Pramodan/Pramod vs Managing Director,Ksrtc Fort ...
2022 Latest Caselaw 736 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
              THE HONOURABLE MRS. JUSTICE C.S. SUDHA
   MONDAY, THE 17TH DAY OF JANUARY 2022 / 27TH POUSHA, 1943
                       MACA NO. 1718 OF 2019
 AWARD DATED 30.01.2019 IN OP(MV) NO. 710/2017 OF ADDITIONAL
DISTRICT COURT, KOZHIKODE / I ADDITIONAL MOTOR ACCIDENT CLAIM
                        TRIBUNAL, KOZHIKODE.


APPELLANT/PETITIONER:

             [email protected]
             AGED 52 YEARS
             S/O. KRISHNANUNNI NAIR, THAZHETH PARAMBATH HOUSE,
             MYDHILI KRISHNA, CHEVAYUR, CHEVARAMBALAM,
             KOZHIKODE-673 017.

             BY ADV AVM.SALAHUDIN


RESPONDENTS/RESPONDENTS:

    1        MANAGING DIRECTOR,KSRTC FORT, THIRUVANANTHAPURAM
             PIN-695 023.
    2        SURESH E.B,
             S/O. T.K. BHASKARAN, EZHAPARAMBIL HOUSE, KARIMBA
             P.O, MANNARKAD, PALAKKAD-678 597.
    3        NEW INDIA ASSURANCE COMPANY LTD,
             DO-II, II FLOOR, REMA PLAZA, NEAR AYYAPPAN COIL, SS
             COIL , SS COIL ROAD, THAMAPANOOR-695 001.

             BY ADVS.
             SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT
             CORPN.
             SRI.LAL K.JOSEPH

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 18.12.2021, THE COURT ON 17.01.2022 DELIVERED THE
FOLLOWING:
 M.A.C.A.No. 1718 of 2019

                                    2



                              C.S.SUDHA, J
                   ---------------------------------------
                      M.A.C.A.No. 1718 of 2019
                   ---------------------------------------
                Dated this the 17th day of January, 2022


                             JUDGMENT

The appellant is the petitioner in OP(MV) No.710/2017 on

the file of the Additional Motor Accidents Claims Tribunal-I,

Kozhikode ('the Tribunal'). The respondents in the appeal are the

respondents before the Tribunal. The parties herein will be referred to

as described before the Tribunal.

2. The petitioner filed claim petition under Section 166 of the

Motor Vehicles Act, 1988 ('the Act') claiming compensation for the

injuries sustained by him in a traffic incident which took place on

24.10.2016 at 11:00 a.m. According to the petitioner, while he was

riding his motor cycle bearing registration No.KL-11/AS-8069 from

Chevarambalam-Pantheerakavu, a KSRTC bus bearing registration

No.KL-15/A-0590 driven by the second respondent in a rash and

negligent manner knocked him down, due to which he sustained M.A.C.A.No. 1718 of 2019

grievous injuries resulting in amputation of his right leg below the

knee. At the time of the incident, he was working as a Security

Officer at Vythiri Holiday Resort in Wayanad, drawing a monthly

salary of `20,000/-. As a result of the injuries sustained, he was

hospitalized on three occasions for a total period of 53 days. Due to

the injuries sustained, he is unable to work as a Security Officer. He

has been unable to enjoy the amenities of life apart from suffering

from dis-figuration due to amputation. Considerable amount of

money has been spent for his treatment and much more is required for

his future treatment. The petitioner claimed compensation under

various heads totalling an amount of `79,42,000/-, which was limited

to `50,00,000/-.

3. The first respondent, KSRTC, filed objections contending

that the incident occurred due to the rash and negligent driving of the

petitioner and that the second respondent, the driver, was driving very

carefully and at a moderate speed. According to the first respondent,

the bus had a valid insurance policy at the relevant time. The claim

made is excessive. If at all any amount is payable to the petitioner, the

third respondent-insurer is liable for the same. M.A.C.A.No. 1718 of 2019

4. The second respondent, driver, entered appearance but did

not file any objections or contest the matter.

