1 OP(MV) 130/2023

IN THE COURT OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,

THODUPUZHA
Present: Sri. Nixon M.Joseph ,M.A.C.T., Thodupuzha
Monday the 16th day of October 2023/ 24th day of Aswina 1945

OP(MV) No. 130/2023

(Filed on 07/03/2023)
Petitioner: Radhamani W/o. Rajan, aged 58 years,
Edakuzhiyil House, Chakkakanam Bhagam,
Nedumkandam kara, Kalkoonthal Village-685 553,
presentely lying in Coma stage hence
represented by the next friend and husband
Rajan S/o Ravi, aged 60 years, Edakuzhiyil House,
Chakkakanam Bhagom, Nedumkandam kara,
Kalkoonthal Village-685 553.
By Advs. Sri.Shaji Kurian, Sri. Vinish P Lukose,
Sri. Nigil S Kallurumbil & Smt. Jayaresmi S B.

Respondents:1. Baby S/o Parameswaran, Thekkedathsseriyil House,

Kalavamkodam Kara, Kalavamkodam P O,
Vayalar East Village, Cherthala Taluk,
Alappuzha -688 524
2. The Managing Director, KSRTC, Post Box No. 63,
Thiruvananthapuram 695 023
3. Oriental Insurance Co. Ltd,
Rep. By its Divisional Manager,
Divisional Office, Thodupuzha 685 584
R1 & R2 Ex- parte.
By Adv.Sri.Saju Paul for R3.
 2 OP(MV) 130/2023

This petition came for final hearing on 16/10/2023 in the presence

of the above counsels and having stood over for consideration to this

day, the Tribunal on the same day passed the following.

AWARD
The petition is filed u/s.166 of Motor Vehicles Act, 1988 claiming

compensation of ₹75,00,000/- for the injuries sustained by the75,00,000/- for the injuries sustained by the

petitioner in a road traffic accident. The petitioner/injured is

represented by next friend and husband as the petitioner/injured is in

comma stage.

Allegation

2. The petitioner was travelling in a KSRTC bus bearing

Reg.No.KL-15A-1998 through Nedumkandam - Ernakulam public road

on 07.11.2022. The bus was proceeding without closing its hydraulically

operating doors by its driver and hence the petitioner was thrown out

from the bus through its back door leaving her to sustain serious

injuries. Immediately, she was taken to Medical Trust Hospital,

Nedumkandam and from there to St.Johns Hospital, Kattappana and

treated there as inpatient. Thereafter she was shifted to Carithas

Hospital, Kottayam and treated there as inpatient till 15.01.2023.

 3 OP(MV) 130/2023

Subsequently she was admitted to Indo American Brain and Spine

Hospital, Vaikom and treated there also as inpatient. Now the petitioner

is fully bedridden in comma stage. The 1st respondent was the driver of

the vehicle and it was his rashness or negligence which resulted the

mishap. The petitioner sustained pecuniary as well as non pecuniary

loss due to the injuries suffered by her. The 1 st respondent as the driver

of the bus, the 2nd respondent as its owner and the 3 rd respondent as is

insurer are liable to compensate the petitioner jointly and severally.

Written statement
3. The respondents 1 and 2 remained absent and they were set
exparte.
4. The 3rd respondent filed written statement disputing various

claims including the quantum of compensation. It is contended that

the accident occurred solely due to the negligence of the petitioner.

There is chance for recovery since the petitioner is still undergoing

treatment. The next friend has not produced any document to show

that the petitioner is in comma state. The insurance coverage for the

vehicle was admitted. The claim of petitioner regarding age,

occupation, income and injuries are disputed. The compensation

claimed under various heads are assailed as exorbitant and baseless.

 4 OP(MV) 130/2023

5. The petitioner filed an IA for awarding the medical expenses

already incurred as interim award. Subsequently the learned counsel

for petitioner prayed for an early disposal of claim petition itself.

Issues
6. From the contentions, the following issues are raised for
consideration:-
1. Whether the incident occurred due to the rash or
negligent act of 1st respondent in not closing the door of
the bus ?
2. Did petitioner sustain injuries in the incident as
claimed ?
3. Is petitioner entitled to get compensation as prayed for
or otherwise?
4. Who is/are liable to compensate the petitioner?
5. Reliefs and costs
Evidence
7. The evidence consists of oral testimony of PWs 1 and 2 and

Exts.A1 to A25 from the side of petitioner and Ext. B1 from the side of

contesting third respondent.

