IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 MACA.No. 293 of 2007(G) (OPMV.1204/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM) .................... APPELLANT(S): APPELLANT PRINCE ASOK, S/O.V.K.ASOKAN, `PRIYA', ERAVIPURAM P.O., KOLLAM. BY ADV. MR.P.V.CHANDRA MOHAN RESPONDENT(S): RESPONDENT 1. KERALA STATE ROAD TRANSPORT CORPORATION LTD., THE MANAGING DIRECTOR, K.S.R.T.C., HEAD OFFICE, THIRUVANANTHAPURAM. 2. PRINCE JAYACHANDRAN, BUSINESS MAN, `SILA', SANKAR NAGAR, CHINNAKADA, KOLLAM. 3. SURESH KUMAR, THOTATHILPURAYIDOM, ASRAMOM, KOLLAM. 4. SASIKUMAR, S/O.SANKARAN, IKKULATHU VEEDU, PERUMPAZHUTTHOOR VILLAGE, SASTHAMCONAM, NEYYATTINKARA, (K.S.R.T.C DRIVER). 5. THE NEW INDIA ASSURANCE COMPANY LTD., BRANCH I, CO-OPERATIVE AGRICULTURAL DEVELOPMENT BANK BUILDING, CHINNAKKADA, KOLLAM. R1 BY ADV. MR.K.PRABHAKARAN, SC, K.S.R.T.C. MR.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.293 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 01st day of DECEMBER, 2009 J U D G M E N T P.R.RAMAN, J 1. This is an appeal by the claimant for enhancement of the compensation awarded in a motor accident. According to the appellant, on 21/6/1998, while he was travelling in a car owned by the second respondent and driven by the third respondent, and proceeding from Thiuvananthapuram to Neyyattinkara and when the vehicle reached near Pravachambalam Junction, a bus owned by Kerala State Road Transport Corporation (KSRTC)/first respondent, driven by the fourth respondent came in a rash and negligent manner from the opposite direction and collided with the car, as a result of which the front portion of the car was damaged, inflicting injuries on the appellant and the fourth respondent. Respondents 2,3 and 5 were the M.A.C.A. No. 293 of 2007 2 driver, owner and the insurer of Tata Mobile vehicle respectively and though served notice, the respondents 2 and 3 remain ex-parte. The fourth respondent driver of the KSRTC bus filed a joint written statement along with the first respondent denying the allegations made in the claim petition and further contending that the KSRTC bus was on his proper and correct side. The said bus was conducting service from Neyyattinkara to Thiruvananthapuram, when the car driven by the second respondent, came from the opposite direction, lost its control due to the rash and negligent driving and hit against the Bus. Though the KSRTC bus was swerved towards the left side of the road, still the accident could not be averted and the car in which the appellant was driving, hit against the bus at its left side. The accident is stated to have occurred as a result of negligence on the part of the third respondent/driver of the Tata Mobile Vehicle. According to the driver of the KSRTC bus, van came in a hectic speed totally disregarding the M.A.C.A. No. 293 of 2007 3 rules and regulations. Though the appellant had registered a case against the driver of the KSRTC bus, it was influenced by the respondents 2,3 and 5. The complaint regarding the same raised before the Dy. Inspector General of Police and concerned by the fourth respondent as the amount claimed is very high. 2. The fifth respondent in the written statement alleged that the accident occurred due to the negligence on the part of the fourth respondent, who was driving the KSRTC bus, that no case is made out against the driver of the car. It is also contended that the compensation claimed is excessive. 3. On the plea raised by the parties, the following issues were raised for consideration, viz; a. As to whether the accident occurred due to the rash and negligent driving of the fifth respondent/driver of the KSRTC bus bearing Registration No.N 923 (KL-15/2963). b. Whether the appellant/petitioner is entitled to get compensation, if so, what is the quantum? And c. Who is liable to pay the compensation? M.A.C.A. No. 293 of 2007 4 4. The evidence consists of oral testimony of appellant, examined as PW1, and documentary evidence Ext.A1 to A19 marked. On the side of the respondents, DW1 was examined (who is the fourth respondent), Ext.B1 to B4(a) were also marked on his side. 5. The Tribunal entered a finding on issue No.