5. The third respondent, insurer, admitted that the vehicle had

a valid insurance policy. According to the third respondent, the claim

is excessive. There was no rashness or negligence on the part of the

second respondent. On the other hand, it was the petitioner who was

rash and negligent in driving his vehicle. The third respondent also

contended that if at all they are liable, the liability is restricted to the

policy conditions, beyond which they are not liable.

6. On completion of the pleadings, opportunity was given by

the Tribunal to the parties for adducing evidence. The petitioner

examined himself as PW1 and Exts.A1 to A9 and C1 were marked.

Ext.A10 was marked subject to the objection raised by the third

respondent. No oral or documentary evidence was adduced by the

respondents.

7. The Tribunal after considering the pleadings and evidence

on record, directed the third respondent to deposit an amount of

`18,87,906/- towards compensation payable to the petitioner within a

period of two months from the date of the order with interest at the M.A.C.A.No. 1718 of 2019

rate of 9% per annum from the date of petition till the date of deposit.

Aggrieved by the quantum of compensation awarded, the petitioner is

before this Court in this appeal.

8. Heard Sri.A.V.M.Salahuddeen, the learned counsel

appearing for the appellant/petitioner and Sri.Lal.K.Joseph, the

learned counsel appearing for the third respondent.

9. The only point that arises for consideration is whether the

quantum of compensation awarded by the Tribunal is a fair and

reasonable sum.

Notional Income

10. The petitioner contended that at the time of the incident,

he was working as Security Officer drawing a monthly salary of

`20,000/-. In support of the said contention, he relied on Ext.A10 as

per which he was earning an amount of `20,000/- per month. The

marking of Ext.A10 was objected to by the third respondent and

therefore the Tribunal is seen to have marked the document subject to

the objection raised. No steps seem to have been taken by the

petitioner to prove Ext.A10 by examining the person who issued the

same. Hence the Tribunal declined to rely on Ext.A10. The petitioner M.A.C.A.No. 1718 of 2019

has been unable to establish that the Tribunal went wrong in refusing

to rely on Ext.A10.

11. In the absence of any evidence to establish the monthly

income of the petitioner, the Tribunal taking into account the fact that

he is an ex-service man, fixed the monthly income at `10,000/- per

month. This is challenged by the petitioner. Following the yardstick

laid down by the Apex Court in Ramachandrappa v. Manager,

Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13

SCC 236] and taking into account the fact that the incident took place

in the year 2016, the notional income can be fixed as `10,500/- per

month. The Tribunal granted 10% increase towards loss of future

prospects relying on National Insurance Co. Ltd. v. Pranay Sethi

(2017(5) KHC 350). There is no dispute regarding the multiplier '11'

adopted by the Tribunal. Therefore, the notional income is reassessed

as `11,550/- (`10,500 + `1,050).

Permanent Disability/Loss of future income/Loss of earning

12. As per Ext.C1 disability certificate issued by the Medical

Board, the petitioner has 70% disability. The petitioner had lost his

right leg below the knee in the incident. Therefore, considering the M.A.C.A.No. 1718 of 2019

fact that he is an ex-service man and that in all probability he could

have secured employment as a Security Officer or a similar job which

would involve use of both upper and lower limb, the Tribunal fixed his

occupational permanent disability at 80%. In the appeal

memorandum, it is contended that, as the petitioner sustained 70%

permanent disability, he is unable to continue in his job or do any

other job. In such circumstance, the Tribunal ought to have found that

he had sustained 100% functional disability. In support of this

argument, reference is made to the case of National Insurance

Co.Ltd. v.Subhasis Manna (2020 KHC 4330). In the said case, the

injured was working as a Salesman in a medical shop earning an

amount of `4,200/- per month with annual increment of `250/-. As a

result of the incident he lost his job. As per the disability certificate

the claimant had suffered permanent disability to the extent of 70%.

The Tribunal on the finding that he was unable to travel without the

assistance of an escort and earn his livelihood independently, assessed

his functional disability as 100%. This finding was confirmed by the

High Court. Relying on the aforesaid decision, the argument

advanced is that the Tribunal in this case also ought to have assessed M.A.C.A.No. 1718 of 2019

the functional disability of the claimant as 100%.