8. Heard. Perused the materials.

9. Issue No. 1 : The allegation is that the petitioner sustained

injuries due to the rash or negligent act of 1 st respondent. To prove that

the 1st respondent was either rash or negligent in driving the vehicle
 5 OP(MV) 130/2023

without closing the hydraulically operating door the petitioner relies on

Ext.A1 FIR and Ext.A2 final report. The petitioner also caused to

examine an occurrence witness as PW1 and he would assert the claim

of petitioner regarding the fault of 1 st respondent. So, after going

through evidence it can be found that the accident as claimed by the

petitioner is correct and the crime records would also show that the

accident occurred due to the fault of first respondent and hence he was

charge sheeted for the offences punishable u/ss.279, 337 and 338 IPC.

So, the rashness or negligence attributed against 1 st respondent stands

proved. Obviously, the insurer has no case of contributory negligence.

The issue is answered accordingly.

10. Issue No. 2 :- The petitioner claims that she sustained the
following injuries:
1. Severe head injury
2. Post traumatic hydrocephauls
(Status post right FTP craniectomy and SDH evacuation done
. on 07.11.2022) (Left MP VP shunt and right FTP cranioplasty
done on 29.12.2022)
3. Bilateral lower limb resolving cellulitis
(Tracheotomy done on 11.11.2022)
4. Air pockets within cranoplasty measuring up to 9mm in thickness
5. A few acute hemorpagic foci noted in the right basi
 6 OP(MV) 130/2023

6. High frontal parietal white matter largest 17 x 15 mm

7. Midline shift to left of brain is 7mm
Presently lying in comma stage fully bed ridden
To substantiate the injuries allegedly sustained in the accident oral

testimony of PW2 doctor, Exts.A2 final report, A5 wound certificate, A8

treatment summary, A9 to A12, A19 and A23 discharge summaries, A13

MRI scanning report, A14, A18, A20 and A25 medical bills, A16 disability

certificate and Ext.A17 photographs are relied upon by the petitioner.

The above documents do justify the claim regarding injuries sustained

by the petitioner. The victim was produced before the Tribunal and she

had minor responses when her name was called and hence it can not

be found that she is in a comma stage. But the victim is bedridden and

fully dependant on others. The issue is answered accordingly.

11. Issue No. 3 :- The petitioner claims an amount of ₹75,00,000/- for the injuries sustained by the75,000/-

towards transportation charges. Exts.A15, A22 and A24 ambulance bills

come to an amount of ₹75,00,000/- for the injuries sustained by the24,600/-. Considering the nature of injuries, the

spot of accident, the location of hospitals to which she was taken, her

place of residence, subsequent reviews and the paraplegic state of

petitioner an amount of ₹75,00,000/- for the injuries sustained by the40,000/-is allowed.

 7 OP(MV) 130/2023

12. The petitioner claims an amount of ₹75,00,000/- for the injuries sustained by the3,000/- towards

compensation for damage to clothing and articles. No material was

produced to substantiate the above claim. Still, an amount of ₹75,00,000/- for the injuries sustained by the1,000/- is

awarded towards compensation for damage to clothing and articles.

13. The petitioner claims an amounts of ₹75,00,000/- for the injuries sustained by the2,00,000/- towards extra-

nourishment charges. Considering the nature of injuries, 226 days

hospitalization and also the present condition of petitioner an amount of

₹75,00,000/- for the injuries sustained by the80,000/- is awarded towards extra-nourishment charges.

14. The petitioner claims an amount of ₹75,00,000/- for the injuries sustained by the27,00,000/- towards

treatment expenses. Ext.A14, A18 (physiotherapy), A20 (physiotherapy),

A21, and A25 series medical bills come to an amount of ₹75,00,000/- for the injuries sustained by the23,96,496/-

+18,900 +21,000 + 82,614+ 60,752. The above bills would show a total

expense of ₹75,00,000/- for the injuries sustained by the25,79,762/-. Hence ₹75,00,000/- for the injuries sustained by the25,79,762/- is allowed towards

medical expenses.