(a) that the accident occurred due to the rash and negligent driving of the fourth respondent. However, the Tribunal while discussing the evidence on record, took notice of the fact that the fourth respondent, against whom a criminal case was registered, was eventually acquitted. Ext.B1 photograph produced shows that the Tata Mobile vehicle in which the appellant travelled, was on the wrong side at the time of the accident. There is a definite finding that, going by Ext.P1 photograph, the Tata Mobile vehicle was on the wrong side. But since the manner of the accident is not evident from Ext.P1, nothing could be gathered there from and how and why the accident took place. It was presumed M.A.C.A. No. 293 of 2007 5 that the position of the vehicle could have changed due to the impact of the accident. The Judgment of the Criminal Court acquitting the fourth respondent was held to be not conclusive. In the circumstances, the Tribunal held that the mere acquittal of the fourth respondent in the criminal case, giving him the benefit of doubt is no reason to impute negligence on the part of the driver of the Van. We have perused the Judgment of the Criminal Court marked as Ext.B2, which shows that the fourth respondent was acquitted because there was no incriminating evidence against the accused. He was not even questioned under Section 313 of the Code of Criminal Procedure. The Court made a clear acquittal after finding that he was not guilty. We refer this statement only to show that it is not a judgment acquitting the fourth respondent, giving the benefit of doubt. All the same, since the finding of the Tribunal regarding negligence, is not assailed or challenged before us by filing any appeal, by the KSRTC or by the M.A.C.A. No. 293 of 2007 6 driver, we need not go beyond the findings arrived by the Tribunal. All the same, we cannot ignore the background in which the accident took place, for the purpose of quantifying the amount of compensation to be awarded. 6. The appellant was a provisional appointee in a public sector undertaking as the Chemical Inspector. He was a graduate in Chemical Engineering (BTech) who had a brilliant academic record as proved in the case. He took his degree in Science evidenced by Ext.A11 from University of Kerala. He was also a first class holder in Chemical Engineering as evidenced by Ext.A12 from T.K.M. College of Engineering, Kollam. He had also undergone a course in Computer Programming and obtained certificate from the Directorate of Technical Education, Kerala. He was working in the Department of Factories and Boilers in the post of Chemical Inspector, though admittedly he was only a provisional employee. At the time of accident he was aged 36 years. He sustained serious injuries namely; M.A.C.A. No. 293 of 2007 7 i) Pupil-both eyeball sustained loss of vision ii)Multiple lacerated wound forehead, eyebrow and cheek. iii)Lacerated wound tip of cartilage injury. Thus he had 100% visual disability. But it cannot be said that it is a total whole body injury. Ext.A17 pay slip issued by the Office of the Accountant General, Kerala shows that he was drawing a total amount of Rs.8,449/- inclusive of D.A., H.R.A etc. But the Tribunal did not accept the entire amount as salary or income, for the purpose of calculating the disability compensation. According to the Tribunal, 100% visual disability cannot be equated as that of a whole body disability. The appellant was a provisional employee, but according to the Tribunal, he cannot be treated as a person with no income. Therefore, the income was estimated at Rs.2,000/- per month and 16 was adopted as the multiplier and 100% disability was however taken and disability compensation was worked out at Rs.3,81,000/-. An amount of Rs.25,000/- was awarded towards pain and suffering; Rs.20,000/- towards loss of earning and an M.A.C.A. No. 293 of 2007 8 amount of Rs.5,000/- towards the transportation charges. Towards air fare for undergoing the treatment at Chennai, an amount of Rs.5,000/- was awarded. An amount of Rs.3,000/- was awarded towards by-stander expenses, Rs.1,500/- towards extra nourishment and a further amount of Rs.25,000/- was awarded towards loss of future amenities in life. Out of Rs.89,446/- claimed towards the medical expenses as covered by Medical Bills, some of the bills were found to be duplicate and excluding some amount, Rs.78,079/- was awarded towards the medical expenses. Thus, in all, an amount of Rs.5,42,300/- was awarded as compensation with interest at the rate of 7.5% per annum, from the date of petition till payment. 7. The point that arises for consideration is as to whether the appellant is entitled for any enhancement of the compensation, if so, under what head. We have perused the records of the case and the photograph of the appellant, taken after the accident (strictly it has no M.A.C.A. No. 293 of 2007 9 evidentiary value), he had brilliant academic records and has in Government service as Chemical Inspector. He is a graduate in Engineering. He had a bright prospects in life. He was earning an amount of Rs.8,444/- per month by way of salary but only as a provisional employee. The learned counsel for the appellant strenuously contended that in the normal course the appellant would have been regularised in the service and he placed reliance on Ext.A19 which is a Government Order regularising the service of one Ms.Sulochana who is stated to be