BY AD vs THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

BY ADV. SRI. S. JUSTUS RESPONDENTS/RESPONDENTS: 1 2 3 4 ARUN.A.S., S/O.SURENDRAN NAIR, T.C. 6/1298, KONATHUKULANGARA PUTHEN VEEDU, PTP WARD, VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM, PIN-695 013. (DRIVER OF THE TWO WHEELER (HONDA AVIATOR) BEARING REG.NO.KL-21-C-2687). MANIKANTAN, S/O.BHASKARAN NAIR, 1/340 IV BHAVAN, POOVACHAL, NEDUMANGADU, THIRUVANANTHAPURAM, PIN-695 575. (RC OWNER OF THE TWO WHEELER (HONDA AVIATOR) BEARING REG.NO.KL-21-C-2687). THE NEW INDIA INSURANCE CO.LTD., MTP CLAIMS HUB, GOVT. PRESS ROAD, PULIMOODU, THIRUVANANTHAPURAM, PIN-695 001. (INSURER OF THE TWO WHEELER (HONDA AVIATOR) BEARING REG.NO.KL-21-C-2687). THE UNITED INDIA INSURANCE COMPANY LIMITED, CWC BUILDING, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM, PIN-695 033. (INSURER OF TWO WHEELER (HONDA AVIATOR) BEARING REG.NO.KL-01-AX-9403). BY ADVS. R3 BY SRI. LAL K JOSEPH R4 BY SRI. S.PRASANTH SRI. SURESH SUKUMAR(K/634/1997) SRI. ANZIL SALIM(K/000447/2018) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

08.04.2025, THE COURT ON 09.04.2025 DELIVERED THE FOLLOWING: M.A.C.A. No. 2756/2021 : 2 : JOHNSON JOHN, J. --------------------------------------------------------- M.A.C.A No. 2756 of 2021 -------------------------------------------------------- Dated this the 9th day of April, 2025. JUDGMENT The petitioner in O.P.(MV) No. 1435 of 2016 on the file of the Motor Accident Claims Tribunal, Thiruvananthapuram filed this appeal seeking enhancement of compensation.

2. According to the petitioner, on 15.07.2015, while he was riding a scooter, another scooter ridden by the 1st respondent in a rash and negligent manner caused to hit the scooter ridden by the petitioner and thereby, he fell down and sustained serious injuries. The 2 nd respondent is the owner and the 3rd respondent is the insurer of the offending vehicle. The 4th respondent is the insurer of the scooter ridden by the petitioner.

3. Before the Tribunal, Exhibits A1 to A35 were marked from the side of the petitioner and no evidence adduced from the side of the respondents.

4. The Tribunal arrived at a finding that the accident occurred because of the negligence on the part of the 1st respondent and that M.A.C.A. No. 2756/2021 : 3 : respondents 1 to 3 are liable to pay compensation to the petitioner. The Tribunal awarded a total compensation of Rs.1,89,120/- to the petitioner.

5. Heard Sri. S. Justus, the learned counsel for the appellant, Sri.Lal K. Joseph, the learned counsel for the 3rd respondent insurance company and Sri. S. Prasanth, the learned counsel for the 4 th respondent.

6. The learned counsel for the appellant argued that the petitioner was aged 65 years and earning Rs.20,000/- per month from his occupation and the Tribunal fixed a notional income Rs.8,000/- per month for the reason that no evidence is adduced to prove the occupation and income.

7. The decision of the Hon'ble Supreme Court in Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236] and Syed Sadiq and Others v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735 = 2014 KHC 4027] shows that even in the absence of any evidence, the M.A.C.A. No. 2756/2021 : 4 : monthly income of an ordinary worker has to be fixed as Rs.4,500/- in respect of the accident occurred in the year 2004 and for the subsequent years, the monthly income could be reckoned by adding Rs.500/- each per year. If the monthly income of the appellant is calculated by adopting the above principle, it will come to Rs10,000/-, as the accident occurred in the year 2015. Therefore, I find that it is only reasonable to fix the monthly notional income of the appellant as Rs.10,000/- for the purpose of calculating the compensation.

8. The learned counsel for the appellant argued that a perusal of Exhibit A23, disability certificate, would show that the appellant is having 12% permanent disability and in spite of that, the Tribunal accepted only 5% functional disability and the same is on the lower side.

9. In Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], the Honourable Supreme Court summarised the principles for ascertainment of loss of earning capacity due to permanent disability as follows: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of M.A.C.A. No. 2756/2021 : 5 : earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability). (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 10. Considering the nature of injuries sustained, physical disability assessed in Exhibit A23, age and occupation of the appellant, I find that 10% functional disability can be accepted for the purpose of calculating the compensation towards physical disability and loss of earning power. When the compensation for physical disability and loss of earning power is calculated as per the revised criteria, the same would come to Rs.84,000/- [10,000 x 12 x 7 x 10/100]. The Tribunal has already granted Rs.33,600/- under this head. Therefore, the appellant is granted an additional compensation of Rs.50,400/- under this head.

11. The Tribunal has granted ‘loss of earnings’ for 5 months and when the same is calculated as per the revised notional income, the M.A.C.A. No. 2756/2021 : 6 : appellant is entitled for Rs.50,000/-. The Tribunal has already granted Rs.40,000/- under this head and therefore, an additional compensation of Rs.10,000/- is granted to the appellant towards ‘loss of earnings’.

12. The Tribunal has granted bystander's expenses for 5 days at the rate of Rs.300/- per day. Considering the facts and circumstances, I find that bystander's expenses for 10 days can be granted at the rate of Rs.400/- per day. The Tribunal has already granted Rs.1,500/- under this head and therefore, an additional compensation of Rs.2,500/- is granted to the appellant towards ‘bystander's expenses’.

13. The learned counsel for the appellant argued that the Tribunal has granted only Rs.50,000/- towards ‘pain and sufferings’ and only Rs.16,800/- towards ‘loss of amenities’ and the same are on the lower side. Considering the nature of injuries, period of treatment and disability, additional compensation of Rs.15,000/- each is granted to the appellant under the heads--‘pain and sufferings’ and ‘loss of amenities’. I find that the compensation granted by the Tribunal under all other heads are reasonable and requires no interference.

14. Accordingly, the appellant is entitled to the enhanced compensation as given below: M.A.C.A. No. 2756/2021 : 7 : Particulars Compensation awarded by Tribunal (Rs.) Additional amount granted by this Court (Rs.) Compensation for physical disability and loss of earning power Loss of earnings Bystander's expenses Pain and sufferings Loss of amenities Total enhanced compensation 33,600/- 40,000/- 1,500/- 50,000/- 16,800/- 50,400/- 10,000/- 2,500/- 15,000/- 15,000/- 92,900/-

15. Thus, a total amount of Rs.92,900/- (Rupees Ninety Two Thousand Nine Hundred only) is awarded as enhanced compensation. The said amount shall carry interest at the rate of 8% per annum from the date of the application till realization. The appellant would also be entitled to proportionate costs in the case. The claimant shall furnish the details of the bank account to the insurance company for transfer of the amount. The appeal is allowed as above. Rv sd/- JOHNSON JOHN, JUDGE.

BY ADV. SRI. S. JUSTUS RESPONDENTS/RESPONDENTS: 1 2 3 4 ARUN.A.S., S/O.SURENDRAN NAIR, T.C. 6/1298, KONATHUKULANGARA PUTHEN VEEDU, PTP WARD, VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM, PIN-695 013. (DRIVER OF THE TWO WHEELER (HONDA AVIATOR) BEARING REG.NO.KL-21-C-2687). MANIKANTAN, S/O.BHASKARAN NAIR, 1/340 IV BHAVAN, POOVACHAL, NEDUMANGADU, THIRUVANANTHAPURAM, PIN-695 575. (RC OWNER OF THE TWO WHEELER (HONDA AVIATOR) BEARING REG.NO.KL-21-C-2687). THE NEW INDIA INSURANCE CO.LTD., MTP CLAIMS HUB, GOVT. PRESS ROAD, PULIMOODU, THIRUVANANTHAPURAM, PIN-695 001. (INSURER OF THE TWO WHEELER (HONDA AVIATOR) BEARING REG.NO.KL-21-C-2687). THE UNITED INDIA INSURANCE COMPANY LIMITED, CWC BUILDING, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM, PIN-695 033. (INSURER OF TWO WHEELER (HONDA AVIATOR) BEARING REG.NO.KL-01-AX-9403). BY ADVS. R3 BY SRI. LAL K JOSEPH R4 BY SRI. S.PRASANTH SRI. SURESH SUKUMAR(K/634/1997) SRI. ANZIL SALIM(K/000447/2018) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

08.04.2025, THE COURT ON 09.04.2025 DELIVERED THE FOLLOWING: M.A.C.A. No. 2756/2021 : 2 : JOHNSON JOHN, J. --------------------------------------------------------- M.A.C.A No. 2756 of 2021 -------------------------------------------------------- Dated this the 9th day of April, 2025. JUDGMENT The petitioner in O.P.(MV) No. 1435 of 2016 on the file of the Motor Accident Claims Tribunal, Thiruvananthapuram filed this appeal seeking enhancement of compensation.

2. According to the petitioner, on 15.07.2015, while he was riding a scooter, another scooter ridden by the 1st respondent in a rash and negligent manner caused to hit the scooter ridden by the petitioner and thereby, he fell down and sustained serious injuries. The 2 nd respondent is the owner and the 3rd respondent is the insurer of the offending vehicle. The 4th respondent is the insurer of the scooter ridden by the petitioner.

