Suresh Babu vs Managing Director, Ksrtc, Trivandrum 695002

A.Badharudeen, J

This is an appeal filed under Section 173 of the Motor Vehicles Act by the original petitioner in O.P(MV).No.149/2008 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda challenging award dated 08.02.2013. The respondents in this appeal are the respondents before the Tribunal.

Heard the learned counsel for the appellant and the learned Standing Counsel for the 1st respondent, KSRTC.

The summary of the facts of the case:

The appellant herein lodged claim petition under Section 166 of the Motor Vehicles Act before the Tribunal claiming compensation amount of Rs.5 lakh on the allegation that he sustained injuries arising out of a motor accident occurred at 2 a.m on 26.06.2007 when he was knocked down by a stage carriage bus bearing Reg.No.KL-15/5525 driven by the 2nd respondent in a rash and negligent manner while he was removing punctured tyre of a goods vehicle bearing Reg.No.KL 7/T 8332 where the appellant was the driver. According to the appellant, rash and negligent driving of the KSRTC bus by the 2nd respondent is the reason for the accident.

The 2nd respondent, the driver of the bus was declared ex-parte by the Tribunal.

The 1st respondent, Managing Director of the KSRTC filed written statement and resisted the claim. Negligence alleged against the 2nd respondent was denied and it was attributed on the part of the appellant himself. Quantum of compensation also was disputed, being excessive.

The Tribunal examined PW1 and marked Exts.A1 and A2 on the part of the appellant. No evidence let in by the respondent. Ext.X1 also was marked. The Tribunal adjudicated the matter and found that the accident was the outcome of negligence on the part of the 2nd respondent. The finding on negligence is not in dispute.

It is argued by the learned counsel for the appellant that the monthly income fixed by the Tribunal at Rs.3,000/- for granting loss of earnings and loss of disability income is on lower side. Further he submitted that Ext.A6 disability certificate showing 33.55% permanent disability with suggestion of 60% occupational disability was let in before the Tribunal by examining PW1, the author of Ext.A6. But the Tribunal accepted only 33.55% disability. According to the learned counsel for the appellant, 60% occupational disability ought to have been accepted by the Tribunal since Ext.A6 would suggest 60% occupational disability in so far as the appellant, who was a goods autorickshaw driver at the time of the accident.

In so far as the monthly income fixed by the Tribunal is concerned, in the petition, Rs.5,000/- is claimed as the monthly income. The learned Standing Counsel for the KSRTC not disputed fixation of monthly income, following the ratio in [(2011) 13 SCC 236], Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd., as Rs.5,000/-. Therefore, Rs.5,000/- is fixed as the monthly income in this particular case.

Regarding the percentage of disability, it is argued by the learned Standing Counsel for the KSRTC that though the appellant was treated at St.James Hospital, Chalakkudy as inpatient, the appellant showed no interest to produce a disability certificate from the said hospital or to get a disability certificate from a Government Medical Board. He argued that the disability certificate issued by PW1, who had examined the appellant only for the purpose of disability, had been let in to prove 33.55% disability.

It is submitted that 33.55% disability was accepted by the Tribunal rounding the same as 33%. The occupational disability asserted by the appellant as per Ext.A6 and as deposed by PW1 cannot be accepted as such is the submission of the learned Standing Counsel for the KSRTC on the ground that the petitioner not showed any interest to assess his disability in an accurate formula.

In this case, the Tribunal fixed 33% disability. In fact, the total percentage of disability shown in Ext.A6 is 33.55%. It is stated in Ext.A6 that the loss of earning capacity may be considered as 60%. During chief examination, PW1, who authored Ext.A6, deposed that 60% loss of earning capacity assessed was the disability as on 14.01.2013. During cross examination, PW1 given evidence that he did not treat the patient. He had examined the appellant only for disability assessment purpose. He also stated that the patient approached him on foot and there was no implant. In order to fix the actual percentage of disability in this matter, I am inclined to refer Ext.A3 copy, of wound certificate issued from St.James Hospital. The same shows the following injuries:

“(1) Comminuted fracture right iliac blade extending inferiorly to just above the roof of acetabulam, (2) Comminuted fracture left sacral ala extending to involve the lower sacral foraminae on the left side; (3) Fracture right transverse process of L5 vertebra; (4) Comminuted fracture postero superior and antero superior aspect of left acetabulam; (5) Multiple intra articular fractured fragments in the left hip joint; (6) Fracture posterior tip of right acetabulam; (7) Comminuted fracture right superior and inferior public rami; (8) Fracture left scapula; (9) Fracture left 7 top 9 ribs; (1)) Fracture both bones left forearm and avulsed lacerated wound over left wrist and dorsal aspects.”

Apart from that, Exts.A4 and A5 are 2 separate medical certificates detailing the above injuries. In fact, the treatment records do not justify 60% loss of earning power. Either in the evidence of PW1 or in Ext.A6 the rationale for assessing 60% occupational disability not specifically mentioned. The expression `loss of earning capacity may be considered as 60%' in Ext.A6 itself is indicative of the fact that the doctor is not sure about the same and the said assessment is not an `accurate assessment' and it is a probable assessment. Thus, I am of the view that the disability fixed by the Tribunal at 33% as such as per Ext.A6, though it was a certificate issued by a solitary doctor of the choice of the appellant, is liable to be confirmed and in excess of the same no increase is liable to be granted.

Ext.A10 is the copy of driving licence of the appellant showing his date of birth as 15.10.1971. This accident was on 26.06.2007. Thus he completed 36 years on the date of the accident and therefore, the multiplier is 15 instead of 16 applied by the Tribunal. In this matter, the Tribunal not granted any amount under the head loss of earnings. Considering the multiple fractures and treatment, loss of earnings for a period of one year is liable to be granted. Therefore, Rs.60,000/- is granted under the said head. Coming to disability, the same is recalculated as follows:

5000 X 12 X 15 X 33/100 = Rs.2,97,000/-, out of which Rs.1,90,080/- was granted by the Tribunal. The balance to the tune of Rs.1,06,920/- more is granted under the head disability income. As rightly argued by the learned counsel for the appellant, the Tribunal granted Rs.15,000/- only under the head pain and suffering and no amount granted under the head loss of amenities though the appellant sustained multiple fractures and he underwent treatment as could be gathered from Ext.A3 to A8 as well as Ext.X1 treatment file. Therefore, I am inclined to grant Rs.20,000/- more under the head pain and suffering and Rs.30,000/- under head loss of amenities also. Apart from that, Rs.4,000/- more is granted towards extra nourishment. Thus the enhanced compensation entitled to by the appellant would come to Rs.2,20,920/-.

In the result, the appeal stands allowed. It is ordered that the appellant is entitled to get Rs.2,20,920/- (Rupees Two lakh twenty thousand nine hundred and twenty only) as enhanced compensation with 7.5% interest granted by the Tribunal. The insurance company is directed to deposit the same in the name of the appellant within two months from today and on deposit, the appellant can release the same.