IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 MACA.No. 215 of 2007(F) ---------------------- OPMV.253/1998 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANTS/RESPONDENTS 1,2 IN OPMV ------------------------------------------------ 1. V.R.CHIDAMBARAN,S/O.RAMAN PILLAI, VELLAKUDATH HOUSE,ERUMALIKARA,KUMARAPURAM P.O. 2. V.MOHANDAS,S/O.V.R.CHIDAMBARAN, VELLAKUDATH HOUSE,ERUMALIKARA,KUMARAPURAM P.O. BY ADV. SRI.V.K.ISSAC SRI.K.K.APPU SRI.ISAC SANJAY RESPONDENTS/PETITIONER IN OP & RESPONDENTS 3,4 ------------------------------------------------------------- 1. K.G.ANTONY,KUTTIKKATTU HOUSE,PONOTH ROAD, KALOOR. 2. UNITED INDIA INSURANCE CO.LTD,KOCHI-11. ADV. SRI.MATHEW SEBASTIAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON 10/06/2009 PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ ---------------------------------- M.A.C.A.No. 215 of 2007 -------------------------------- J U D G M E N T Dated this the 10th day of June, 2009. Abdul Rehim,J. 1. The registered owner and rider of a scooter bearing registration No:KL-7/K 3278 which involved in the accident, are the appellants herein. They were respondents 1 and 2 in the claim petition OP(MV) No:253/98 filed by the first respondent herein, before the Motor Accident Claims Tribunal, Ernakulam. The accident occurred when the scooter hit against a motor cycle driven by the first respondent/claimant. The Tribunal, mainly relying on records of the criminal case registered in connection with the accident, held that rashness and the negligence on the part of the 2nd appellant had resulted in the accident. The scooter in question was not covered by any valid insurance policy as on the date of accident. Therefore the 3rd respondent – insurance company was exonerated from the liability. The appellants are challenging the findings with respect to negligence aspect, as well as quantum of compensation awarded by the Tribunal as excessive. 2. Heard Sri. V.K. Isac, learned counsel appearing for MACA.215/07 2 the appellants, learned counsel for the 1st respondent and standing counsel appearing for the 2nd respondent. The appellants placed reliance on Exts.A6 and A7, A.M.V.I. reports of both the vehicles involved in the accident, to point out that damages sustained to the motor cycle was on its front side whereas damages sustained to the scooter was on its right side engine cover. Therefore, the contention is that the accident in fact occurred when the motor cycle hit on the right side of the scooter. The learned counsel for the 1st respondent on the other hand contended that from Ext.A4 scene mahazar it is clear that the road at the spot of accident is having a total width of 6 Meters, and the spot of accident is at 4.44 Meters inside from the southern tar end, towards north. Therefore it is clear that the claimant was riding his motor cycle through the correct side of the road and the scooter went wrong side and hit on the motor cycle. Further it is pointed out that the investigation of the criminal case had resulted in charge sheeting the 2nd appellant, finding him guilty of negligence in causing the accident. The claimant had adduced oral evidence as PW1 clearly corroborating the version in the police records. But the appellants/respondents 1 and 2 had not cared to adduce any contra evidence. From the facts and circumstances of the case and evidence on record we do not find any reason to interfere MACA.215/07 3 with the findings arrived by the Tribunal with respect to the aspect of negligence. 3. The claimant sustained fracture and dislocation of right knee. He was under treatment as inpatient for 27 days. Inter condylar fracture of the upper end of the right tibia was also detected. According to Ext.A10 disability certificate the injuries sustained had resulted in continuing permanent disability to the claimant to the extent of 10%. Ext.A10(a) is another disability certificate issued by the Medical Board, which also certified the extent of disability as 10%. Eventhough the counsel for the appellants vehemently argued that the amount of Rs.38,400/- awarded as compensation for disability is on the higher side, we could not find anything to accept such an argument. The claimant is an Aluminium Fabrication worker, who claims that he was getting daily wages @ Rs.150/-. He was aged 36 at the time of accident. A13 certificate was produced to prove his income @ Rs.4,000/-. But the Tribunal took Rs.2,000/- only, as his monthly income for calculating compensation for disability, adopting proper multiplier of 16. 4. The further contention of the appellant is that of Rs.20,000/- granted for pain and sufferings and Rs.15,000/- granted for loss of amenities, are highly excessive. The contention is that the permanent disability, if any persisted, will MACA.215/07 4 not be affecting normal life and earning capacity of the claimant. For a simple fracture and hospitalisation for 27 days, the amount granted under the heads of pain and suffering and amenities to life are on the higher side. We find some force in the contentions in this regard. Therefore, considering the entire facts and circumstances of the case and evidence on record, we feel that a reduction of Rs.15,000/- out of the total compensation amount of Rs.1,10,757/- awarded by the Tribunal, will be reasonable and justifiable in order to meet ends of justice. The appellant makes a further contention that the rate of 9% interest granted by the Tribunal for an accident which occurred in the year 1998 is highly excessive and unreasonable. We find force in the argument and we are inclined to reduce the rate of interest from 9% to 7.5%. 5. In the result, the appeal is partly allowed modifying the award of the Tribunal, reducing the compensation from Rs.1,10,757/- to Rs.95,757/-. The amount will carry interest @ 7.5% per annum from the date of application till payment. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb