coolie who met with an accident in the year 2004, the Tribunal fixed the monthly income on notional basis as `4,500/-. Taking note of the year of the accident involved in this case and the age of the appellant at the time of the accident, we are inclined to fix `6,500/- notionally as the monthly income of the appellant for calculation purpose. The entire percentage of disability certified under Ext.C1 was taken into consideration for calculating compensation for permanent disability. In that regard, the multiplier was adopted with reference to the age of the appellant. In such circumstance, M.A.C.A.No.849 of 2013 :-5-: a re-assessment of the compensation under the said head is required only with the re-fixed monthly income. On such reassessment, the appellant would be entitled to get an amount of `70,200/- (6,500x12x9x10/100). The Tribunal has already granted an amount of `32,400/- under that head. After deducting the said amount, the appellant would be entitled to get an additional compensation of ` **37,800** /- under that head. 6. The petitioner is also entitled to get a proportionate enhancement of compensation under the head 'loss of earning' based on the re-fixed monthly income. We do not propose to interfere with the period of 5 months fixed by the Tribunal for calculating the compensation under the said head. Since we have already re-fixed the notional income of the appellant as `6,500/-, the compensation payable under this head comes to `32,500/- (@ `6,500 for a period of 5 months). After deducting the sum of `15,000/-, the compensation awarded by the Tribunal under this head, the appellant would be entitled to get an additional compensation of ` **17,500** /- towards 'loss of earning'. It is awarded. M.A.C.A.No.849 of 2013 :-6-: 7. Towards 'bystander's expenses' and 'extra nourishment', the Tribunal granted `100/- per day. Taking note of the year of the accident and the cost of living, we are of the view that towards 'bystander's expenses' an amount of `200/- per day ought to have been granted and towards 'extra nourishment', an amount of `150/- ought to have been granted. In that view of the matter and taking note of the fact that the appellant had an inpatient for a period of 58 days, the appellant would be entitled to get an amount of ` **5,800** /- additionally [(`200x58) - (`5,800/- granted by the Tribunal)] towards 'bystander expenses' and ` **2,900** /- additionally [(`150x58) - (`5,800/- granted by the Tribunal)] for 'extra nourishment'. 8. Towards 'loss of amenities', the Tribunal granted an amount of `5,000/-. Ext.A4 wound certificate and Ext.C1 disability certificate would reveal the nature of injuries sustained by the appellant and also the impact of such injuries. Taking note of the difficulties occasioned due to such injuries and the period of treatment, we are of the view that an amount of ` **5,000** /- more can be granted towards 'loss of amenities'. It is awarded. M.A.C.A.No.849 of 2013 :-7-: In the result, in the light of the enhancement made by us, the appellant would be entitled to total compensation of ` **69,000** /- (37,800+17,500+5,800+2,900+5,000). It is awarded. The said amount will carry interest at the rate of 8% per annum from the date of petition till realisation. Since the insurance coverage of the vehicle is not in dispute, the 3[rd] respondent insurer shall deposit the said amount within a period of 3 months from the date of receipt of a copy of this judgment. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **ANIL K.NARENDRAN JUDGE** ami/22.6.17 //True copy// P.A.to Judge