3. Before the Tribunal, Exhibits A1 to A35 were marked from the side of the petitioner and no evidence adduced from the side of the respondents.

4. The Tribunal arrived at a finding that the accident occurred because of the negligence on the part of the 1st respondent and that M.A.C.A. No. 2756/2021 : 3 : respondents 1 to 3 are liable to pay compensation to the petitioner. The Tribunal awarded a total compensation of Rs.1,89,120/- to the petitioner.

5. Heard Sri. S. Justus, the learned counsel for the appellant, Sri.Lal K. Joseph, the learned counsel for the 3rd respondent insurance company and Sri. S. Prasanth, the learned counsel for the 4 th respondent.

6. The learned counsel for the appellant argued that the petitioner was aged 65 years and earning Rs.20,000/- per month from his occupation and the Tribunal fixed a notional income Rs.8,000/- per month for the reason that no evidence is adduced to prove the occupation and income.

7. The decision of the Hon'ble Supreme Court in Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236] and Syed Sadiq and Others v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735 = 2014 KHC 4027] shows that even in the absence of any evidence, the M.A.C.A. No. 2756/2021 : 4 : monthly income of an ordinary worker has to be fixed as Rs.4,500/- in respect of the accident occurred in the year 2004 and for the subsequent years, the monthly income could be reckoned by adding Rs.500/- each per year. If the monthly income of the appellant is calculated by adopting the above principle, it will come to Rs10,000/-, as the accident occurred in the year 2015. Therefore, I find that it is only reasonable to fix the monthly notional income of the appellant as Rs.10,000/- for the purpose of calculating the compensation.

8. The learned counsel for the appellant argued that a perusal of Exhibit A23, disability certificate, would show that the appellant is having 12% permanent disability and in spite of that, the Tribunal accepted only 5% functional disability and the same is on the lower side.

9. In Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], the Honourable Supreme Court summarised the principles for ascertainment of loss of earning capacity due to permanent disability as follows: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of M.A.C.A. No. 2756/2021 : 5 : earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability). (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 10. Considering the nature of injuries sustained, physical disability assessed in Exhibit A23, age and occupation of the appellant, I find that 10% functional disability can be accepted for the purpose of calculating the compensation towards physical disability and loss of earning power. When the compensation for physical disability and loss of earning power is calculated as per the revised criteria, the same would come to Rs.84,000/- [10,000 x 12 x 7 x 10/100]. The Tribunal has already granted Rs.33,600/- under this head. Therefore, the appellant is granted an additional compensation of Rs.50,400/- under this head.

11. The Tribunal has granted ‘loss of earnings’ for 5 months and when the same is calculated as per the revised notional income, the M.A.C.A. No. 2756/2021 : 6 : appellant is entitled for Rs.50,000/-. The Tribunal has already granted Rs.40,000/- under this head and therefore, an additional compensation of Rs.10,000/- is granted to the appellant towards ‘loss of earnings’.

12. The Tribunal has granted bystander's expenses for 5 days at the rate of Rs.300/- per day. Considering the facts and circumstances, I find that bystander's expenses for 10 days can be granted at the rate of Rs.400/- per day. The Tribunal has already granted Rs.1,500/- under this head and therefore, an additional compensation of Rs.2,500/- is granted to the appellant towards ‘bystander's expenses’.

13. The learned counsel for the appellant argued that the Tribunal has granted only Rs.50,000/- towards ‘pain and sufferings’ and only Rs.16,800/- towards ‘loss of amenities’ and the same are on the lower side. Considering the nature of injuries, period of treatment and disability, additional compensation of Rs.15,000/- each is granted to the appellant under the heads--‘pain and sufferings’ and ‘loss of amenities’. I find that the compensation granted by the Tribunal under all other heads are reasonable and requires no interference.

14. Accordingly, the appellant is entitled to the enhanced compensation as given below: M.A.C.A. No. 2756/2021 : 7 : Particulars Compensation awarded by Tribunal (Rs.) Additional amount granted by this Court (Rs.) Compensation for physical disability and loss of earning power Loss of earnings Bystander's expenses Pain and sufferings Loss of amenities Total enhanced compensation 33,600/- 40,000/- 1,500/- 50,000/- 16,800/- 50,400/- 10,000/- 2,500/- 15,000/- 15,000/- 92,900/-

15. Thus, a total amount of Rs.92,900/- (Rupees Ninety Two Thousand Nine Hundred only) is awarded as enhanced compensation. The said amount shall carry interest at the rate of 8% per annum from the date of the application till realization. The appellant would also be entitled to proportionate costs in the case. The claimant shall furnish the details of the bank account to the insurance company for transfer of the amount. The appeal is allowed as above. Rv sd/- JOHNSON JOHN, JUDGE.