Kerala High Court

D.V.Suresh Kumar vs The Kerala State Road Transport ... on 11 June, 2024

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
      TUESDAY, THE 11TH DAY OF JUNE 2024 / 21ST JYAISHTA, 1946
                        MACA NO. 198 OF 2018
AGAINST THE ORDER/JUDGMENT DATED IN OPMV NO.508 OF 2010 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL

APPELLANT/APPLICANT:

          D.V.SURESH KUMAR
          S/O. DIVAKARAN NAIR, SOUPARNIKA MAVARAVILA
          LANE,POOJAPPURA, POOJAPPURA (PO),MUDAVANMUGHAL,
          THIRUVANANTHAPURAM.
          BY ADVS.
          SRI.R.ANILKUMAR
          SRI.G.RADHAKRISHNAN

RESPONDENTS:

          THE KERALA STATE ROAD TRANSPORT CORPORATION
          REPRESENTED BY MANAGING DIRECTOR,TRANSPORT BHAVAN,
          THIRUVANANTHAPURAM-695 001.

          BY ADVS.
          SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN.
          ALEX ANTONY SEBASTIAN P.A.


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 11.06.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 198 OF 2018                          2


                             J U D G M E N T

This appeal is at the instance of the

claimant in OP(MV) No.508 of 2010 on the file

of Motor Accidents Claims Tribunal, Attingal

impugning the award on the ground of inadequacy

of compensation.

2. On 22/8/2009 at 2.45 pm, while the

appellant/claimant was travelling in a maruthi

car through Kallambalam-Varkala road,

KL-15/2575 KSRTC bus driven by the 2nd

respondent in a rash and negligent manner

dashed against the car, and the appellant

sustained serious injuries including head

injury causing diffuse axonal injury to the

brain. He suffered permanent disability of 30%.

He was hospitalized for 53 days in total. Even

after discharge, he was continuing OP treatment

till 13/5/2010. He was a 31 year old medical

distributor, earning monthly income of

Rs.5,000/- as on the date of accident. He

approached the Tribunal claiming compensation

of Rs.5 lakh. But learned Tribunal awarded only

Rs.80,730/- and hence this appeal.

3. The 1st respondent owner of the KSRTC

bus, and the 2nd respondent driver, entered

appearance before the tribunal, and contested

the case.

4. Learned Tribunal on analyzing the facts

and evidence found that the accident occurred

due to the rash and negligent driving of the

KSRTC bus by the 2nd respondent. So the 1st

respondent owner-Managing Director, KSRTC was

directed to compensate the claimant. No appeal

has been preferred against the award by the

respondents.

5. In the appeal filed by the claimant,

KSRTC is the sole respondent.

6. Now this Court is called upon to answer

whether there is any illegality, irregularity

or impropriety in the impugned award warranting

interference by this Court.

7. Heard learned counsel for the appellant

and learned counsel for the respondent.

8. Learned counsel for the respondent would

submit that the compensation awarded by the

tribunal is just and reasonable, and hence it

needs no modification. Whereas learned counsel

for the appellant would argue that the

compensation awarded by the tribunal is too

meager and arbitrary.

9. Learned counsel for the appellant would

say that the appellant was a 31 year old

medical distributor earning monthly income of

Rs.5,000/-. In order to prove that fact he

produced Ext.A19 salary certificate before the

tribunal which shows that the monthly salary of

the appellant was Rs.5,000/- and apart from

that he was drawing commission amount of

Rs.2,000/-. Even relying on the decision

Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Limited [AIR 2011 SC

2951], he was eligible to get his notional

income fixed @ Rs.7,000/- in the year 2009. So

there was no reason to reject his contention

that he was earning monthly income of

Rs.5,000/-. So this Court is inclined to fix

his notional income @ Rs.5,000/- as claimed by

him.

10. Towards loss of earning, learned

Tribunal awarded Rs.24,000/- for a total period

of six months. Ext.A6 treatment certificate

will show that the appellant had suffered head

injury on left occipital lobe, contusion with

fracture at left fibula, middle one third and

fracture of clavicle left, distal end. He was

hospitalized for 53 days. Exts. A6 to A13

documents will show that he was continuing his

treatment till 13/5/2010. Ext.A23 disability

certificate issued by the medical board shows

that he had suffered 30% permanent disability.

Considering all these aspects this court is of

the view that loss of income for a period of

nine months is only reasonable. So, @

Rs.5,000/- per month he is entitled to get

Rs.45,000/- as loss of income for nine months.

