Yesudas @ Das S/o Lukose v KSRTC

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 22[ND] DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943** **MACA NO. 2750 OF 2012** **(THE AWARD DATED 15-6-2011 IN OP(MV) 1155/2005 ON THE FILE OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA** ## **APPELLANT/PETITIONER:** YESUDAS @ DAS S/O.LUKOSE, CHUNDAVILA VEEDU, ALANCODE.P.O., KANYAKUMARI DISTRICT. BY ADVS. SRI.VINOD RAVINDRANATH SMT.MEENA.A. ## **RESPONDENTS/RESPONDENTS:** 1 THE MANAGING DIRECTOR, KSRTC KERALA STATE ROAD TRANSPORT CORPORATION LTD., THIRUVANANTHAPURAM, PIN-695001. 2 LEMIN JOSE S/O.GEORGE, KALLUVETTANKUZHI VEEDU, KANJIRAMKULAM P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695524. BY ADVS. SRI.P.C.CHACKO(K) SMT.M.R.MINI SRI.ASHWIN SATHYANATH SRI.ROHIT NANDAKUMAR ALEX ANTONY SEBASTIAN P.A. SRI.ALEX ANTONY SEBASTIAN P.A - R1 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **03.02.2022, THE COURT ON 22.02.2022 DELIVERED THE FOLLOWING:** MACA.No.2750 of 2012 2 ## **JUDGMENT** The appellant is the claimant in OP(MV).1155/2005 on the file of Motor Accident Claims Tribunal, Neyyattinkara. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injury sustained to the appellant/claimant in a motor vehicle accident occurred on 22.4.2005. 2. It is alleged that on 22.4.2005 at 11 p.m. while the appellant standing in the KSRTC Stand at Neyyattinkara, the KSRTC bus registration No.KL-15-5379 driven in a rash and negligent manner knocked down the appellant and the bus ran over his left foot, which resulted in gross crushed injury to the left foot. Thereafter, he had undergone prolonged treatment in various hospitals. He claimed a total compensation of Rs.3,00,000/-. 3. Before the Tribunal 2[nd] respondent remained ex-parte. The 1[st] respondent filed written statement contending that the claims under various heads are highly excessive and exorbitant. It is also contended that the claimant ran behind the bus, tried to board the bus and having failed to get hold of proper grip and fell down from the moving bus. Hence, the accident happened due to MACA.No.2750 of 2012 3 his negligence and the respondents cannot be held liable for the same 4. Exhibit A1 to A12 and Exhibit X1 were marked from the side of the claimant. 5. The Tribunal on evaluating the pleadings and materials produced from the side of the claimant found that the accident happened due to the rash and negligent driving of the bus by the 2nd respondent and the appellant/claimant sustained injuries out of the accident and ultimately the Tribunal awarded total compensation of Rs.2,59,400/-. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, claimant (herein after be referred as the claimant) came up in appeal before this Court on various grounds stated in the memorandum of appeal. 7. This Court as per order dated 24.3.2021 in C.M.Appln. No.1/2012 condoned the delay of 423 days on condition that if ultimately the compensation is enhanced, the appellant would be disentitled for interest for a period of 423 days. 8. 1[st] respondent appeared through Standing Counsel for K.S.R.T.C. 2[nd] respondent though served, there was no appearance MACA.No.2750 of 2012 4 for him. Lower court records were called for and perused. Heard the learned Standing Counsel for the K.S.R.T.C. as well as the learned counsel for the claimant. 9. The findings with respect to the accident and the negligence on the part of the 2[nd] respondent is not in dispute. The only challenge is with regard to the quantum of compensation awarded by the Tribunal. 10. In this case, the compensation awarded by the tribunal under various heads are as follows: |Compensation allowed at<br>different heads|Amount awarded<br>Rs.| |---|---| |Loss of earnings|15,000-00| |Partial loss of earning|-| |Transportation expenses|2,500-00| |Extra nourishment|2,000-00| |Damage to clothing|500-00| |Medical expenses|5,000-00| |Future medical expenses|10,000-00| |Bystander's expenses|12,000-00| |Pain and sufferings|40,000-00| MACA.No.2750 of 2012 5 |Compensation allowed at<br>different heads|Amount awarded<br>Rs.| |---|---| |Loss of amenities and enjoyment<br>in life<br>Permanent disability|50,000-00<br>1,22,400-00| |Loss of future earning power|-| |Total|2,59,400-00| 11. According to the learned counsel for the claimant, the claimant was a coolie aged 27 years and the monthly income claimed was Rs.4,000/-. For the reason that the claimant did not produce any documents to prove the income, monthly income was fixed notionally as Rs.3,000/-. The accident occurred in the year 2005. ## 12. In **Ramachandrapa v. manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court notionally fixed the monthly income of a coolie in the year 2004 at Rs.4,500/-. It was held that a claimant working as coolie cannot be expected to produce any documentary evidence to substantiate their claim. It is also held that in the absence of any other evidence contrary to the claim made by the MACA.No.2750 of 2012 6 claimant, the Tribunal should have accepted the claim of the claimant. It is also held that in a given case if the claim