Jayakumar v. The Managing Director, Kerala State Road Transport Corporation, and Premkumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA,** **1943** ## **MACA NO. 2714 OF 2012** **AGAINST THE AWARD IN OP(MV) 1625/2004 OF MOTOR ACCIDENTS** ## **CLAIMS TRIBUNAL, ATTINGAL** ## **APPELLANT/APPLICANT :** **JAYAKUMAR, S/O. KRISHNAN NAIR, ARCHANA (TC-4/1538), KAWDIAR (PO), THIRUVANANTHAPURAM.** **BY ADVS. SRI.RAM MOHAN.G. SRI.MANU V. SRI.G.P.SHINOD** ## **RESPONDENTS/RESPONDENTS :** - **1 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM695023.** - **2 PREMKUMAR, S/O. N. MADHAVAN PILLAI, KARIPOOR (PO), NEDUMANGAD, THIRUVANANTHAPURAM-695541.** **BY SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. SRI.JOHN MATHEW, STANDING COUNSEL** **BY ADV.SRI.ALEX ANTONY SEBASTIAN P.A.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2714 of 2012 ..2.. ## **M.A.C.A.No.2714 of 2012** ## **-------------------------------------------------------** ## **J U D G M E N T** The original petitioner in O.P.(MV)No.1625 of 2004 on the file of the Motor Accidents Claims Tribunal, Attingal has preferred this appeal challenging the award dated 16.04.2012 in the above case. Respondents 1 and 2 herein are the respondents before the tribunal. 2. Heard the learned counsel on both sides. 3. The crux of the petition is that the petitioner/appellant, who met with an accident on 08.09.2004 at 2.30 p.m. near Aruvikkara village office, approached the Tribunal and claimed compensation to the tune of Rs.5,00,000/- attributing negligence against the second respondent, the driver of the KSRTC bus alleged to be involved in the accident. 4. First respondent filed written statement and resisted the claim disputing negligence and quantum. The Tribunal relied on documentary evidence marked as Exts.A1 to A13 on the side of the M.A.C.A.No.2714 of 2012 ..3.. petitioner and after hearing both sides, the Tribunal granted compensation to the tune of Rs.65,000/-. 5. The learned counsel for the appellant would submit that the monthly income fixed by the Tribunal is only Rs.3,000/- as against the claim of Rs.20,000/-. According to the learned counsel for the appellant, the appellant was running a medical shop and he was doing the work of sales man also at the time of accident. Therefore, the Tribunal went wrong in reducing the monthly income claimed. At the same time, the learned counsel conceded that the Tribunal negatived the contention as canvassed in the matter of monthly income, on the finding that documents produced as Exts.A10 to A12 would indicate running of medical shop by the appellant during 2006. In this context, it is submitted by the learned counsel for the appellant further that the additional documents, viz., copies of drug license issued for the period from 20.07.1996 to 31.12.1997 and renewal of license from 01.01.2017 to 31.12.2021 were produced along with the appeal memorandum. I am not inclined to accept these additional documents also, since the said documents also not for the period of 2004(year of accident) as the same has no M.A.C.A.No.2714 of 2012 ..4.. nexus with the period of accident. Therefore, the application I.A.No.1 of 2021 stands dismissed. 6. It is pointed out by the learned counsel for the KSRTC that no document produced to prove the actual income of the petitioner in any manner and mere running of medical shop, if admitted, the same by itself is not a reason to fix the monthly income at Rs.20,000/- claimed by the petitioner without substantial evidence to prove for the same. 7. Perusal of the documents marked as Exts.A10 to A12 produced by the appellant before the Tribunal to prove his profession and income, it could be noticed that Exts.A10 is a photocopy of certificate of registration issued during 2007, that is three years after the accident. Similarly, Ext.A11 is also a licence issued from Karakulam Grama Panchayat during 2007 to run Padma Medicals. Coming to Ext.A12, the same also is a licence to manufacture and sale of food items issued during 2007. Thus, the Tribunal correctly observed that no documents produced either to prove the status of the appellant as a person running medical shop or to prove the exact income derived there from during 2004. In this M.A.C.A.No.2714 of 2012 ..5.. context, it is relevant to note that the submission based on Exts.A10 to A12 is admitted, for argument sake, to hold that the petitioner had been running medical shop during the relevant time of accident, then also no document showing the actual income or to find atleast average income is not produced before the Tribunal or before this Court. If the petitioner is having the substantial income as claimed, he could very well produce income tax returns or bank statements showing the income. Therefore, the actual income as claimed by the appellant cannot be considered in this case. Thus, following the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.,** monthly income of the appellant is fixed at Rs.4,500/-, since no evidence otherwise available to find his income during 2004 as Rs.20,000/-. 8. According to the learned counsel for the petitioner, the petitioner sustained injuries viz., multiple fractured wounds over right forearm both bones and Type I fracture lateral condyle (right) tibia and whereby the appellant underwent treatment for a period of ten days from 08.09.2004 to 18.09.2004. The learned counsel for the appellant attempted to give emphasis to Ext.A8 disability certificate M.A.C.A.No.2714 of 2012 ..6.. to show that the appellant was on treatment for two years upto 2006. Ext.A8 is a disability certificate issued by Dr.J.R.Jagajeev. Though such recitals could be gathered from the disability certificate, the petitioner failed to produce any documents to show subsequent treatment after discharge on 18.09.2004. Taking note of the multiple fractures, I am of the view that the monthly income granted by the Tribunal for a period of four months can be increased for a further period of four months. Thus, the loss of earnings is re-calculated as under; ## 4500x8=36,000/- Out of which, Rs.12,000/- was granted by the Tribunal. **Rs.24,000/-** more is granted under the head loss of earnings. 9. It is submitted by the learned counsel for the appellant further that 16% disability was assessed by doctor who issued Ext.A8 after evaluating the injuries and consequential treatment. However, the Tribunal reduced the same to 5%. The learned counsel for the KSRTC would submit that 5% disability assessed by the Tribunal is reasonable and further increase cannot be granted. M.A.C.A.No.2714 of 2012 ..7.. 10. It is submitted by the learned counsel for the KSRTC that, as of now, the appellant has been running a medical shop and therefore, the disability in no way affected his income and in fact, no functional disability in this case. Considering the multiple fractures and consequential treatment as discussed, I am inclined to modify the percentage of disability to 9% and the disability income is recalculated as under; 4500X12x9x13% = 63,180/- out of which, Rs.23,400/- was granted by the Tribunal. 63,180-23,400= **39,780/-** more is granted under the head disability income. 11. Considering the injuries, pain and sufferings granted by the Tribunal can also be increased by **Rs.7,000/-** more. Similarly, under the head loss of amenities **Rs.5,000/-** more can be granted in addition to Rs.7,800/- granted by the Tribunal. In the result, this appeal is allowed in part. It is ordered that the appellant is entitled to get enhanced compensation to the tune of Rs.75,780/- (Rupees Seventy Five Thousand Seven Hundred and Eighty only) at the rate of 7.5% interest granted by the Tribunal, M.A.C.A.No.2714 of 2012 ..8.. excluding the amount already granted by the Tribunal, from the date of petition till the date of deposit or realisation excluding the period of 41 days wherein, grant of interest was specifically disallowed by the order in C.M.Application No.2 of 2012 dated 27.09.2021. 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 is at liberty to to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj