Ahanas s/o Abdul Kareem v. Rajesh Kumar and others

M.A.C.A. No.1064/2013 1 # _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 29[TH] DAY OF MAY 2023 / 8TH JYAISHTA, 1945 ``` ``` MACA NO. 1064 OF 2013 ``` ``` AGAINST THE ORDER/JUDGMENTOPMV 125/2009 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS ``` ## _`TRIBUNAL ,KALPETTA`_ ## _`APPELLANT/PETITIONER:`_ ``` AHANAS S/O. ABDUL KAREEM, KALARIKANDY HOUSE, AMBUKUTTY P.O., MANANTHAVADY TALUK, WAYANAD DISTRICT. ``` ``` BY ADV SRI.ABRAHAM MATHEW (VETTOOR) ``` ## _`RESPONDENTS/RESPONDENTS:`_ ``` 1RAJESH KUMAR S/O. JOSE, KARAPPAKUZHIYIL HOUSE, CHERUPALAM P.O., BALUSSERY, KOZHIKODE-673 612. (DRIVER OF THE BUS NO.KL-11/X-2169), D.L.NO NOT KNOWN. 2P.RADHAKRISHNAN S/O. CHOYI, POYILIL HOUSE, MADAVOOR P.O., NARIKUNI, KOZHIKODE DISTRICT-673 585. (OWNER OF THE BUS NO.KL-11/X-2169). 3THE ORIENTAL INSURANCE CO. LTD. BADAKARA, KOZHIKODE-671 541. 4E.P.PRASAD S/O. BALAN, MADAVOOR HOUSE, KUNNAMANGALAM P.O., KOZHIKODE DISTRICT-673 571. (DRIVER OF THE KSRTC BUS NO.KL-15/4290), D.L.NO. NOT KNOWN. 5THE MANAGING DIRECTOR KSRTC, THIRUVANANTHAPURAM-695 001. (OWNER OF THE KSRTC BUS NO.KL-15/4290). ``` M.A.C.A. No.1064/2013 2 ``` BY ADVS. SMT.REKHA NAIR- R3 SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. SMT.REKHA NAIR SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT CORPORATION ALEX ANTONY SEBASTIAN P.A.- R5 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.1064/2013 3 ## **JUDGMENT** The petitioner in O.P.(MV) No.125 of 2009 on the file of the Motor Accidents Claims Tribunal, Kalpetta has filed this appeal aggrieved by the quantum of compensation awarded by the Tribunal. The parties to this appeal will hereinafter be referred to as petitioner and respondents in accordance with their status in the claim petition. 2. Heard Sri.Abraham Mathew, the learned counsel for the petitioner, Smt. Rekha Nair, the learned counsel for the 3[rd] respondent and Sri. Alex Antony Sebastian, the learned standing counsel appearing for the 5[th] respondent Insurance Company. 3. According to the petitioner, on 08.09.2007, while he was travelling in a K.S.R.T.C bus bearing M.A.C.A. No.1064/2013 4 Registration No. KL-15/4290 from Mananthavady to Kozhikode, when it reached at 11[th] Mile, Kunnamangalam, another bus bearing Registration No. KL 11X/2169, driven by the 1[st] respondent rashly and negligently, hit against the K.S.R.T.C bus and he sustained serious injuries. He filed the claim petition seeking compensation of Rs.1,50,000/- for the personal injuries sustained in the accident. 4. Before the Tribunal, respondents 1 and 2 remained ex parte. Exts.A1 to A7 series were marked on the side of the petitioner. No evidence, either oral or documentary, was adduced by the respondents. Ext.C1 disability certificate was marked as Court exhibit. 5. The 3[rd] respondent insurer filed a written statement admitting existence of valid policy of insurance of the private bus at the time of the accident. However, they contended that the accident happened due to the negligence of the driver of the KSRTC bus M.A.C.A. No.1064/2013 5 and that the compensation claimed is excessive. 6. Respondents 4 and 5 filed a joint statement before the Tribunal denying negligence on the part of the 4[th] respondent, the driver of the KSRTC bus. 7. The Tribunal found that the accident happened due to the negligence of the 1[st ] respondent, the driver of the private bus and awarded a total sum of Rs.67,400/- as compensation for the personal injuries sustained by the petitioner and directed the insurer to satisfy the award with interest at 7.5% per annum from the date of petition till realisation, with proportionate costs. 8. Aggrieved by the quantum of compensation awarded, the petitioner has come up in appeal. 9. The petitioner was an electrician. According to him, as on the date of the accident, he was having a monthly income of Rs.5,000/-. The Tribunal fixed the monthly income of the petitioner as Rs.3,000/- M.A.C.A. No.1064/2013 6 notionally in the absence of any other evidence regarding his income. Going by the decision of the Hon’ble Supreme Court in **Ramachandrappa v Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], I re-fix the monthly income of the petitioner as Rs.6,000/-. 10. The Tribunal found that the petitioner was treated as inpatient for 17 days and he could not go for work for a period of three months. The Tribunal awarded an amount of Rs.9,000/- (Rs.3000x3) as compensation for loss of earnings. Since I have re-fixed the notional income of the petitioner as Rs.6,000/-, he is entitled for an enhanced amount of **Rs.9,000/-** [(3x6000)-9000] under the said head. 11. Towards pain and sufferings, though the petitioner claimed Rs.25,000/-, only an amount of Rs.10,000/- was awarded. Taking note of the injuries sustained by the petitioner, I find that he is entitled for M.A.C.A. No.1064/2013 7 an amount of Rs.20,000/- and an additional sum of **Rs.10,000/-** (20000-10000) is awarded under the said head. 12. While calculating compensation for permanent disability, the Tribunal took the percentage of disability of the petitioner as 5% as certified by the medical board in Ext.C1 and applied the multiplier of ‘17’. Going by the facts of the case, I take the functional disability of the petitioner as 5% for the purpose of assessment of disability compensation. Accordingly, the compensation for permanent disability is re-worked as Rs.61,200 (6000x12x17x5/100). Since the petitioner has already been awarded an amount of Rs.30,600/-, he is entitled for an enhanced compensation of **Rs.30,600/-** under the said head. 13. Towards loss of amenities, only an amount of Rs.2,000/- has been awarded by the Tribunal. Taking into account the age of the petitioner, the percentage of M.A.C.A. No.1064/2013 8 disability and the injuries sustained, I award an amount of Rs.15,000/- resulting in an additional sum of **Rs.13,000/-** under the said head. 14. An amount of Rs.2,000/- has been awarded under the head loss of earning power. In view of the compensation awarded under other heads, the petitioner is not entitled for any amount under the head loss of earning power. Therefore, the amount of **Rs.2,000/-** awarded under the said head is to be deducted from the total compensation. 15. I find that the compensation awarded under other heads is just and reasonable. 16. Accordingly, the petitioner is entitled for an enhanced compensation of **Rs.60,600/-** (9000+10000+30600+13000-2000) with 7.5% interest per annum from the date of the petition till realisation and proportionate costs. The 3[rd] respondent Insurance Company is directed to deposit the said amount along M.A.C.A. No.1064/2013 9 with interest and costs before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. While calculating the interest on enhanced compensation, the petitioner will not be entitled for interest for the period of 134 days in view of the order dated 20.12.2021 in C.M.Appl.No.2/2013. The appeal is disposed of as above. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-.+