IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 MACA.No. 1868 of 2008 ----------------------- AGAINST THE ORDER DATED 22/04/2008 IN OPMV.81/02 & 907/04 IN OPMV.74/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT: -------------- RAJAN, S/O.MANI, THOTTUPURAM HOUSE, ORAPPANA ROAD, PERIYARAM VILLAGE, KANJIRAPALLY PO., MUKUNDAPURAM TALUK, THRISSUR. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS: --------------- 1. M.RATNAMANIKYAN, W/O.FRANCIS DOOR NO.46-3-31, GUNDALA, VIJAYAWADA, ANDRAPRADESH. 2. RAMU, S/O.NAGESWARA RAO, KUPPITHALA, VIJAYAWADA, ANDRAPRADESH(DELETED) 3. MANAGER, NATIONAL INSURANCE CO.LTD., GUDAVALLIVADA, ANDRAPRADESH. R2 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 5/9/2011. ADV. SRI.JOE KALLIATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- M.A.C.A. No. 1868 of 2008 ------------------------------------------------- Dated this the 20th day of September, 2011 JUDGMENT Basant,J. The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 2/8/2001. He was the driver of a K.S.R.T.C. bus involved in the accident. His vehicle and the insured lorry had collided against each other while they were proceeding in the opposite directions along the road which was lying north-south. He initially staked a claim for compensation under Sec.163A of the Motor Vehicles Act. Later the claim was amended and the claim was staked under Sec.166 of the M.V. Act. Initially the claim was for Rs.1,00,000/-. Later, it was amended as Rs.5,00,000/-. It was noticed that those amendments have not been carried out. MACA 1868/2008 2 2. Be that as it may, parties went to trial on the contentions raised. The Tribunal by the impugned award came to the conclusion that both drivers were equally responsible for the accident and held that the appellant/claimant was entitled to recover only 50% of his loss from the driver, owner and insurer of the other vehicle. The Tribunal came to the conclusion that the loss suffered by the appellant can be quantified at Rs.1,00,550/- as per the details which are given below: Sl.N o. Head Amount claimed Amount awarded 1 Pain and suffering Rs.50,000/- Rs.17,000/- 2 Loss of amenities Rs.1,00,000/- Rs.7,000/- 3 Medical expenses Rs.25,000/- Nil 4 Transportation expenses Rs.10,000/- Rs.1,000/- 5 Loss of earnings Rs.40,000/- Rs.34,450/- 6 Bystander's expenses Rs.20,000/- Rs.6,000/- 7 Disability Rs.2 lakhs Rs.35,100/- (1500 x 12 x 15 x 13%) 8 Future medical expenses Rs.25,000/- Nil 9 Extra nourishment Rs.10,000/- Nil 10 Damage to clothing Rs.1,000/- Nil Total Rs.1,00,550/- 50% with 7% interest MACA 1868/2008 3 The insurer of the insured vehicle was made entirely liable to satisfy the award. 3. Before us the learned counsel for the appellant/claimant and the 3rd respondent/insurance company have advanced their arguments. The learned counsel for the appellant assails the impugned award on the following grounds: (i) The Tribunal erred grossly in concluding that the appellant along with the driver of the insured vehicle were equally responsible for the accident. (ii) The quantum of compensation fixed by the Tribunal is grossly inadequate. 4. Ground No.1. The learned counsel first of all contends that the appellant was denied the opportunity to adduce oral evidence on the question of negligence. This Tribunal does not permit the claimant to adduce any oral evidence on the question of negligence, contends the learned counsel. On the materials available, we can only say that the appellant did not adduce any oral evidence on the question of negligence. There is nothing to indicate that the appellant had made any attempt to adduce oral evidence on the question of negligence and such attempt was MACA 1868/2008 4 failed by refusal of permission by the Tribunal. Crime was registered and after investigation, the police had filed charge sheets raising allegations of culpable negligence against the drivers of both vehicles. It was in these circumstances that the Tribunal came to the conclusion that both drivers can be held responsible equally for the accident. 