## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
```
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023/30TH KARTHIKA, 1945
MACA NO. 2676 OF 2018
```
```
OPMV 1889/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
```
## **`APPELLANT/S:`**
```
JANARDHANAN NAIR
AGED 68 YEARS
S/O. RAGHAVAN NAIR, PRANAVAM, NEDUMKUNNAM P.O.,
OLIKKARA, KOTTAYAM.
BY ADV V.SHYLAJA
```
## **`RESPONDENT/S:`**
```
K.V.GOPINATHAN NAIR
AGED 76, S/O. VASUDEVAKURUP, CHERUPUTHUPALLY,
KARUVAKKAL, NEDUMKUNNAM P.O., KOTTAYAM - 686 001.
BY ADV SRI.K.A.HASHIM
```
```
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 21.11.2023, ALONG WITH MACA.401/2019, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
```
M.A.C.A. Nos.2676/2018 & 401/2019
: 2 :
## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`**
```
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY,THE 21[ST] DAY OF NOVEMBER 2023/30TH KARTHIKA, 1945
MACA NO. 401 OF 2019
```
```
AGAINST THE ORDER/JUDGMENT OPMV 1889/2015 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
```
## **`APPELLANT/S:`**
```
K.V. GOPINATHAN NAIR
AGED 72 YEARS
S/O.VASUDEVA KURUP, RESIDING AT
CHERUPUTHUPPALLY (KARUVAKKAL) HOUSE,
NEDUMKUNNAM.P.O., KOTTAYAM DISTRICT, PIN-
686542.
```
```
BY ADVS.
K.A.HASHIM
SRI.M.I.ISMAIL
```
## **`RESPONDENT/S:`**
```
JANARDHANAN NAIR,
S/O.RAGHAVAN NAIR, PRANAVAM, NEDUMKUNNAM.P.O.,
OLIKKARA BHAGOM, KOTTAYAM DISTRICT, PIN-686542.
BY ADVS.
A.T.ANILKUMAR
V.SHYLAJA
```
```
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 21.11.2023, ALONG WITH MACA.2676/2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
```
M.A.C.A. Nos.2676/2018 & 401/2019
: 3 :
## JUDGMENT
Both these appeals arise from the award passed by the Tribunal in O.P (M.V) No.1889/2015 on the files of the Motor Accidents Claims Tribunal, Kottayam. (For convenience, the parties in these appeals are hereinafter referred to as per their respective ranks in the claim petition).
2. The said claim petition was submitted by the claimant, the appellant in M.A.C.A No.401/2019, seeking compensation for the injuries sustained to him in a motor accident that occurred on 15.09.2015. According to him, while walking through the road, he was knocked down by a scooter bearing registration No.KL33 4157 driven by the respondent. He was immediately taken to the hospital and underwent treatment. The claimant was 72 years old at the time of the accident and was working as a security guard with a monthly income of Rs.8,000/-. The claim petition was submitted seeking compensation of Rs.4,00,000/-.
3. Initially, the respondent was set exparte and an award was passed on 07.06.2016 directing the respondent to pay a compensation of Rs.3,18,800/- with 9% interest per annum from
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the date of petition till realisation. Later, the respondent filed I.A. No.468/2017, and the ex-parte award was set aside subject to the condition that the respondent shall deposit an amount of Rs.3,66,328/-. The said order was challenged before this Court by filing OP(MV) said No.92/2017, and as per judgment dated 05.10.2017, the said order was set aside, with a modification that the respondent has to deposit an amount of Rs.1,00,000/-. Consequently, the said amount was deposited, and the matter was reconsidered. After setting aside the award, the respondent filed a written statement disputing the negligence and quantum of compensation.
4. The evidence in this case consists of Exts.A1 to A10 from the side of the claimant. From the side of the respondent, RWs 1 and 2 were examined, and Exts.B1 and B2 were marked. 5. After the trial, the tribunal arrived at a conclusion that the accident occurred due to negligence on the part of the respondent in riding the scooter which he owned. The quantum of compensation was determined as Rs.3,18,800/- and the respondent was directed to deposit the said amount along with interest at the rate of 8% per annum. Seeking enhancement of
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the compensation, the claimant filed MACA No.401/2019 and challenging the quantum of compensation the respondent filed MACA No.2676/2018.
6. Heard Sri. K.A. Hashim, the learned counsel appearing for the claimant/appellant in M.A.C.A. No.401/2019 and Smt. V. Shylaja, the learned counsel appearing for the respondent, appellant in MACA No.2676/2018.
7. The first contention raised by the learned counsel appearing for the claimant is with regard to the finding on the question of negligence. It was contended by the learned counsel for the respondent that the place of occurrence was a curve, and all of a sudden, the claimant crossed the road without taking into account the traffic, resulting in the accident. However, the crucial aspect to be noticed in this regard is that the Police, in this case, conducted an investigation, and Ext.A2 final report was submitted implicating the respondent as the accused. Of course, it is true that, as against the conclusion in the final report, the respondent got himself examined as RW1 and another person was also examined as RW2. As far as the evidence of RW1 is considered,
the same cannot be accepted as such because it is a highly
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interested version. As far as evidence of RW2 is concerned, even though he was claimed to be a person who witnessed the incident, during the cross-examination, he admitted that he did not witness how the accident occurred, but he was among the people who gathered at the place of occurrence. Thus, there was no convincing reason to discard the conclusion arrived at by the Police, as evidenced by Ext.A2. Moreover, it is also a fact that the petitioner was only a pedestrian, and the scooter ridden by the respondent hit him. Thus in the absence of any convincing evidence, I do not find any justifiable reason to interfere with the finding of the tribunal on the question of negligence.