15. The petitioner claims an amount of ₹75,00,000/- for the injuries sustained by the8,00,000/- towards

expense for future treatment. Considering the bed ridden (on catheter,

foleys, diaper, feeding on tube) state of victim an amount of ₹75,00,000/- for the injuries sustained by the7,000/- a

month for treatment appears reasonable. Considering the age of

petitioner the multiplier applicable is 9. Hence the whole claim for an

 8 OP(MV) 130/2023

amount of ₹75,00,000/- for the injuries sustained by the8,00,000/- is allowed towards expenses for future treatment

or management.

16. An amount of ₹75,00,000/- for the injuries sustained by the8,00,000/- is claimed towards compensation for

pain and sufferings. Considering the nature of injuries and present

condition an amount of ₹75,00,000/- for the injuries sustained by the3,00,000/- shall do justice and that amount is

awarded towards compensation for pain and sufferings.

17. The petitioner claims an amount of ₹75,00,000/- for the injuries sustained by the21,00,000/- towards

compensation for permanent disability and loss of earning power. The

petitioner aged 58 years was reported to be a tailor with a monthly

income of ₹75,00,000/- for the injuries sustained by the25,000/-. The medical records and Ext.A6 copy of Aadhar

card would justify her claim of age. To substantiate the claim of

employment or income, the petitioner relies on the evidence of PW1.

PW1 is the husband of petitioner. He would assert that the petitioner

was drawing a monthly income of ₹75,00,000/- for the injuries sustained by the25,000/-. But the contesting

respondent vehemently disputed the claim of employment and income of

victim.

Relying on Ext.A16 disability certificate the petitioner would

contend that she has sustained 100% physical disability due to the
 9 OP(MV) 130/2023

injuries suffered in the accident. The private doctor (PW2) who issued

Ext.A16 noted the following problems for the petitioner;

Unconscious, vocalisation, no spontaneous movement of limbs

even with severe pain, tracheostomy present with secretions and case

done by relatives including PEG feeding - 100% disability

No control of sphincters, urinary catheter insitu, bladder care done

by relatives – 25% disability
Post traumatic seizures even with AED fits four to six per month –
25%
Severe spastic left lower limb, right upper and lower limbs with
contracture, drawing of digits bilaterally no movement of digits – 75%
disability
Spontaneous eye opening present, not obeying commands, no
ocular movement to pain conjugate deviation of eyes to right occasional
blinking right mydriasis – 20% disability
Based on the above problems the private doctor concluded 100%

whole body disability to the petitioner. The learned counsel for the

petitioner would contend that the functional disability of petitioner as a

tailor or any other employment is 100%. According to the learned

counsel for the insurer the disability assessed is on the higher side. It is

also contended that the victim when brought before the Tribunal had
 10 OP(MV) 130/2023

minor responses to the commands and hence the claim that the victim is

in comma stage can not be accepted.

The petitioner is represented by her husband as her next friend.

The petitioner was produced before the Tribunal in ambulance. As rightly

pointed out by the learned counsel for insurer the petitioner showed

slight responses when her name was called. The response was minimal

and she was not able to move her body or limbs. Anyway, the petitioner

is now confined to bed as if in a comatose state. She is fully dependant

on others for all purposes.

The learned counsel for the petitioner would argue that the

petitioner cannot be gainfully employed in any employment and the

earning of the petitioner after the accident is zero. To substantiate the

claim the petitioner caused to examine the doctor who assessed the

disability as PW2 and he asserted the 100% disability of the petitioner.

The percentage of functional disability which affects her earning capacity

has to be ascertained to compute compensation. Considering the

problems and the extent of disability faced by the petitioner, her

functional disability as a tailor or any other professional can be

considered as 100% for the purpose of computing compensation.

 11 OP(MV) 130/2023

Because, she is fully bedridden and she can not pursue any job or earn

any thing.

The age of the petitioner being 58 years, the multiplier applicable is

'8'. There is no reliable material to conclude the income of victim. Of

course, PW1 the husband has made an attempt to show that the victim

was a tailor and she had sufficient income. But, apart from his

interested testimony there is nothing to prove the income of victim.

Hence an amount of ₹75,00,000/- for the injuries sustained by the13,500/- can be considered as the income of

victim for computing compensation. Considering the extend of disability

10% future prospects need to be added to the income and the resultant

figure shall be ₹75,00,000/- for the injuries sustained by the14,850/-. So, the compensation can be computed as

₹75,00,000/- for the injuries sustained by the14,850/-x12x9x100/100)=16,03,800/-. Hence, an amount of

₹75,00,000/- for the injuries sustained by the16,03,800/- is awarded towards compensation for permanent disability

and loss of earning power.