5. The learned counsel for the appellant submits that even assuming that there is no better and more acceptable evidence, the Tribunal ought to have noted that the scene mahazar was available and that can throw a lot of light on the manner in which the accident must have taken place. The learned counsel for the appellant points out that the road was lying north south and the spot of accident is located in the scene mahazar,Ext.A3 as a spot which is 3 metres east of the western kerb of the road. The appellant’s vehicle was proceeding from south towards north. Learned counsel for the appellant emphasizes the fact that the appellant’s vehicle was clearly on its left hand side of the road. The accident occurred only because at the point of impact the driver of the insured vehicle had strayed to his right hand side of the road beyond the imaginary midline. He had MACA 1868/2008 5 traversed the distance exceeding 50 cms. to the west of the imaginary midline. The Tribunal should have noticed this fact and should have come to appropriate conclusions about the extent of liability for the accident. In any view of the matter, the appellant must be made responsible only to a lesser extent. Mechanical apportionment of the blame equally between the two drivers is not justified, contends the learned counsel. 6. We note that there is no better evidence available. But we agree with the learned counsel for the appellant that the accident had taken place on the western half of the road which is the correct side of the vehicle proceeding from south towards north. In this view of the matter, we are of the opinion that it would be safer and more prudent to come to the conclusion that the responsibility of the appellant for the accident was at any rate lesser than the responsibility of the driver of the insured vehicle. We deem it proper to apportion the blame for the accident between the driver of the insured vehicle and the appellant in the ratio 60:40. The challenge on the first ground succeeds to the above extent. MACA 1868/2008 6 7. Ground No.2. We now come to the quantum of compensation payable. Called upon to explain and be specific, the learned counsel for the appellant assails the amounts awarded under different heads. The appellant had suffered serious injuries including dislocation of the left knee, fracture dislocation of the right ankle, fracture neck of talus, comminuted fracture neck and shaft of first metatarsal, fracture of medial malleolus, subluxation of 2nd,3rd and 4th metatarsal and undisplaced fracture of cuboid. He was an inpatient for a period of 60 days in more than two spells. He had undergone surgery. He was compelled to be on leave for a total period of 314 days. He had allegedly suffered permanent disability. An Orthopedic specialist had certified the split up disability as 33% and the whole body disability to be 29.95%. The relevant details are available in Ext.A7 disability certificate. 8. The learned counsel for the appellant first of all contends that the quantum of compensation awarded under the head of pain and suffering is grossly inadequate. Only an amount of Rs.17,000/- has been awarded. We take note of the multiple MACA 1868/2008 7 injuries including multiple fractures. We take note of the long period of treatment as an inpatient(60 days) and the long period of treatment as an outpatient thereafter. In the peculiar facts and circumstances of this case, we are satisfied that Rs.25,000/- can be fixed as the quantum of compensation payable for pain and suffering. 9. The learned counsel then argues that no amount has been awarded under the head of medical expenses, though a total amount of Rs.6,000/- has been awarded under the head of by-stander expenses. No documents were produced to prove the medical expenses and the Tribunal was persuaded to feel that non-production of the documents to prove the medical expenses is on account of the fact that the appellant must have claimed the amounts from his employer, K.S.R.T.C. In these circumstances, we find no reason to award any further amount under the head of medical expenses and bystander’s expenses. 10. For loss of earnings, an amount of Rs.34,450/- was awarded. The monthly income of the appellant is shown to be Rs.3906/-. There was 314 days of leave. For loss of leave, certainly the appellant is entitled to be compensated. If the MACA 1868/2008 8 appellant did not avail the leave for this purpose, the same would have been available for him to be availed for other purposes. In these circumstances, we are certainly of the opinion that for the entire period of involuntary unemployment, even when the appellant was obliged to spend his available leave for such purpose, he is entitled to be compensated. The Tribunal has awarded only an amount of Rs.34,450/-. We agree with the learned counsel for the appellant that an amount of Rs. 40,883/- (3906/30 x 314) is liable to be awarded under the head of loss of earnings/leave. 