8. The next aspect relates to the quantum of compensation. The learned counsel for the respondent contends that, the amount awarded under the heads of loss of earnings, and transport to hospital, extra nourishment and bystander expenses were significantly on the higher side. The learned counsel for the respondent also highlights that even though no certificate of disability was produced, the tribunal fixed 3% disability and awarded an amount of Rs.14,400/- which was not at all warranted.
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9. On the other hand, the learned counsel appearing for the claimant would contend that the disability fixed by the tribunal was extremely on the lower side, taking note of the fact that he sustained two fractures, i.e., a fracture of the right tibia and fibula and comminuted fracture the distal 3rd of the right tibia. The said injuries would undoubtedly result in disability because he was 72 years old at the time of the accident. Moreover, the monthly income taken by the tribunal was also on the lower side.
10. I have carefully gone through the records. Of course, it is true that even though an amount of Rs.32,000/- was claimed under the head of loss of earnings, the tribunal has awarded compensation as Rs.40,000/- under the said head. Considering the nature of the injuries, the age of the victim and other relevant aspects, I am of the view that the said contention cannot be accepted. As the petitioner was a person aged 72 years, the fracture he sustained, would have taken more time to heel, and therefore, he must have been prevented from pursuing his employment during the said period. Therefore, I do not find any necessity to interfere in the finding of the tribunal with regard to the compensation under the head of loss of earnings. As regards
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the amount towards transport to the hospital, the learned counsel for the respondent points out that the Ext.A7 series of taxi bills, which were relied on by the claimant, cannot be accepted, as all the same were not properly proved. Moreover, the amount claimed under this head was only Rs.5,000/- but the tribunal awarded Rs.28,800/-. On going through the same, I find some force in the said contention. The amount claimed was Rs.5,000/and the Ext.A7 series taxi bills, based on which Rs.28,800/- was granted, were not at all convincing. No person was examined to prove the genuineness of the said document. When coming to the extra nourishment, even though an amount of Rs.5,000/- was claimed, Rs.5,100/- was awarded by the tribunal. Considering the nature of the injuries, the age of the victim and other relevant aspects, I do not find any necessity to interfere with the said award.
11. The other head, which was strongly disputed by the learned counsel for the respondent, is the bystander expenses. The amount awarded was Rs.15,000/-. The inpatient treatment the claimant availed was for 17 days. The tribunal, however, took note of the fact that, taking note of the injuries, he must have
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availed assistance of a third person to pursue his day-to-day activities for a period of three months. Considering the said aspect, Rs.15,000/- was fixed. However, I am of the view that the said amount appears to be slightly on the higher side, as there are no materials to substantiate the same. However, I am not inclined to modify the same because the same does not warrant any modification, as the total amount awarded appears to be reasonable, and hence, a small deduction under this head does not appear to be necessary.
12. When coming to the amount awarded for the compensation for permanent disability, the specific contention put forward by the learned counsel for the respondent is that the percentage of disability taken by the tribunal was 3%, which would not support the other documents. On the other hand, the learned counsel appearing for the claimant would seek further amounts under this head, contending that the nature of injuries would certainly attract more physical disability. The learned counsel for the claimant also contends that the monthly income taken by the tribunal is also on the lower side. It is to be noted that the monthly income taken by the tribunal was only
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Rs.8,000/-. The learned counsel for the petitioner contended that when the method of monthly income evolved from the principles laid down by the Honourable Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735], is adopted, the monthly income of Rs 8,000/- is the lower side. It is true that as per the said method of computation, even with respect to an ordinary employee, the monthly income can be reasonably fixed as Rs.4,500/- for an accident that occurred in the year 2004. To determine the monthly income for the subsequent years, this court usually adopts to add Rs 500/- per year. Thus, when the said method is adopted, it can be seen that the monthly income in 2015 would come to Rs 10,000/-. However, in this case, the claimant was 72 years old at the time of the accident, and considering the earning capacity of a person of that age under normal circumstances, the said method cannot be adopted. Moreover, in this case, the petitioner produced Ext A9 salary certificate, wherein the monthly salary was shown as Rs 7,889/-.
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13. As far as the percentage of disability is concerned, as pointed out by the learned counsel appearing for the petitioner, the nature of the injuries would certainly affect his earning capacity as two fractures were sustained by the claimant at the age of 72 years. Therefore, there is nothing wrong in taking the percentage of disability as 3%, which is reasonable and probable, even in the absence of any disability certificate.
14. In such circumstances, after considering the materials placed on record, I am of the view that, even though amount awarded under certain heads are on the higher side, no revision of compensation under any of the heads is required because the overall analysis of the compensation awarded under various heads would lead to the conclusion that reasonable compensation has been granted to the petitioners.
In such circumstances, I do not find any merit in either of these appeals, and accordingly, the appeals are dismissed, confirming the award passed by the tribunal.
Sd/ZIYAD RAHMAN A.A. JUDGE
rpk/ncd