made is so exorbitant or if the claim made is contrary to ground realities the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work which may include the ground realities prevailing at the relevant point of time. 13. In **Syed Sadiq v. Divisional manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** Apex Court was dealing with an appeal which arouse out of an accident occurred on 14-08-2008. Claimant was a vegetable vendor aged about 24 years who sustained injury to the lower end to right femur and left upper arm and his right leg had to be amputated. Question arouse about his monthly income. Following the principles in Ramchandrapa's case it was held that there is no reason for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. It is further found that going by the present state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 14. In the present case, the accident occurred on 22-4-2005, MACA.No.2750 of 2012 7 the claimant is alleged to be a coolie aged 27 years, so in view of the above settled position of law Rs.4,000/- claimed as monthly income by the claimant cannot be said as excessive. Hence, I hereby accept the monthly income of the claimant as Rs.4,000/per month. 15. The learned counsel for the claimant would contend that the claimant sustained very serious injuries and he had undergone in patient treatment for total 112 days. According to him, immediately after the incident he was taken to Taluk Hospital, Neyyattinkara, and on the next day he was referred to Medical College Hospital, Thiruvananthapuram, and he was shifted to Medical College Hospital, Kanyakumari, where he underwent 42 days inpatient treatment. 16. Exhibit A6 discharge card would prove that his inpatient treatment at Kanyakumary Government Medical College Hospital from 24.4.2005 to 05.6.2005. Exhibit A7 discharge certificate would shows continued treatment in the same hospital from 25.10.2007 to 14.11.2007. Exhibit A11 further shows inpatient treatment from 19.2.2011 to 15.3.2011. Exhibit A12 proves treatment from 01.4.2011 to 23.4.2011. Exhibit A6 is the National Identity Card MACA.No.2750 of 2012 8 and Pass book with disability certificate issued by District Disabled Rehabilitation Officer, Nagercoil, Kanyakumari, certifying that the claimant has got 40% permanent physical disability. Exhibit X1 is the certificate issued by the Medical College Hospital, Thiruvananthapuram, in which the doctor certified partial permanent disability of 15 %. Exhibit X1 would states that crush injury of left foot with ankylosis of the ankle and deformity of the foot-ankle complex. 17. So in view of the prolonged treatment and the nature of injuries sustained by the claimant, **loss of earnings** for six months can be granted that will come to Rs.24,000/- (Rs.4,000x6). The amount already awarded by the Tribunal is Rs.15,000/- the balance would be **Rs.9,000/-** (Rs.24,000-15,000). Towards bystander expense the Tribunal awarded is Rs.12,000/- But the documents produced from the side of the claimant would prove that he had undergone inpatient treatment for 112 days. Since, the incident occurred in the year 2004 bystander expense per day can be calculated as Rs.200/-. Towards **bystander expense** the claimant is entitled to get Rs.22,400/- (Rs.200x112). Deducting the amount already awarded the balance could be **Rs.10,400/-** (Rs.22,400- MACA.No.2750 of 2012 9 12,000). 18. The next contention of the learned counsel is with respect to the award of compensation under the head of permanent disability. The Tribunal did not accept the permanent disability certified in Exhibit A8, for the reason that it has been certified in a pass book issued from Kanyakumari Medical College Hospital, in the absence of requisite data by which the doctor arrived at 40% permanent disability. Exhibit X1 the disability certificate issued by the medical board, certified permanent disability of 15%. It has been found by the Tribunal that his left foot and ankle are severely deformed and oedematous as seen from the photographs. It is also noted by the Tribunal that when the claimant appeared in person before the Tribunal on 25.11.2011 he was found to be walking heavily limping with the aid of walking stick, a hand crutch. He also complained of persistent pain at the injury site and of inability to do any work. The prolonged treatment undergone by him at Kanyakumari Medical College hospital, is revealed by Exts.A7, A9 and A12. He had undergone a total inpatient treatment for 112 days also. Due to the injuries sustained to his left leg and the prolonged treatment MACA.No.2750 of 2012 10 undergone by him, the certification of 40% permanent disability issued from the Kanyakumari Medical College Hospital, Nagercoil, which is produced as Exhibit A8 cannot be said as totally baseless. The same is not a pass book alone as noted by the Tribunal and it has been captioned as a disability certificate affixed with his photograph. 