Pushpakaran v. Muhammedali and Ors.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943 MACA NO. 2442 OF 2013 AGAINST THE AWARD IN OP(MV) 986/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM ## APPELLANT/PETITIONER : PUSHPAKARAN, AGED 54 YEARS, S/O. APPU, VARIYAPPATTU HOUSE, KOLAZHY DESOM, KOLAZHY VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. BY ADVS. SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN ## RESPONDENTS/RESPONDENTS : 1 MUHAMMEDALI, AGED 34 YEARS, S/O. KHADER, KADATHOTTIL HOUSE, CHOONAGHAT, AMBALAPPARA, OTTAPALAM (VIA), PALAKKAD, (DRIVER OF KL-G-AJ-7505 BUS) 2 SHOBY K.V., S/O. VAREED, KURUTHIKULANGARA HOUSE, PARAPPUR PO, THRISSUR (OWNER OF KL-G-AJ-7505 BUS) 3 THE ORIENTAL INSURANCE COMPANY LIMITED THIRUVAMBADY DEVASAM BUILDING, 2ND FLOOR, ROUND WEST, THRISSUR POLICY NO. 441101/31/2009/9676 VALID FROM 24-11-08 TO 23-11-2009 M.A.C.A.No.2442 of 2013 ..2.. *4 JUNESH.C.K, S/O. MOHAMMEDALI, CHERUKARA(H), MANAPPAD.P.O., MALAPPURAM.(DELETED) *5 BASHEER, S/O. MOOSA, AMBALAPPADI (H), PUTHIPADI, THAMARASSERY, KOZHIKODE-673001.(DELETED) *6 NEW INDIA ASSURANCE COMPANY LTD. SHAFEER COMPLES, OPP. YMCA, KANNUR ROAD, CALICUT-673001, P. NO. 761300/31/08/01/00008838 VALID UPTO 18/1/09 TO 17/1/11(DELETED) *RESPONDENT NOS.4, 5 AND 6 ARE DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 07.02.2014 IN I.A.NO.3435/2013 IN MACA NO.2442/2013. BY ADV.SRI.R.SREEHARI FOR R1 BY SMT.A.SREEKALA FOR R3, STANDING COUNSEL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.2442 of 2013 ..3.. ## **M.A.C.A.No.2442 of 2013** ## **-------------------------------------------------------** ## **J U D G M E N T** The original petitioner in O.P.(MV)No.986 of 2009 on the file of the Motor Accidents Claims Tribunal, Ottapalam is the appellant and award dated 27.03.2013 in the above case is under challenge herein. Respondents 1 to 6 herein are the respondents before the Tribunal. Thereafter, respondents 4 to 6 are deleted from the party array. 2. The appellant, who met with an accident on 07.11.2009 at about 1.30 p.m. at Viyyur White Field road junction, approached the Tribunal and claimed Rs.1,10,000/- as compensation alleging negligence against the first respondent, who alleged to have driven bus bearing registration No.KL 8 AJ 7505 at the time of accident. 3. Heard the learned counsel on both sides. M.A.C.A.No.2442 of 2013 ..4.. 4. Respondents 1, 2, 4 and 5 were set exparte by the Tribunal. 5. The third respondent, the insurer of the bus filed written statement and disputed the accident as well as the negligence. Quantum of compensation also was disputed. Policy violations alleged on the ground that the vehicle did not have fitness certificate and permit at the time of accident. Negligence attributed against the third respondent who had driven lorry bearing registration No.KL 11 N 9892. 6. The sixth respondent, the insurer of the lorry also filed written statement disputing the accident and negligence and also the quantum. Policy violations are alleged on the ground that the fourth respondent had no valid driving license and badge at the time of the accident. 7. The Tribunal recorded the evidence in this matter. The Tribunal examined PW1 and marked Exts.A1 to A11 on the side of the petitioner. Ext.B1 marked on the side of the M.A.C.A.No.2442 of 2013 ..5.. third respondent, insurer of the bus. 8. The Tribunal after having appraisal of the evidence, granted Rs.39,700/- with interest at the rate of 9% per annum. 9. The learned counsel for the appellant would submit that the Tribunal went wrong in fixing the monthly income at the rate of Rs.3,000/- per month, though the petitioner had put a specific contention that he had been running service station and he had been earning Rs.10,000/per month. In support of the contention, the learned counsel for the appellant placed reliance on Ext.A11, copy of license issue by the Secretary of Kolazhy Grama Panchayat and the oral version of PW1. As per Ext.A11, it is stated that the license was issued to run service station for the period 20112012 upto 31.03.2012. It is submitted by the learned insurance company as well as the contesting first respondent that no substantive evidence to prove the job and income of M.A.C.A.No.2442 of 2013 ..6.. the appellant and therefore, the Tribunal could not be faulted in the matter of fixing Rs.3,000/- as the monthly income. 10. It is not in dispute that going by the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.,** Rs.4,500/- is fixed for the year 2004 and addition at the rate of Rs.500/- is given, Rs.7,000/- can safely be fixed as the monthly income of the appellant. The learned counsel for the appellant vehemently canvassed to fix the income at Rs.10,000/- relying on the evidence of PW1 and Ext.A11. It is true that PW1 during chief examination asserted that he was running service station and he was earning Rs,10,000/-. However, during crossexamination, his evidence was that he did not produce any license, though he had license. It appears that Ext.A11 was produced at a later stage, however, Ext.A11 does not suggest that the appellant was given license for running service station during 2009 or 2010. Thus, document Ext.A11 could not be M.A.C.A.No.2442 of 2013 ..7.. relied on to find running of service station by the appellant during 2009. 11. Having noticed the facts and circumstances as discussed, I am of the view that Rs.7,500/- can be fixed as the monthly income in this case. 12. Here, the learned counsel for the appellant canvassed increase in the other heads by highlighting the injuries sustained by the appellant. He also submitted that though 4% disability assessed as Ext.A10 was produced before the Tribunal, the Tribunal did not grant any amount under the head and Ext.A10 was rejected. 13. As per Ext.A2 wound certificate, the appellant sustained fracture of ribs 4[th] , 5[th] and 6[th] right, right hawmopneumothorax and contusion of lung(lower) both lobes. Consequential treatment also could be gathered. Considering the seriousness of injuries, the loss of earnings granted by the Tribunal for a period of three months can be enhanced for a M.A.C.A.No.2442 of 2013 ..8.. period of four months at the rate of Rs.7,500/-. Thus, the appellant is entitled to get Rs.30,000/- under the head loss of earnings. Out of which, Rs.9,000- was granted by the Tribunal and the balance **Rs.21,000/-** more is granted as enhanced compensation. 14. As regards the age of the appellant, as per Ext.A3, he voluntarily stated his age as 50 years, no other convincing evidence otherwise available. Therefore, I am inclined to fix his age as 50 years and the appropriate multiplier is '13' (thirteen), since no serious dispute in relation to the age of the appellant. 15. On the question of disability, Ext.A10 would go to show that the appellant sustained 4% disability in consequence of the rib fractures as already mentioned. The Tribunal did not accept the disability for the reason that the doctor was not examined. 16. Here, evidently, the appellant sustained rib M.A.C.A.No.2442 of 2013 ..9.. fractures and therefore, 4% disability assessed as per Ext.A10 need not be disbelieved for want of examination of the author of Ext.A10. Therefore, I am inclined to accept 4% disability as per Ext.A10 and the disability income is calculated as under; 7,500x12x13x4% = **46,800/-** is granted under the head. 17. Coming to pain and sufferings, Rs.12,000/- was granted by the Tribunal. Considering the nature of injuries discussed, I am inclined to grant **Rs.5,000/-** more under the head pain and sufferings. Towards loss of amenities also, **Rs.8,000/-** more is granted. 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.80,800/-** (Rupees Eighty Thousand Eight Hundred only) at the rate of 9% interest granted by the Tribunal from the date of petition till the date of deposit or realisation excluding the period of 158 days M.A.C.A.No.2442 of 2013 ..10.. wherein, grant of interest was specifically excluded as per order in C.M.Application No.3027 of 2013 dated 28.09.2021. It is noticed that court fee for Rs.1,10,000/- alone was valued by the appellant and he is liable to pay court fee for the enhanced compensation to the tune of Rs.105/-. Therefore, the insurance company is directed to deposit Rs.105/- in addition to the court fee already ordered by the Tribunal by separate cheque in the name of M.A.C.T. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj