Kerala High Court
J.Mary vs The Managind ... on 2 July, 2021
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MACA No.1683 of 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
MACA NO. 1683 OF 2010
AGAINST THE ORDER/JUDGMENT IN OPMV 260/2004 OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL ,KALPETTA, WAYANAD
APPELLANT/S:
J.MARY, AGED 51 YEARS
W/O.JOY, KADAKKAL VEEDU, ERUMAKOLLY,, MEPPADI.
BY ADV SMT.CELINE JOSEPH
RESPONDENT/S:
THE MANAGING DIRECTOR,
KSRTC, THIRUVANANTHAPURAM, (R.C.OWNER OF THE VEHICLE
BEARING NO.TP 452 KSRTC BUS).
BY ADVS.
SRI.P.C.CHACKO, STANDING COUNSEL, KERALA STATE ROAD
TRANSPORT CORPN.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME
UP FOR ADMISSION ON 02.07.2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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MACA No.1683 of 2010
C.S DIAS,J.
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MACA No.1683 of 2010
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Dated this the 2nd day of July, 2021.
JUDGMENT
The appellant was the petitioner in OP (MV) 260/2004
on the file of the Motor Accidents Claims Tribunal, Kalpetta,
Wayanad. The respondent in the appeal was the second
respondent in the claim petition. The parties are, for the
sake of convenience, referred to as per their status in the
claim petition.
2. The facts in brief in the claim petition, relevant for
the determination of the appeal, are: on 1.2.2004, while the
petitioner was travelling in a bus bearing registration No.TP
452 owned by the second respondent- Corporation, when
the bus reached Madakkimala, Wayanad, it hit on an
electric post and overturned. The petitioner sustained
MACA No.1683 of 2010
injuries and was treated at Leo Hospital, Kalpetta and,
thereafter, at the Medical College Hospital, Calicut. She
was treated as inpatient from 2.2.2004 to 9.2.2004. She
sustained a mild diffused cerebral edema and depressed
fracture left parietal region. She was indisposed for a
period of one year. The petitioner was a coolie worker in a
Tea Estate and earning a monthly income of Rs.4,000/-. The
accident occurred solely on account of the negligence of the
first respondent, who drove the bus in a rash and negligent
manner. The petitioner claimed compensation from the
respondents, which she quantified at Rs.4,47,000/-, but
limited to Rs.1,50,000/-.
3. The respondents filed written-statements, inter
alia, contending that while the first respondent attempted
to save the life of a pedestrian, who recklessly crossed the
road, the vehicle moved to the extreme side of the road and
hit against an electric post. Therefore, there was no
MACA No.1683 of 2010
negligence on the part of the first respondent. The amount
of compensation claimed under different heads was
excessive.
4. The appellant was examined as PW1 and Exts A1
to A7 were marked in evidence.
5. The Tribunal, after analysing the pleadings and
materials on record, by the impugned award allowed the
claim petition, in part, by permitting the petitioner to
realise an amount of Rs.29,000/- with interest at the rate of
7.5% per annum from the date of petition till the date of
realisation and proportionate costs from the second
respondent.
6. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the petitioner is in appeal.
7. Heard the learned counsel appearing for the
appellant/ petitioner and the learned counsel appearing for
the respondent/second respondent - Corporation.
MACA No.1683 of 2010
8. The sole question that emerges for consideration
in this appeal is whether the quantum of compensation
awarded by the Tribunal is just and reasonable.
9. A Constitution Bench of the Hon'ble Supreme
Court in National Insurance Company Ltd. v. Pranay
Sethi [(2017) 16 SCC 680], has held that Section 168 of
the Motor Vehicles Act, 1988, deals with the concept of 'just
compensation', and the same has to be determined on the
foundation of fairness, reasonableness and equitability on
acceptable legal standards. The conception of 'just
compensation' has to be viewed through the prism of
fairness, reasonableness and non-violation of the principle
of equitability.
10. Exts A1 FIR, A2 scene mahazar and A5 AMVI
report substantiates that the accident occurred on account
of the negligence of the first respondent who drove the bus
in a rash and negligent manner and hit against an electric
MACA No.1683 of 2010
post. Admittedly, the bus belonged to the second
respondent - Corporation. Therefore, the second
respondent is vicariously liable to pay compensation to the
appellant.
11. Although the appellant had contended that she
had suffered permanent disability on account of the
accident, she failed to produce a disability certificate.
Hence, the Tribunal rightly disallowed the claim for
compensation due to loss of disability.
12. The appellant had claimed that she was a coolie
worker in a Tea Estate and drawing a monthly income of
Rs.4,000/-. However, the Tribunal fixed her notional income
at Rs.3,000/-.
13. The Hon'ble Supreme Court in Ramachandrappa
v. Manager, Royal Sundaram Alliance Insurance
Company Limited [(2011) 13 SCC 236] has fixed the
notional income of a coolie worker in the year 2004 at
MACA No.1683 of 2010
Rs.4,500/- per month.
14. In light of the ratio laid down in the aforecited
decision and the fact that the appellant had claimed that
she was earning a monthly income of Rs.4,000/- per month,
I refix her income at Rs.4,000/-.
15. It is on record that the appellant was incapacitated
for a period of three months as fixed by the Tribunal.
Therefore, I enhance the compensation under the head 'loss
of earnings' in view of the refixation of her notional income
by a further amount of Rs.3,000/-, i.e., Rs.12,000/-,
instead of Rs.9,000/- fixed by the Tribunal.
16. The appellant had claimed compensation under
the head 'pain and sufferings' at Rs.50,000/-. However, the
Tribunal only awarded an amount of Rs.15,000/-.
17. Taking into account the fact that the appellant had
suffered a head injury as well as fractures and that she was
hospitalized in two hospitals for a period of 8 days as an
MACA No.1683 of 2010
inpatient and was incapacitated for a period of three
months, I am of the firm opinion that the appellant is
entitled for enhancement of compensation by a further
amount of Rs.10,000/- under the head 'pain and
sufferings'.
18. With respect to the other heads of claim, I find
that the Tribunal has awarded reasonable and just
compensation.
19. On an overall re-appreciation of the pleadings,
materials on record and the law laid down in the afore-cited
precedents, I am of the firm opinion that the appellant is
entitled for enhancement of compensation, as discussed
above, by a further amount of Rs.13,000/-.
In the result, the appeal is allowed, in part, by
enhancing the compensation by a further amount of
Rs.13,000/- (Rupees Thirteen Thousand only) with interest
on the enhanced compensation at the rate of 7.5% per
MACA No.1683 of 2010
annum from the date of claim petition till the date of
realisation, after deducting the period of 250 days, i.e., the
period of delay in preferring the appeal and as ordered by
this Court on 4.12.2019 in C.M Appln 2128/2010, and
proportionate costs. The respondent/second respondent
shall deposit the enhanced compensation awarded in the
appeal before the Tribunal together with interest and
proportionate costs within a period of two months from the
date of receipt of a certified copy of the judgment. The
Tribunal shall release the enhanced compensation to the
appellant, in accordance with law.
sd/-
Sks/2.7.2021 C.S.DIAS, JUDGE