18. The petitioner claims an amount of ₹75,00,000/- for the injuries sustained by the3,00,000/- towards

compensation for loss of earnings and partial loss of earnings. Since

the victim is awarded compensation for 100% disability right from the

day of accident adopting multiplier she shall not be entitled for

compensation for loss of earnings or partial loss of earnings.

 12 OP(MV) 130/2023

19. The petitioner claims an amount of ₹75,00,000/- for the injuries sustained by the10,00,000/- towards

bystander expenses and attendant expenses. Considering the disability

the assistance of bystander appears to be essential for the petitioner. A

full time assistant appears unavoidable. The claim of petitioner faces no

challenge from the side of contesting respondent. It remains a fact that

the petitioner needs assistance of bystander throughout her life. The

learned counsel for the petitioner prayed for adopting multiplier method

for computing compensation in respect of bystanders expenses. The

contention appears justifiable. The monthly expense for a whole time

bystander can be considered as ₹75,00,000/- for the injuries sustained by the18,000./-. The multiplier applicable is

‘9’. So, the compensation can be computed as

18,000x12x9=19,44,000/-. Hence, an amount of ₹75,00,000/- for the injuries sustained by the19,44,000/- is

awarded towards bystanders expenses.

20. The petitioner claims an amount of ₹75,00,000/- for the injuries sustained by the10,00,000/- towards

compensation for loss of amenities in life and compensation for mental

agony suffering and inconvenience caused to the husband and children

of the petitioner. The possible disabilities due to the injuries are sure to

affect the quality of the life of petitioner as well as her near and dear

ones till her death and hence an amount of ₹75,00,000/- for the injuries sustained by the4,00,000/- is awarded
 13 OP(MV) 130/2023

towards compensation for loss of amenities and suffering of husband

and children.

21. The compensation awardable can be scheduled as follows:-

No. Head of claim Amount Amount Particulars

Claimed (₹)) Awarded (₹))
PART-I
a) Loss of earnings 3,00,000/- Not allowed
b) Transport to hospital 75,000/- 40,000/- Reasonable assessment

c) Damage to clothing 3,000/- 1,000/- Reasonable assessment

d) Extra nourishment 2,00,000/- 80,000/- Reasonable assessment

e) Treatment expenses 27,00,000/- 25,79,762/- medical bills

f) Bystander expenses and 10,00,000/- 19,44,000/- 18,000x12x9

attendant
g) Future treatment expenses 8,00,000/- 8,00,000/- Reasonable assessment

PART-II
h) Compensation for pain and 8,00,000/- 3,00,000/- Reasonable assessment
sufferings
i) Compensation for permanent 21,00,000/- 16,03,800/- 14,850x12x9x100/100
disability and loss of earning
power
j) Compensation for loss of 10,00,000/- 4,00,000/- Reasonable assessment
enjoyment and amenities and
inconvenience caused
Total 94,78,000/- 77,48,562/-
(Claim is limited
to ₹)75,00,000/-)

22. The petitioner is entitled for ₹)77,48,562/- (Rupees Seventy

seven lakhs forty eight thousand five hundred and sixty two only)

as compensation. The petitioner is entitled for interest @7% per annum

(Dharampal and others v. UP State Road Transport Corporation –

 14 OP(MV) 130/2023

2008 (2) KHC 939) for the awarded amount excluding the amounts

meant for future treatment expenses and bystander expenses, from the

date of petition namely 07.03.2023 till realisation with proportionate

costs. The issue is answered accordingly.

23. Issue No.4.

The 1st respondent is the driver of the offending vehicle and as tort

feaser, he shall be liable to compensate the petitioner. The 2 nd

respondent is the owner of the offending vehicle and he shall be

vicariously liable towards petitioner. The 3rd respondent is the insurer of

the offending vehicle. No breach of policy condition was proved. So,

the 3rd respondent shall be liable to indemnify the loss which arose out

of the use of the vehicle and accordingly the 3rd respondent/insurer shall

satisfy the award. The issue is answered accordingly.

24. Issue No.5.

In the result, OP(MV)130/2023 is allowed in part as follows:

1. Award is passed for a sum of ₹)77,48,562/- (Rupees Seventy

seven lakhs forty eight thousand five hundred and sixty two

only)with interest @7% per annum for an amount of

₹)50,04,562/- (Rupees Fifty lakhs four thousand five hundred

 15 OP(MV) 130/2023

and sixty two only) from 07.03.2023 the date of petition, till

realisation with proportionate costs.