19. In Exhibit A12 discharge summary, it has been recorded that osteomyelitis to the talus and joint erosion and further it is noted triple arthrodis of left angle. In Exhibit A11, which is the discharge summary proving inpatient treatment from 19.2.2011 to 15.3.2011 also there is reference that Osteomyelitis of the calcaneus and talus and swelling of left angle and feeling pain left angle. The incident was in the year 2005. So the records would prove that even in 2011 the pain was subsisting and Osteomyelitis of the calcaneus and talus has also been noted. So, all those factors support Exhibit A8 disability certificate certifying 40% permanent disability. So the question is whether 20% disability adopted by the Tribunal would be a just compensation in the present case or not. 20. In this context, it is relevant to quote **Shankarappa Kubbanna Kattimani v. Karnataka Road Transport** MACA.No.2750 of 2012 11 **Corporation and others.** In that case, High Court reduced the compensation to Rs.1,07,000/- instead of Rs.2,04,800/- fixed by the Tribunal. The Apex court found that High Court committed gross error in ignoring the fact that the claimant was a coolie doing manual labour for earning his livelihood. As a result of the accident his one arm was amputated which was almost total disability for earning. In such a situation, to reduce the quantum of compensation by treating disability at 50% was uncalled for. The Tribunal has in fact assessed the disability at 80%. Accordingly, the appeal was allowed and order of the High Court set aside restoring the award passed by the Claims Tribunal. 21. In this case,it has come out that the claimant was admitted in Medical College Hospital, Kanyakumari, for about 110 days. The Chairman of the Medical Board, Kanyakumari Medical College, would certify permanent disability at 40%. But in Exhibit X1 the Medical Board, Thiruvananthapuram, certified that the disability as partial permanent disability at 15%. But, there is no reference with regard to the functional disability in the same. 22. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** the general principles MACA.No.2750 of 2012 12 relating to compensation in injury cases has been dealt with in detail and it has been held therein that the provision of the Motor Vehicles Act, 1988, makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately to restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. It is also held that a person is not only to be compensated for the physical injury, but also for the loss which injured has suffered as a result of such injury. 23. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary damages (Special damages) and non pecuniary damages (general damages). 24. In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been discussed. In MACA.No.2750 of 2012 13 personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages for pain, suffering and trauma as a consequence of the injuries. In cases of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earning (and other gains) which the injured would have made had he not been injured, comprising : - Loss of future earnings on account of permanent disability, Future medical expenses, Loss of amenities (and/or loss of prospects of marriage) and Loss of expectation of life (shortening of normal longevity). The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss of expectation of life involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. 25. In **Raj Kumar** the Apex court while dealing with MACA.No.2750 of 2012 14 assessment of compensation with respect to claimant who suffers permanent disability has categorically held that the assessment of compensation in such cases under the head of loss of future earnings depend upon the effect and impact of the permanent disability on his earning capacity. It would state that the Tribunal has to decide whether there is any permanent disability and if so the extend of such permanent disability that is the Tribunal has to decide whether the disability is permanent or temporary. If the disablement is permanent whether is permanent total or permanent partial disablement and if it is reference to any specific limp that the effect of such disablement of the limb on the functioning of the entire body that is the permanent disability suffered by the person. If the Tribunal concludes that the permanent disability then it has to ascertain its extend and thereafter it has to be determined based upon the medical evidence whether such permanent disability has affected or will affect his earning capacity. The ascertainment of permanent disability on the actual earning capacity alleged to involve three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of permanent MACA.No.2750 of 2012 15 disability. The second step is to ascertain his avocation, profession and nature of work before the accident as also his age. The third step is to find out whether the claimant is totally disabled from earning any kind of livelihood or whether in spite of permanent disability the claimant could carry effectively on the activities and functions which he was earlier carrying on or whether he is prevented or restricted from discharging his previous activities and functions. It is also held with example that if a hand of claimant is amputated the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter the actual loss of earning capacity may virtually be 100%, if he neither able to drive or do carpentry. It is also held that if the claimant was a clerk in Government Service the loss of left hand may not result in loss of employment and he may still be continued as a clerk and perform his clerical functions. The loss of earning capacity would not be 100% as in the case of a driver or carpenter. 