After deducting Rs.24,000/- already awarded by

the tribunal he is entitled to get Rs.21,000/-

as enhanced compensation towards loss of

income.

11. Towards transportation expenses, learned

Tribunal awarded only Rs.1,000/-, against his

claim of Rs.4,000/-. He was hospitalized for

53 days and even after discharge he was

continuing treatment as an outpatient. Exts.A11

and A13 OP tickets substantiate that fact. So

this court is inclined to award Rs.1,500/-

more, towards transportation expenses.

12. Towards extra nourishment, learned

Tribunal awarded only Rs.1,000/- against his

claim of Rs.4,000/-. The appellant was

hospitalized for 53 days and he was on rest

even after discharge from hospital. He might

have been on special diet to regain his health.

So this court is inclined to award Rs.2,000/-

more, under the head extra nourishment.

13. Towards bystander expenses, learned

Tribunal awarded only Rs.3,750/-. The appellant

was hospitalized for 53 days, and even after

discharge from hospital, he might have been in

need of an assistant to carry out his day to

day affairs, as he had suffered serious head

injury. So this court is inclined to award

Rs.10,000/- more, towards bystander expenses.

14. Towards pain and suffering, this court

is inclined to award Rs.15,000/- more,

considering the nature of injuries suffered,

and also the period of hospitalization.

15. Coming to the disability compensation,

Ext.A23 disability certificate issued by the

medical board headed by the District Medical

Officer of Health, Thiruvananthapuram shows

that the appellant had suffered serious head

injuries and the MRI-brain showed diffuse

axonal injury stage III. But learned Tribunal

simply rejected that disability certificate

stating that there was nothing in that

certificate to show, how the medical board

formed that opinion. The medical board was

constituted by a competent orthopedician and

two consultant psychiatrists. There were clear

findings in that certificate based on which

they assessed 30% permanent disability for the

appellant. Learned Tribunal had no competence

or expertise than the members of the Board who

were experts in the field. So the outright

rejection of Ext.A23 disability certificate by

the learned Tribunal is liable to be interfered

with. There is no justification for the

tribunal to reject Ext.A23, and then to find 3%

permanent disability, without assigning any

reasons for the same, except the consensus of

the respondent, stated in para 20 of the award.

Since a competent medical board assessed the

disability of the appellant as 30% permanent

disability, he was eligible to get compensation

for the disability reported by the medical

board.

16. This court has fixed his notional income

@ Rs.5,000/-. The multiplier applicable is 16

as he was aged 31 at the time of accident. So

the compensation for 30% disability can be

assessed as Rs.2,88,000 [5000x12x16x30/100].

After deducting Rs.24,480/- already awarded by

the tribunal, the appellant is entitled to get

Rs.2,63,520/- as enhanced compensation under

the head permanent disability.

17. Towards loss of amenities, learned

Tribunal awarded Rs.10,000/-. The appellant was

a 31 year old man working as a medical

distributor and he suffered serious head injury

in the accident resulting in 30% permanent

disability. So, this court is inclined to award

Rs.15,000/- more under the head loss of

amenities, considering the present as well as

future discomforts of the appellant.

18. The compensation awarded under all other

heads seems to be reasonable, and hence it

needs no modification.

19. The enhanced compensation awarded in this

appeal is stated in the table given below:-

                                  Amount             Amount        Difference to be
           Head of claim                                               drawn as
                                awarded by          awarded in
                                the Tribunal          appeal          enhanced
                                                                    compensation
                                                    45,000/-
      Loss of earning            24,000/-                               21,000/-
                                                    [5000x9]
      Transportation
                                  1000/-             2500/-              1500/-
      Expenses
      Extra nourishment           1000/-             3000/-              2000/-
      Bystander expenses          3750/-            13750/-             10,000/-
      Pain and suffering         15000/-            30,000/-            15,000/-
      Permanent                                    2,88,000/-
      Disability/Loss of                         [5000x12x16x          2,63,520/-
                                 24480/-
      earning power                                 30/100]
      Loss of amenities          10,000/-           25,000/-            15,000/-

                                               TOTAL                   3,28,020/-

20. So the appellant is entitled to get

enhanced compensation of Rs.3,28,020/-.

21. The respondent-Managing Director, KSRTC

is directed to deposit enhanced compensation of

Rs.3,28,020/- with 9% interest per annum, from

the date of petition till the date of

deposit, before the Motor Accidents Claim

Tribunal, Attingal, within a period of two

months from the date of receipt of a copy of

this judgment. Learned Tribunal shall disburse

that amount to the appellant after deducting

the liabilities, if any, towards Tax, balance