Kerala High Court
Muhammed Shan vs The Branch Manager, New India Assurance ... on 4 August, 2025
2025:KER:57204
MACA Nos.2949 & 3801 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 4TH DAY OF AUGUST 2025 / 13TH SRAVANA, 1947
MACA NO. 2949 OF 2018
OPMV NO.1187 OF 2013 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
PATHANAMTHITTA
APPELLANT/PETITIONER:
MUHAMMED SHAN
AGED 21 YEARS
S/O SHAMSUDEEN, THOPPIL HOUSE, PALLISSERIKKAL,
SASTHAMCOTTA
BY ADV SHRI.A.N.SANTHOSH
RESPONDENT/3RD RESPONDENT:
THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD.,
KUNNITHOTTATHIL TOWERS, ST. PETERS JUNCTION, RING ROAD,
PATHANAMTHITTA-689645
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SHRI.P.JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 23.07.2025 ALONG WITH MACA.3801/2018, THE COURT ON 04.08.2025
DELIVERED THE FOLLOWING:
2025:KER:57204
MACA Nos.2949 & 3801 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 4TH DAY OF AUGUST 2025 / 13TH SRAVANA, 1947
MACA NO. 3801 OF 2018
OPMV NO.1187 OF 2013 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
PATHANAMTHITTA
APPELLANT/2ND RESPONDENT:
NEW INDIA ASSURANCE COMPANY LTD., KUNNITHOTTATHIL
TOWERS, ST. PETERS JUNCTION, RING ROAD, PATHANAMTHITTA
REP BY ITS MANAGER, REGIONAL OFFICE, KOCHI - 682 011.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SHRI.P.JACOB MATHEW
RESPONDENTS/PETITIONER, RESPONDENTS 1 & 2:
1 MOHAMED SHAN, AGED 26 YEARS
S/O. SHAMSUDEEN, THOPPIL, PALLISSERIKAL, SASTHAMKOTA,
PIN - 690520.
2 NAWAS, S/O. SULAIMAN KUNJU, POKKATTUVADAKKETHIL,
EDAVANSSERIL, MYNAGAPPALLY POST, KOLLAM, PIN - 691001.
3 ASUMABEEVI,
W/O. JAMALUDEEN KUNJU, MUTTATHU KIZHAKKETHIL,
EDAVASSERIL, MYNAGAPPALLY POST, KOLLAM, PIN - 691 001.
BY ADV SHRI.A.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 23.07.2025, ALONG WITH MACA.2949/2018, THE COURT ON 04.08.2025
DELIVERED THE FOLLOWING:
2025:KER:57204
MACA Nos.2949 & 3801 of 2018
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JUDGMENT
These appeals arose from the impugned award dated 19.06.2018 in OP(MV) No.1187 of 2013 on the files of the Additional Motor Accidents Claims Tribunal, Pathanamthitta. MACA No. 3801 of 2018 is filed by the third respondent insurer disputing the alleged accident and the quantum of compensation awarded by the tribunal, whereas MACA No.2949 of 2018 is filed by the claimant dissatisfied with the quantum of compensation awarded by the tribunal.
2. Since the parties and the cause of action are the same, the appeals are heard together and are being disposed of by this judgment. For brevity, the parties are referred to as they are arrayed before the tribunal.
3. The case of the claimant was that on 14.04.2013, while he was riding a bicycle, a motorcycle bearing Reg.No.KL/61-6568 ridden by the first respondent in a rash and negligent manner hit the bicycle, whereby he sustained serious injuries. He approached the tribunal claiming a total compensation of ₹20,22,000/-.
4. Respondents 1 & 2, who are the rider & owner of the offending vehicle respectively, did not file any written statement before 2025:KER:57204 MACA Nos.2949 & 3801 of 2018 ..4..
the tribunal. The third respondent insurer filed a written statement, admitting the policy coverage for the offending vehicle, but disputing the occurrence of accident, liability and the quantum of compensation claimed. Before the tribunal, Exts.A1 to A20 were marked on the side of the claimant. Ext.B1 was marked on the side of the insurer. RW1 & RW2 were examined. The tribunal, after analysing the pleadings and materials on record, held that the accident took place on account of the negligence of the rider of the offending vehicle and awarded a sum of ₹10,05,626/- as compensation under different heads with interest @ 9% per annum from the date of petition till realization, against the third respondent being the insurer. Challenging the impugned award, the claimant as well as the insurer has come up in appeal.
5. I have heard the learned Standing Counsel for the insurer and the learned counsel for the claimant.
6. The learned Standing Counsel for the insurer submitted that the accident was not by the hitting of bicycle on the motorcycle insured with the insurer, but the motorcycle hit on an electric post as stated by the mother of the claimant. It is further submitted that the insurer had filed a list of witnesses to prove that the accident narrated by the claimant is false, however, the tribunal did not afford sufficient opportunity to the insurer to adduce evidence and 2025:KER:57204 MACA Nos.2949 & 3801 of 2018 ..5..
closed evidence in a hasty manner. The learned Standing Counsel pointed out that RW1/doctor, who treated the claimant, deposed that the claimant came with a history of hitting a bicycle on an electric post. Further, it was argued that though the accident occurred on 14.04.2013, the FIR was registered only on 23.11.2013, i.e., seven months after the accident, on the basis of a private complaint filed before the Judicial First Class Magistrate Court, Adoor. The learned Standing Counsel relied on Ext.A15 to prove the cause of the accident, wherein it is stated, "Alleged h/o RTA (bike hit on post) on 14.4.2013 as narrated by the patient's mother". It is also the case of the insurer that the quantum of compensation awarded by the tribunal is excessive.
7. Per contra, the learned counsel for the claimant submitted that sufficient opportunity was granted to the insurer to adduce evidence. It is pointed out that in Ext.A3 Accident Register-cum- Wound Certificate dated 14.04.2013 issued from Sankar Shashtyabdapoorthi Memorial Hospital, Kollam, the alleged cause of injuries is shown as, "സ ക ളൽ ഞര കമ ൾ സ ക ടച വണ." According to the learned counsel, in all other documents except Ext.A3, the incident is stated as a road traffic accident. The learned counsel also drew the attention of this Court to the proceedings sheet of the tribunal, and submitted that sufficient opportunity had been granted to the 2025:KER:57204 MACA Nos.2949 & 3801 of 2018 ..6..
insurer to adduce evidence and in spite of affording sufficient opportunity, the insurer examined only RW1 and RW2, the doctors who treated the claimant. It is further submitted that the charge sheet was also drawn against the rider of the motorcycle, which was not challenged by the insurer, wherein the accident is proved. It is further submitted that in the written statement filed by the insurer, they had admitted that the accident occurred due to the hit of the bicycle against the motorcycle bearing Reg.No.KL/61-6568, wherein they pleaded negligence on the part of the bicyclist, not the rider of the motorcycle. According to the learned counsel for the claimant, the tribunal has rightly found that the accident was due to the rash and negligent riding of the motorcyclist and awarded compensation. The learned counsel for the claimant also sought enhancement of compensation awarded by the tribunal.
8. I have considered the rival contentions raised on both sides. According to the insurer, the accident was not as narrated by the claimant, but was a hit of the motorcycle on an electric post. In Ext.A3 Accident Register-cum-Wound Certificate dated 14.04.2013, the history and the cause of injuries is stated as, while the claimant was riding the bicycle, he fell down hitting the motorcycle. A charge sheet was also drawn against the rider of the motorcycle for rash and negligent riding.
2025:KER:57204 MACA Nos.2949 & 3801 of 2018 ..7..
It is true that there was a delay of almost seven months in registering a case against the rider of the motorcycle. But, admittedly, the registration of the case was pursuant to a private complaint before the Judicial First Class Magistrate Court, Adoor. The insurer is now challenging the alleged accident solely relying on Ext.A15 case record issued from the Dental College, Thiruvananthapuram, wherein it is noted as, "Alleged h/o RTA (bike hit on post) on 14.4.2013 as narrated by the patient's mother". Ext.A15 is dated 18.06.2013, i.e., after two months of the alleged accident. However, in Ext.A3 Accident Register- cum-Wound Certificate dated 14.04.2013, i.e., the date on which the accident occurred, the history and alleged cause of injuries is stated as the bicycle hit against the motorcycle. As regards the case of the insurer that sufficient opportunity was not afforded to them to adduce evidence though a witness list was filed, it is worth to extract the relevant portion of the B diary of the tribunal as follows:
27.10.2017 : The petitioner has produced 20 documents. Ext.A1 to A20 were marked. Petitioner's evidence closed. For respondents evidence and hearing to 15.11.2017 15.11.2017 : For respondents evidence and hearing to 12.12.2017 12.12.2017 : Respondents have no evidence. For hearing adjourned to 20.12.2017 20.12.2017 : For hearing to 04.01.2018 2025:KER:57204 MACA Nos.2949 & 3801 of 2018 ..8..
04.01.2018 : Petitioner was heard. For further hearing to 08.01.2018 08.01.2018 : For further hearing if any to 23.01.2018 23.01.2018 : Petitioner filed objection to IA.No.119/18. For hearing IA and further hearing of OP adjourned to 30.01.2018 30.01.2018 : IA No.119/18 filed by R3 is allowed. Evidence re-
opened. For evidence to 3.2.18 03.02.2018 : For evidence (No further time) to 21.2.2018 21.02.2018 : For evidence to 22.3.2018 22.03.2018 : R3 is filing witness schedule. Take steps. For examination of witness. Adjourned to 23.04.2018 23.04.2018 : Doctor is examined as RW1. The other witnesses present and prayed for time for producing documents because now only two documents are available. The documents returned. Witness is directed to produce all the documents together. SHO not present. Take steps against the SHO for the production of documents. Adjourned to 23.05.2018 23.05.2018 : The witness produced documents. The learned counsel of the insurance company and petitioner are permitted to verify the documents. For the examination of witness, if any, adjourned to 12.06.2018. The adjourned date is informed to the Superintendent through the person who has produced the documents. Call on 12.06.2018 12.06.2018 : The Superintendent Medical Mission, Kollam is examined as RW2 and the wound certificate is marked as Exi. B1. The insurance company has not taken steps so far. Sufficient time has been given. Evidence closed. The Sheristhadar, District Court is directed to take a photocopy of the wound certificate of Mohammed Shane, Serial No.7070 dated 14.04.2013 who is the petitioner in this case 2025:KER:57204 MACA Nos.2949 & 3801 of 2018 ..9..
and compare it with the book produced herein and get it attested for marking the wound certificate as Ext.B1. Return all the wound certificate books produced from the said hospital after getting proper acknowledgment and also return the documents produced from the SHO, Enathu Police Station in Crime No.1013/2013 after getting proper acknowledgment. Both sides were heard. For orders to 18.6.2018.
18.06.2018 : For orders to 19.06.2018 19.06.2018 : Petitioner is entitled to get Rs.10,05,626/- with cost of Rs.52,680/- vide separate order.
9. A perusal of the B diary reveals that the tribunal had granted sufficient opportunity to the insurer for adducing evidence. On 12.12.2017, noting that the respondents had no evidence, the evidence was closed and the case was adjourned for hearing. Thereafter, the evidence was re-opened on 30.01.2018 and the insurer was granted time from 30.01.2018 to 12.06.2018. On 12.06.2018, the evidence was closed noting that the insurance company had not taken steps so far. So, the allegation of the insurer that they were not afforded sufficient opportunity to adduce evidence is without any basis. The accident occurred in 2013 and almost 12 years have elapsed after the accident. As revealed from B diary, the insurer failed to examine the officers in the witness list other than RW1 and RW2. Hence, I do not find any reason to allow the request of the insurer to afford them a further opportunity to adduce evidence and I decline to interfere with the 2025:KER:57204 MACA Nos.2949 & 3801 of 2018 ..10..
finding of the tribunal that the accident occurred due to the rash and negligent riding of the motorcyclist.
