KunhimuHAMMED.K.K @ NANI v. The Managing Director, KSRTC, Thiruvananthapuram (Owner of the KSRTC Bus KL-15/2049) & The Branch Manager, United India Insurance Co. Ltd

1 MACA 690/2011 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` WEDNESDAY, THE 5[TH] DAY OF JULY 2023 / 14TH ASHADHA, 1945 ``` ## **`MACA NO. 690 OF 2011`** ## **`OPMV 209/2007 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS`** ## **`TRIBUNAL ,KALPETTA`** ## **`APPELLANT/S:`** ``` KUNHIMUHAMMED.K.K @ NANI, AGED 49 YEARS, S/O.AYOOB, KORANAKUZHIYIL HOUSE, EMILY KALPETTA POST,KALPETTA AMSOM DESOM, VYTHIRI TALUK, WAYANAD DISTRICT. ``` ``` BY ADV SMT.CELINE JOSEPH ``` ## **`RESPONDENT/S:`** ``` 1 THE MANAGING DIRECTOR,KSRTC, THIRUVANANTHAPURAM 695 001 (OWNER OF THE KSRTV BUS NO.KL-15/2049)(TN-15) ``` ``` 2 THE BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD THE BRANCH MANAGER,BRANCH OFFICE,RAWTHER BUILDING,NEAR PINANGOD ROAD,KALPETTA-673121(INSURER OF KL-12A/8449) ``` ``` BY ADVS. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. SRI.C.JOSEPH JOHNY. SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT CORPORATION ALEX ANTONY SEBASTIAN P.A. ``` ## **`OTHER PRESENT:`** ``` JOHN JOSEPH VETTIKKAD - R2 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2023, ``` ``` THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 MACA 690/2011 ## **JUDGMENT** (Dated this the 5[th] day of July 2023) The petitioner in O.P. (M.V.) No. 209 of 2007, on the files of the Motor Accidents Claims Tribunal, Kalpetta is the appellant. Being aggrieved by the amount of compensation awarded by the Tribunal, this appeal is filed. 2. On 21.2.2006, while the petitioner was travelling in an auto-rikshaw bearing reg. KL-12-A/8449, driven by the 3[rd] respondent from Kainatty to Kalpetta, and when it reached near S.K.M.J.School, a K.S.R.T.C. bus driven by the first respondent in a rash and negligent manner, which was going in front of the auto-rikshaw suddenly stopped without any signal, and the autorikshaw hit on the back side of the bus. 3. The petitioner, due to the accident, sustained injuries and was taken to Leo Hospital, Kalpetta, and referred to Medical College Hospital, Kozhikode. The accident happened due to the rash and negligent driving of the K.S.R.T.C. bus by its driver. The first respondent is the driver, and the second respondent is 3 MACA 690/2011 the owner of the K.S.R.T.C. bus. The third respondent is the owner-cum-driver of the auto-rikshaw, and fourth respondent was the insurer of the auto-rikshaw. 4. Respondent Nos.1 and 3 were set ex-parte. The second respondent filed a written statement contending that the accident happened due to negligence on the part of the auto-rikshaw driver. The 4[th] respondent filed a written statement admitting the insurance coverage of the auto-rikshaw at the time of the accident. There was ‘A’ and ‘B’ charges against both the drivers of the autorikshaw and K.S.R.T.C. bus. The third respondent was not holding a valid badge at the time of the accident and, therefore, denied the claim. 5. The Tribunal raised four issues and based on oral testimony of PW1 and Exts.A1 to A14, B1, and C1, allowed a compensation of Rs.2,18,020/- with interest at the rate of 7.5% per annum from the date of filing till date of payment. The petitioner, aggrieved by the compensation on various heads, has 4 MACA 690/2011 filed this appeal. 6. We have heard the learned counsel for the appellant and the respondents. 7. The accident happened on 21.2.2006, and the appellant was aged 46 years at the time of the accident. He claims to be a headload worker earning Rs.6,500/- monthly. Ext.A13 passbook was produced from the appellant’s side to show that he was a headload worker. The 4[th] respondent contended that ExA13 was issued on 15.5.2007 after the date of the accident, and hence, it cannot be accepted in evidence. So, based on oral evidence of PW1, the Tribunal held that his monthly income could be Rs.3,500/-. Therefore, the loss of earnings at the rate of Rs.3,500/- for 3 months (Rs.10,500/-) was awarded. 8. The counsel for the appellant submitted that the income taken by the Tribunal is on the lower side and that the Tribunal ought to have taken future prospects also in computing compensation for permanent disability. The appellant claims 5 MACA 690/2011 Rs.6,500/- per month, but to substantiate the fact, no document was produced before the Tribunal. Relying on the decision reported in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236],** in which it was held that the monthly income of a coolie, who met with an accident in the year 2006 is to be taken as Rs.5,500/- per month. Hence, I am inclined to take the income of the appellant as Rs.5,500/- per month. The appellant was referred to the Medical Board, and his permanent disability was 32%, as evidenced by . Ext.C1 report Since the disability is only 32% and also taking note of the injuries sustained by the appellant, I am not inclined to consider future prospects for computation of permanent disability. As the appellant was aged 46 years, the proper multiplier adopted is 13. So, the compensation for permanent disability is calculated as Rs.5,500x12x13x32/100 = Rs.2,74,560/-. 9. For pain and suffering, the Tribunal awarded Rs.12,000/against the claim of Rs.50,000/-. Ext.A5 discharge card from 6 MACA 690/2011 Medical College Hospital, Kozhikode shows that the appellant sustained a head injury – hemorrhagic contusion left frontal region, pneumo cephalics multiple facial bone fracture, and 4th and 5th ribs (left )side fracture. He was in hospital from 21.02.2006 to 6.3.2006 and again hospitalised from 10.2.2010 to 19.2.2010 and underwent another operation. Taking note of the above injuries, I hold that the amount by the Tribunal under pain and suffering is on the lower side. Therefore, it is refixed at Rs.30,000/- 10. The Tribunal has considered loss of earnings, at the rate of Rs.3,500/- for 3 months. When this court fixes the income at Rs.5,500/-, the loss of earnings will come to Rs.5,500 x 3= Rs.16,500/-. Thus the appellant is entitled to Rs.6,000/- under the head. 11. Towards loss of amenities, no amount was awarded by the Tribunal. Since head injuries and multiple facial and fractures of 4[th] and 5[th] ribs were sustained by the appellant, the appellant 7 MACA 690/2011 will lose a few amenities and convenience in his future life. So, considering the same, Rs.10,000/- is awarded under loss of amenities and comfort. 12. Though the appellant claimed compensation for future treatment, I am not inclined to award any amount under the head since there is no evidence for the same. Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl.No.|Head of Claim|Amt.Awarded<br>by Tribunal<br>(Rs.)|Amt.Enhanced in<br>appeal<br>(Rs.)| |---|---|---|---| |1|Loss of permanent<br>disability|<br>1,74,720|2,74,560| |2|Pain and suffering|12,000|30,000| |3|Loss of earnings|10,500|16,500| |4|Loss of amenities and<br>conveyance|<br>…|10,000| ||TOTAL|1,97,220|3,31,060| |Total amount enhanced : 3,31,060-1,97,220 = 1,33,840/-|||| 8 MACA 690/2011 In the result, the appeal is allowed, and the appellants are entitled to an amount of Rs.1,33,840/- (Rupees one lakh thirty three thousand eight hundred and forty). The Insurance Company shall pay interest at the rate of 7.5% per annum for the enhanced amounts from the date of petition. All other findings entered by the Tribunal stand confirmed. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment, and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period specified by this Court. If the enhanced amount is higher than the amount claimed in the Original Petition, the appellant will have to pay the balance court fee. SD/- **BASANT BALAJI, JUDGE** _dl/_