2. The 3rd respondent shall produce cheque for ₹)76,858/- drawn

in favour of MACT, Thodupuzha towards court fee payable by

the petitioner and cheque for ₹)77,486/- as additional court fee

meant for legal benefit fund.

3. The 3rd respondent shall transfer an amount of ₹)35,00,000/- by

way of Electronic fund Transfer to the account of husband of

victim (next friend).

4. The 3rd respondent shall produce cheque for the balance

amount in the name of victim and the same shall be deposited

in a nationalised bank under MACAD scheme for a period of 9

years. The monthly return from the deposit shall be

transferred to the bank account of husband of victim (next

friend).

5. The husband of petitioner (next friend) shall produce true

copies of PAN card, Aadhar card, relevant page of bank pass

book containing photograph, account number and IFSC code

of petitioner as well as next friend within 10 days after serving

 16 OP(MV) 130/2023

copies to the insurer or its counsel, if not already produced.

Failure of petitioner to serve the account details to the insurer

or its counsel shall dis-entitle the petitioner to claim interest

during the period of failure.

6. The respondent/insurer shall comply the terms of award

within 30 days from today. The insurer shall produce records

showing compliance before the Tribunal immediately after the

compliance.

Dictated to the Confidential Assistant, transcribed by her, corrected and

pronounced by me in open court, this the 16 th day of October 2023.
Sd/-
Nixon M. Joseph
M A C T, Thodupuzha
APPENDIX
Petitioner's Exhibits:
A1 – Certified copy of FIR & FIS in Cr. No. 1128/22 of
Nedumkandam P S
A2 – Certified copy of Charge
A3 – Certified copy of AMVI report of vehicle No. KL 15-A 1998
involved in the accident
A4 – Certified copy of Scene Mahazer
A5 – Certified copy of Wound Certificate
A6 -- Copy of Aadhar card
A7 -- Attested copy of Aadhar card
A8 -- Treatment summary
A9 -- Discharge summary dated 15/01/2023
 17 OP(MV) 130/2023

A10 -- Discharge summary dated 06/04/2023

A11 -- Discharge summary dated 10/06/2023
A12 -- Discharge summary dated 25/07/2023
A13 -- M R I Scan report
A14 -- Series of Medical Bills
A15 -- Ambulance bill
A16 -- Disability Certificate
A17 -- Series of Photographs
A18 -- Physiotherapy Bill for Rs. 18,900/-
A19 -- Discharge summary dated 31/07/2023
A20 -- Physiotherapy Bill
A21 -- Series of Medical Bills
A22 -- Ambulance bill for Rs. 1600/-
A23 -- Discharge summary(Discharged on 26/09/2023)
A24 -- Ambulance bill for Rs. 1000/-
A25 -- Medical bills for Rs. 60,752/-
Respondent's Exhibits :
B1 -- Policy copy
Petitioner’s Witness :
PW1 -- 29/07/2023 Rajan E R
PW2 -- 08/08/2023 Dr. K.Mahadevan.
Court Exhibits: : Nil

Respondent's Witness : Nil

Court Witness: Nil

Id/-
Motor Accident Claims Tribunal
 18 OP(MV) 130/2023

OP(MV)No.130/2023
PETITIONER’S RESPONDENT’S
Rs. Ps. Rs. Ps.
76,858.00 Court Fee
5.00 Stamp for Vakalath 5.00
35.00 Stamp for Petition
50.00 Stamp for documents
90.00 Process Fee
150.00 Clerical Expenses
100.00 Typing charge
100.00 Writing Fee
3,89,828.00 Advocate Fee(Sr.)
1,94,914.00 Advocate Fee(Jr.)
700.00 Witness Bata
77,485.00 L.B.F.
7,40,315.00 Total 5.00
Allowed Not allowed
(Certified) (Not certified)
Id/- Id/- Id/-
Clerk Head Clerk M.A.C.T
//True Copy// (By Order)

Head Clerk
Typed by: Shaji P T
Compred By.Ambili P.N.
NB: The parties should apply as soon as possible for the return of all documents which they may wish to preserve, as the
record will be liable to be destroyed after twelve years from this date