IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 MACA.No. 556 of 2005() ---------------------- OPMV.1331/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT(S): APPLICANT ----------------------- SUDHAKARAN, AGED 40, S/O.PARAMESWARAN PILLAI, "SARAYU", KOZHIKODE, ANAVOOR P.O., PERUMKADAVILLA, THIRUVANANTHAPURAM. BY ADV. SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): --------------- 1. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM. 2. C.V.JOSE, S/O.VARGHESE, VAKKAMCHIRAYIL VEEDU, MANACAUD, THODUPUZHA, MANACAUD VILLAGE, IDUKKI DISTRICT. ADV. SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC FOR R1 SHRI.JOHNSON P.JOHN, SC, KSRTC FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 556 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 27th day of July, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.1331 of 2000 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. He sustained the following injuries in a motor accident that occurred on May 25, 2000 at about 5.30 p.m.:- 1) Injury to spleen. 2) Fractured ribs 5 to 8 and the ilium on the left side apart from other minor injuries. 3) Injury to the chest and abdomen. He was suffering from haemopneumothorax and splenectomy was done. 2. The case of the appellant/claimant as testified by him as PW1 before the Tribunal was that while he was travelling in the K.S.R.T.C. Bus bearing registration No.KL-from Plamoodu to Thampanoor, the second respondent, driver of the bus, suddenly applied the brake as a result of which the claimant fell inside the bus and sustained injuries. According to him, the MACA 556/2005 2 accident occurred due to negligence of the second respondent. He filed the O.P. under section 166 of the Motor Vehicles Act, claiming a compensation of Rs.3,50,000/- against the respondents, the Managing Director, K.S.R.T.C. and the driver of the K.S.R.T.C. bus. 3. Only the first respondent contested the matter, contending that when the claimant attempted to got into the moving bus, fell down and sustained injuries and therefore he is not entitled to get any compensation from the respondents. The claimant was examined as PW1 and Exts.A1 to A9 were marked on his side. The second respondent was examined as RW1 on the side of the respondents. On an appreciation of the evidence, the Tribunal found that the claimant has failed to prove that the accident occurred due to negligence of the second respondent driver of the bus and awarded only a compensation of Rs.25,000/- under no-fault liability. The claimant has come up in appeal, challenging the said finding of the Tribunal. 4. Heard the learned counsel for the appellant and learned standing counsel for the respondents. MACA 556/2005 3 5. Following points arise for consideration:- 1)Whether the finding of the Tribunal that the claimant has failed to proof negligence on the part of the second respondent can be sustained? 2)In any event whether the claimant is entitled to compensation under section 163B of the Motor Vehicles Act? 3)What is the quantum of compensation the claimant is entitled to? 6. The specific case of the claimant was that while he was standing insider the bus, the driver suddenly applied the brake, as a result of which he was thrown out of the bus causing injuries to him. RW1 driver of the bus was also examined before the Tribunal. He denied the accident. It is revealed from Ext.A3 copy of the refer report of the criminal case that there was no negligence on the part of the driver of the bus. The claimant has not chosen to examine any independent witness to show that the accident happened as alleged by him. Therefore, the Tribunal is perfectly justified in coming to the conclusion that the claimant has failed to proof any negligence on the part of the driver of the bus. MACA 556/2005 4 7. The next question for consideration is whether the claimant is entitled to any compensation under section 163A of the Motor Vehicles Act. The claimant has filed the application under section 166 of the Motor Vehicles Act. The claimant sustained very serious injuries in this accident. Therefore, we feel that the application filed by him can be treated as an application under section 163A of the Motor Vehicles Act and compensation can be awarded. 8. Ext.A6 certificate of disability issued by the doctor showed that the claimant has sustained permanent disability of 16%. He had sustained upper respiratory tract infection. He had recurrent pain on the left hip and on the left side of the chest, low back pain, abdominal pain and had higher risk of contracting pneumococcal pneumonia as a sequal of spelnectomy. Therefore, the percentage of disability certified by the doctor in Ext.A6 appears to be reasonable and we are of the view that, that can be accepted. The claimant was aged 35 at the time of the accident and was earning Rs.6,000/- per month as a Contractor. Therefore, we feel that his monthly income can MACA 556/2005 5 reasonably be estimated at Rs.3,000/-. As he was aged 35 at the time of the accident, the multiplier of 16 would be reasonable in this case. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.92,160/-( Rs.3,000/- x 12 x 16 x 16%). 9. In the result, the claimant is entitled to an additional compensation of Rs.67,160/- He is entitled to interest @ 9% from the date of petition till realization. The first respondent being the owner of the offending bus shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. The award of the Tribunal is modified to the above extent. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn