Kerala High Court
Jose vs The Managing Director, Ksrtc on 20 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 20TH DAY OF JULY 2021 / 29TH ASHADHA, 1943
MACA NO. 2412 OF 2010
AGAINST THE AWARD DATED 30.04.2010 IN O.P.(MV)NO.268/2007 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA, THRISSUR
APPELLANTS/PETITIONERS IN OP(MV)
JOSE,
AGED 19 YEARS,
S/O.ANTHONY,
ELANJIKKAL HOUSE,
PULINKARA DESOM,
KUTTICHIRA VILLAGE P.O.,
MUKUNDAPURAM TALUK, THRISSUR DISTRICT.
BY ADVS.SRI.P.V.BABY
SRI.A.N.SANTHOSH
RESPONDENTS/RESPONDENTS 1 AND 2 IN OP(MV)
1 THE MANAGING DIRECTOR,
KERALA STATE ROAD TRANSPORT CORPORATION LTD.,
TRIVANDRUM.
2 POULOSE,
S/O.K.K.MATHEW,
KAITHARATH HOUSE, KANJIRAPPILLY P.O.,
KOTTAYAM DISTRICT.
BY ADVS.SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC
SMT.BIMALA BABY, SC, KSRTC
SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC
SRI.P.C.CHACKO(PARATHANAM)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 20.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.2412/2010
-:2:-
Dated this the 20th day of July,2021
JUDGMENT
The appellant was the petitioner in O.P (MV)
No.268/2007 on the file of the Motor Accidents Claims
Tribunal,Irinjalakuda. The respondents in the appeal
were the respondents 1 and 2 before the Tribunal. The
parties are for the sake of convenience, referred to as
per their status before the Tribunal.
2. The facts in brief, relevant for the
determination of the appeal, are : on 01.01.2007, while
the petitioner was riding pillion on motorcycle bearing
registration No.KL-7/AB-3292 through the
Ollur-Thrissur road, a KSRTC bus bearing registration
No.KL-15/5658(offending vehicle) driven by the second
respondent hit the motorcycle. The petitioner
sustained serious injuries and was treated at the
District Hospital, Thrissur as an inpatient for a period
M.A.C.A.No.2412/2010
of 12 days. The petitioner was a workshop helper and
earning a monthly income of Rs.6,000/-. The accident
occurred solely due to the negligence of the second
respondent, who drew the offending vehicle in a rash
and negligent manner. The first respondent was the
owner of the bus and, therefore, was vicariously liable
the compensation amount to the appellant. The
appellant claimed a total amount of Rs.6,02,000/- from
the respondents, which was limited to Rs.3,00,000/-.
3. Respondent Nos.1 and 2 filed a joint written
statement, inter alia, contending that the accident
occurred solely on account of the negligence of the
rider of the motorcycle, who drew the vehicle in a rash
and negligent manner and that the amount of
compensation claimed in the petition was exorbitant
and excessive.
4. The petitioner and the legal representatives
of the deceased, rider of the motorcycle filed O.P.
(MV)No.269/2007 before the same Tribunal seeking
M.A.C.A.No.2412/2010
compensation on account of the death of the rider.
5. The Tribunal consolidated and jointly tried
the original petitions. The petitioner produced and
marked Exts.A1 to A8 in evidence.
6. The Tribunal by its common award allowed
claim petition filed by the petitioner permitting him to
realise an amount of Rs.89,500/- from the respondents.
7. Dissatisfied with the quantum of
compensation awarded by the Tribunal, the petitioner
is in appeal.
8. Pursuant to the order of this Court on
24.01.2020, the petitioner was referred to the
Disability Assessment Board of the Government
Medical College Hospital, Mulamkunnathkavu,
Thrissur.
9. The Medical Board by certificate dated
19.02.2020 has certified that the petitioner has a
disability of 45%. The said certificate is accepted on
record and marked as Ext.X1.
M.A.C.A.No.2412/2010
Notional income:
10. The petitioner had claimed that he was
helper in a workshop and getting a monthly income of
Rs.6,000/-. Nevertheless, the Tribunal fixed the
notional income of the petitioner at Rs.2,500/- per
month.
11. In Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited
[(2011) 13 SCC 236], the Hon'ble Supreme Court has
fixed the notional income of a coolie worker in the year
2004, at Rs.4,500/- per month.
12. Following the ratio in the afore-cited decision
and considering the fact that the accident occurred in
the year 2007, I am of the opinion that the petitioner's
notional income can safely be fixed at Rs.6,000/- as
claimed in the claim petition.
Loss due to disability:
13. In view of the assessment of the disability of
M.A.C.A.No.2412/2010
the petitioner at 45% by the Medical Board in Ext.X1
and considering his income at Rs.6,000/- per month
and the relevant multiplier being '11', I hold that the
petitioner is entitled for a compensation under the
head 'loss due to disability' at Rs.4,21,200/-.
Loss of earnings:
14. The petitioner had sustained fractures to his
right femur and fracture of his proximal right humerus
and he was hospitalised for a period of 12 days. He has
also sustained disability of 45%. In the said
circumstances, I fix his period of incapacity at four
months.
15. In view of the re-fixation of the notional
income of the petitioner at Rs.6,000/- per month and
the period of incapacity at four months, I re-fix his
'loss of earnings' at Rs.24,000/-
16. With respect to the other heads of
compensation namely; transport, bystander expenses,
medical expenses, pain and sufferings and loss of
M.A.C.A.No.2412/2010
amenities, I find that the Tribunal has awarded
reasonable and just compensation.
17. On an overall re-appreciation of the pleadings
and materials on record and the law referred to in the
afore-cited decision, I am of the definite opinion that
the appellant/petitioner is entitled for enhancement of
compensation as modified and re-calculated above and
given in the table below for easy reference.
Sl.No Head of claim Amount Amounts
awarded by the modified and
Tribunal (in recalculated
rupees) by this Court
1 Loss of earnings 10,000 24,000
2 Medical expense 42,300 42,300
3 Bystander 1,200 1,200
expenses
4 Transport 1,000 1,000
expenses
5 Pain and sufferings 20,000 20,000
6 Loss of amenities 15,000 15,000
7 Loss due to Nil 4,21,200
disability
TOTAL 89,500/- 5,24,700/-
18. Even though the appellant had claimed only
M.A.C.A.No.2412/2010
an amount of Rs.3,00,000/- in the claim petition, in the
light of the law laid down by the Hon'ble Supreme
Court in Nagappa v. Gurudayal Singh [2003(1) KLT
115 (SC)] that there is no restriction in the courts
awarding more compensation than what is claimed in
the claim petition since just compensation is to be
awarded; I have no hesitation to award the appellant
an amount of Rs.5,24,200/- as compensation i.e., the
enhancement of Rs.4,35,200/-.
In the result, the appeal is allowed by enhancing
the compensation by a further amount of Rs.4,35,200/-
with interest at the rate of 6% per annum from the
date of petition till the date of deposit and
proportionate costs. The first respondent shall deposit
the enhanced compensation with interest and
proportionate costs within a period of sixty days from
the date of receipt of a certified copy of this judgment.
The Tribunal shall disburse the enhanced
compensation to the petitioner in accordance with law.
M.A.C.A.No.2412/2010
All pending interlocutory applications will stand
closed.
Sd/-
C.S.DIAS,JUDGE
DST //True copy/
P.A.To Judge