similarly appointed as that of the appellant, on provisional basis as Chemical Inspector and therefore, appellant contends that he would also have had a right to be regularised in service and at the relevant time Ms. Sulochana was drawing more than Rs.12,000/- per month as salary. According to him, at least this amount should have been taken as the monthly income for the purpose of determining the compensation. We have perused Ext.A19 Government order which shows that M.A.C.A. No. 293 of 2007 10 Ms.Sulochana's service was also terminated on completion of 189 days, since there was no Public Service Commission candidates were available for the post, provisional appointment was resorted to through employment exchange. As a matter of fact, the termination of service of Ms. Sulochana was done as per the directions of the Public Service Commission. But she challenged the same before this Court and her services were allowed to be continued till a particular date. But in the meantime, she made a representation before the Government seeking regularisation of her service. Government exercised the special power conferred under Rule 39 of the Kerala Subordinate Service Rules and regularised the service of the said candidate, overlooking the objections of the Public Service Commission. 8. It is not in such circumstances possible for us to accept the contention of the appellant, that similar treatment would have been made to the appellant also. The M.A.C.A. No. 293 of 2007 11 very fact that the Government has exercised a special power having due regard to the circumstances and the candidate is ordered to be regularised in service, are not matters of regular feature or a routine matter but exceptional in nature. At the same time, we are conscious of the fact that, a Chemical Engineer who has passed the examination with first class, employed in a Government Service is sure to secure a lucrative employment otherwise than in Government Service also. But then, in a situation like this, while we have to compute the compensation, when direct evidence is not possible, we would only make a guess work. The income as estimated by the Tribunal at Rs.2,000/- for a person of this background is too low. We estimate his income at Rs.6,000/-, even though we may err in estimating his income but in the absence of better materials we are constrained to adopt the income on an estimated basis. 9. While the appellant was examined as PW1, he M.A.C.A. No. 293 of 2007 12 admitted the fact that he is only a provisional employee and he was not traveling in his own vehicle and it was a vehicle taken on rent (Tata Mobile Car) and was a Goods Carrier. Though in the course of arguments, the learned counsel repeatedly said that it is a car, where the RC Book is not produced, which could have been the best evidence. Normally for any adaptation or modification made, approval would have been sought for from the motor vehicle authorities. However, since the claim is not directly against the insurance company, these issues are not very relevant. If the negligence is proved against the offending Vehicle, necessarily compensations has to be worked out for the damages suffered by the injured in accordance with the law under appropriate heads, and as he is being a third party, the nature of the vehicle in which he travelled is of no consequence. 10. On reworking the compensation, taking Rs.6,000/- as income and 16 as a multiplier, the total compensation M.A.C.A. No. 293 of 2007 13 comes to Rs.11,52,000/- . Since the Tribunal has awarded an amount of Rs.3,81,000/-, the appellant is entitled to get a balance amount (less the already awarded amount) of Rs.7,71,000/-. The Tribunal has awarded compensation towards loss of earning of an amount of Rs.20,000/- taking his income as Rs.2,000/-. Now the Tribunal substituted his income as Rs.6,000/- he will be entitled for the balance amount of Rs.40,000/-. The by-stander’s expenses awarded by the Tribunal is considered to be too low and considering the fact that he lost his vision and that he may require some help in future also, we award an amount of Rs.10,000/- more towards by stander expenses over and above Rs.3,000/- which is already awarded. 11. We find that the transportation expenditure awarded by the Tribunal only Rs.5,000/- and we increase the same to Rs.10,000/-. Thus the appellant would be entitled to get a balance amount of Rs.5,000/-. The compensation awarded in other heads are reasonably fair M.A.C.A. No. 293 of 2007 14 and do not require any modification. 12. In the result, the appellant will be entitled for the balance compensation of Rs.8,26,000/- by way of enhancement granted which will carry interest at the same rate of 7.5% per annum, appeal is allowed. No cost. P.R.RAMAN, JUDGE P.R. RAMACHANDRA MENON, JUDGE nl