26. So, in the present case, documents produced from the side of the claimant would establish that he suffers Osteomyelitis of the calcaneus and talus while undergoing treatment during MACA.No.2750 of 2012 16 19.2.2011 to 15.3.2011 and it is also noted in Exhibit A11 that there was swelling of ankle and pain of left ankle and ulcer on lower aspect of ankle and discharge of pus and swelling around left ankle joint and tenderness of pus. But in Exhibit X1 without any details of examination or assessment, medical board in a single sentence certified that he has partial permanent disability at 15%. In order to accept Exhibit X1 disability certificate also there are no details. Where as Exhibit A8 disability certificate certifies 40% permanent disability. In view of the vast variance in percentage of disability noted in the two certificates the Tribunal ought to have examined any of the members of the Board to ascertain the genuineness of the Exhibit X1 certificate. In view of the grievous nature of injuries, the Tribunal ought not have adopted the percentage of disability at 20% alone ignoring Exhibit A8 the disability certificate issued by Kanyakumari Medical College, Hospital, Nagarcoil, where the claimant undergone the treatment, which certifies 40% permanent disability. 27. **Pappu Deo Yadav v. Naresh Kumar and Ors.** (Civil Appeal No.2567/2020) wherein three judge bench of the Apex Court held that just compensation should include all elements that MACA.No.2750 of 2012 17 would go to place the victim in as near a position as she or he was in before the occurrence of the accident. Whilst no amount of money or other material compensation can erase the trauma, pain and suffering that a victim undergoes after a serious accident, monetary compensation is the manner known to law therby society assures some measure of restitution to those who survive and the victim who have to face their lives. 28. The claimant is a coolie, the medical records would prove the prolonged treatment involving 112 days inpatient treatment in total undergone by the claimant. Exhibit A9 photographs and A10 CD would give a clear picture of his left leg and no one will have any doubt in concluding on looking at left leg of the claimant that it may not be possible for him to do any heavy work with that leg. In the award passed by the Tribunal also it has been specifically noted by the Tribunal that while the claimant appeared in person before the Tribunal he was heavily limping while walking with the aid of a walking stick, a hand crutch. The left foot and ankle, are seen severally oedematous that was on 21.5.2011, almost after 5 years of the incident. 29. From the above, the disability of 40% certified by the MACA.No.2750 of 2012 18 Chairman of the Medical Board, Kanyakumari Medical College, cannot be totally ignored. The permanent disability taken at 20% by the Tribunal also does not appear to meet the just compensation. Hence, taking into totality of facts and circumstances, the permanent whole body disability is taken as 30%. 30. The claimant has stated the age as 27 years in the claim petition. Tribunal based on it adopted multiplier of '17'. But, Exhibit A8 National identity card and Pass Book with Disability certificate dated 07-8-2009 would state his age as 36 years. Exhibit X1 disability certificate of the Medical Board dated 13-5-2010 would also state his age as 36 years. The accident was in 2005. So, at any rate he would be above 30 years at the time of accident and not 27. Hence, the suitable multiplier would be '16' and not 17. 31. So the amount towards **permanent disability** can be computed as follows: Rs.4,000x12x16x30/100=Rs.2,30,400/-. Out of the same the amount already awarded by the Tribunal is to be deducted ie. Rs.2,30,400–1,22,400= **Rs.1,08,000/-** . So the total enhanced compensation would be **Rs.1,08,000 + 10,400 + 9,000** **= Rs.1,27,400/-.** MACA.No.2750 of 2012 19 32. In the result, the appellant/claimant will be entitled for enhanced compensation of **Rs.1,27,400/- (Rupees one lakhs twenty seven thousand and four hundred only)** in this appeal, which will carry interest at the rate of **7.5%** per annum from the **date of petition ie. 29.6.2005** excluding the period of delay of 423 days in filing the appeal. The 1[st] respondent is directed to pay the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment, after deducting the liability of appellant/claimant towards balance court fee. The appellant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. There will be no order as to costs. Sd/- ## **M.R.ANITHA JUDGE** SMF