13. I am unable to agree to this argument because it was on

the basis of the evidence adduced that 100% functional disability was

assessed in the aforesaid case. A reading of the decision would show

that the Tribunal on the finding that the claimant was unable to travel

without the assistance of an escort and earn his livelihood

independently, assessed his functional disability at 100%, which was

confirmed by the High Court. In the instant case, on the basis of the

evidence adduced, the Tribunal has assessed the functional disability

to be 80%. I do not find any infirmity in the said conclusion. The

petitioner therefore would be entitled to `12,19,680/-

(`11,550x12x11x80/100) under this head.

Loss of earnings

14. The petitioner had been hospitalized for a period of 53

days. The Tribunal found that a further period of at least 37 days

would have been necessary for the petitioner for recuperation/

convalescence. Therefore, loss of earnings of `33,000/- was granted.

According to the petitioner, a period of 90 days fixed is too short a

period and a period of atleast 24 months or two years should have M.A.C.A.No. 1718 of 2019

been taken as the period of convalescence. Reference was made to the

case of Kavitha v. Deepak [(2012) 8 SCC 604] in support of the

argument. Here again I disagree with the argument advanced as the

fact situation in the reported decision is completely different from the

case on hand. The third respondent does not dispute the injuries or the

fact that the petitioner's right leg had to be amputated. Therefore, a

period of three months given for convalescence appears to be too short

a period. A period of six months appear to be reasonable. Therefore,

loss of earnings on this ground would work out to `69,300/- (`11,550

x 6 months).

Bystander expenses and Extra nourishment

15. The petitioner claims an amount of `15,000/- as bystander

expenses. Expenses at the rate of `200/- per day for 53 days, totalling

an amount of `10,600/- was granted by the Tribunal. According to the

petitioner, this is too low an amount and bystander expenses at the rate

of atleast `500/- per day ought to have been granted. This is a case in

which the petitioner was an inpatient for 53 days. Therefore,

bystander expenses at the rate of `300/- per day appears to be

reasonable. Hence, the amount he would be entitled under this head is M.A.C.A.No. 1718 of 2019

`15,900/- (53 x `300/- per day).

16. The petitioner claimed `15,000/- for extra nourishment.

The Tribunal granted it at the rate of `150/- per day. According to the

petitioner, an amount of `500/- per day ought to have been granted

under this head. I disagree as the amount of `150/- per day granted by

the Tribunal appears to be quite reasonable.

Other heads of compensation

17. I find that reasonable and just compensation has been

awarded with respect to the other heads of claim and therefore, the

same does not require any re-assessment.

18. Hence, I hold that the appellant/petitioner is entitled to

enhanced compensation as given in the table below.

Sl.No. Head of Claim Amount Amount Amount which awarded by the modified by this the appellant/ Tribunal (in `) Court (in `) petitioner is entitled to (in `) 1 Loss of earnings 33,000/- 69,300/- 69,300/-

2      Transportation              10,000/-       -                10,000/-
3      Extra nourishment           7,950/-        -                7,950/-
4      Bystander expenses          10,600/-       15,900/-         15,900/-
5      Damage to clothings and 2,000/-            -                2,000/-
       articles
6      Medical and treatment 1,07,066/-           -                1,07,066/-
 M.A.C.A.No. 1718 of 2019



       expenses
7      Future              treatment 35,690/-     -          35,690/-
       expenses
8      Permanent occupational 11,61,600/- 12,19,680/-        12,19,680/-
       disability
9      Pain and sufferings          1,20,000/-    -          1,20,000/-
10     Loss of amenities            3,50,000/-    -          3,50,000/-
11     Dis-figuration               50,000/-      -          50,000/-
       Total                        18,87,906/-              19,87,586/-

In the result, the appeal is partly allowed with costs. The

appellant/petitioner is awarded a total compensation of `19,87,586/-

with interest at the rate of 9% per annum from the date of the claim

petition till the date of deposit. The third respondent is ordered to

deposit the compensation with interest and costs before the Tribunal

within a period of 60 days from the date of receipt of a certified copy

of this judgment. On deposit of the amount, the Tribunal shall

disburse the compensation amount to the appellant in accordance with

law.

Sd/- C.S.SUDHA JUDGE lsn