11. The learned counsel submits that though the appellant has suffered serious injuries and was admitted as an inpatient for 60 days and the treatment had continued for a long period of time, no amount has been awarded under the head of extra nourishment. We agree that a reasonable amount has to be awarded under this head. We are satisfied that an amount of Rs.7,500/- deserves to be awarded as compensation under this head. For damage to clothing and articles, no amount has been awarded. We agree with the learned counsel for the appellant that an amount of Rs.1,000/- can safely be awarded as MACA 1868/2008 9 compensation under this head, even in the absence of any better evidence. 12. It is then contended that the Tribunal had not properly assessed the compensation payable for disability. Without dispute, physical disability has resulted from the accident. Ext.A7 certificate shows that the whole body disability is 29.95%. The appellant was employed as a driver and we find it absolutely safe to assume that 30% must have been the reduction in earning capacity consequent to the accident. However, we have evidence to show that the appellant has not suffered any actual reduction in earnings as an employee of the K.S.R.T.C. He is likely to continue to earn the same income (as he would have without disability) till he retires from service at the age of 55 years. The physical disability will have a reflection actually on his earning capacity only after his retirement on superannuation. Thereafter, the appellant would suffer loss on account of his reduction in earning capacity. We find it absolutely safe to assume that as a driver, the appellant would have been able to earn an income of Rs.2,000/- per mensem after his retirement. In fixing the amount at Rs.2,000/-per mensem, MACA 1868/2008 10 we do take into account the fact that we are fixing the amount for a period which is to come at least a decade after the accident. For persons of the age group 55-60 years, 9 is the multiplier applicable following the dictum in Sarla Verma v. Delhi Transport Corporation [(2009)6 S.C.C. 121]. We are, in these circumstances, satisfied that an amount of Rs. 64,800/- (2000x12x9x30/100) can be reckoned as the loss suffered on account of the reduction in earning capacity actually on the claimant/appellant. 13. Finally it is contended that the amount of Rs.7,000/- only awarded under the head of loss of amenities is painfully low. Physical disability suffered by a person leaves behind two fold reflections on his life. It reduces the earning capacity. It also impairs the quality of life which a person can afford to enjoy. We have already seen that there is no immediate reduction in earnings on account of the disability. But to turn out the same amount of work as he was doing prior to suffering of the disability, the claimant will have to strain harder. He would require more rest also. At the age of 44, he had suffered disability and he will have to endure disability for the rest of his MACA 1868/2008 11 life. While ascertaining the quantum of compensation for loss of amenities, it is only reasonable to assume that there must have been shortening of life expectancy also. For all dimensions of the loss of amenities, we are satisfied that an amount of Rs.25,000/- can be fixed as the quantum of compensation. 14. There is a dispute as to whether the claim is maintainable under Section 163A of the Motor Vehicles Act. We are of the opinion that it is unnecessary to go into that question in this appeal as the claim is now staked only under Section 166 of the Motor Vehicles Act. 15. We are not persuaded to agree that the amount awarded under any other head deserves appellate interference at our hands. 16. The above discussions lead us to the conclusion that the appellant has suffered a further loss of Rs.70,633/-in addition to the amount fixed by the Tribunal. 1) Pain and suffering :Rs.8,000/-(25000 minus 17000) 2)Extra nourishment :Rs.7,500/-(no amount awarded by the Tribunal) 3)Damage to clothing :Rs.1,000/-(No amount awarded by the Tribunal) MACA 1868/2008 12 4) Loss of earnings :Rs. 6,433/- (3906/30 x314 minus 34450/-) 5)Reduction in Earnings :Rs.29,700/-(2000x12x9x30/100 =64800 minus 35100) 6)Loss of amenities :Rs.18,000/-(25000 minus 7000) Total : Rs.70,633/- ========= Thus the total loss suffered by the appellant is Rs. 1,71,183/- (1,00,550/- plus 70,633/-). The appellant would be entitled to receive from the respondents 60% of the said amount, that is Rs. 1,02,710/-(1,71,183 x 60/100) . 17. In the result, a)this appeal is allowed in part. b)the appellant is found entitled to a total amount of Rs.1,02,710/- as compensation from the respondents. MACA 1868/2008 13 c)We make it clear that the entire amount of compensation shall bear interest at the rate and for the period specified in the impugned award by the Tribunal. d)All other directions of the Tribunal are upheld. Sd/- R. BASANT, JUDGE Sd/- M.C. HARI RANI, JUDGE ks. true copy P.S.to Judge