10. Though the insurer challenged the quantum of compensation awarded by the tribunal as well, on a perusal of the records available and the impugned award, I am of the opinion that the compensation awarded by the tribunal under different heads is not sufficient enough. Accordingly, I hold that the insurer is not entitled to get any relief prayed for in appeal.
11. The learned counsel for the claimant claims enhancement under the following heads:
11.1. Notional income - The learned counsel for the claimant submitted that he was a fish vendor and was earning ₹25,000/- per month, however, the tribunal has fixed the monthly income notionally only at ₹7,000/-. Even going by the judgment in Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the monthly income of the claimant ought to have been fixed at ₹9,000/-. Accordingly, following the judgment in Ramachandrappa (supra), I deem it appropriate to refix the monthly income of the claimant at ₹9,000/-.
11.2. Loss of earnings - Since the monthly income of the 2025:KER:57204 MACA Nos.2949 & 3801 of 2018 ..11..
claimant is refixed at ₹9,000/-, compensation towards loss of earnings for a period of six months has to be recalculated, which would come to ₹54,000/-. Thus, the claimant will be entitled to get an additional compensation of ₹12,000/- towards loss of earnings.
11.3. Pain and suffering - The learned counsel for the claimant submitted that though an amount of ₹4,00,000/- was claimed towards pain and suffering, the tribunal awarded only ₹50,000/-. The claimant sustained grievous injuries and multiple fractures including severe head injuries, fracture patella left and multiple fracture of facial skeleton. Considering the injuries sustained by him and the sufferings that he had undergone, I am inclined to grant an amount of ₹75,000/- to the claimant as total compensation towards pain and suffering. Thus, the claimant will be entitled to get an additional amount of ₹25,000/- as compensation towards pain and suffering.
11.4. Loss of amenities - The learned counsel for the claimant submitted that the tribunal awarded only ₹40,000/- towards loss of amenities, which is on the lower side. While considering the gravity of the injuries, the ordeal underwent by the claimant and the disability sustained in the accident have to be considered together and as such, I deem it appropriate to award a total compensation of ₹60,000/- towards loss of amenities. Thus, the claimant will be entitled to get an additional 2025:KER:57204 MACA Nos.2949 & 3801 of 2018 ..12..
amount of ₹20,000/- towards loss of amenities.
11.5. Permanent disability - Since the monthly income of the claimant is refixed at ₹9,000/-, compensation towards permanent disability has to be recalculated. Since the claimant was 21 years at the time of the accident and he sustained 40% disability, after adding 40% future prospects to the refixed income, the amount would be ₹12,600/- (9000 + 3600). Accordingly, following the judgments in National Insurance Co. Ltd. v. Pranay Sethi [2017(4) KLT 662(SC)] and Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802(SC)], the claimant will be entitled to get a total compensation of ₹10,88,640/- (12600 x 12 x 18 x 40%) towards permanent disability. Since the tribunal already awarded ₹4,53,600/- for visual disability and ₹1,51,200/- for motor disability, totalling to ₹6,04,800/-, there will be an additional amount of ₹4,83,840/- under the head of permanent disability.
11.6. Extra nourishment - The learned counsel for the claimant submitted that the tribunal awarded only ₹3,000/- for extra nourishment, which is on the lower side. It is seen that the claimant had undergone 41 days inpatient treatment. Considering the fact that the accident was in the year 2013, I deem it appropriate to award a compensation of ₹250/- per day towards extra nourishment. Accordingly, he will be entitled to get a total compensation of ₹10,250/- (250 x 41) 2025:KER:57204 MACA Nos.2949 & 3801 of 2018 ..13..
towards extra nourishment. Thus, there will be an additional compensation of ₹7,250/- under this head.
12. Though the claimant claimed enhancement of compensation under other heads as well, on a perusal of the records available and the impugned award, I am not inclined to interfere with the same since it appears to be just and reasonable. Thus, the impugned award of the tribunal is modified as follows:
Sl.
No. Head of Claim Amount Amount Modified Total
claimed awarded in appeal compensation
(in ₹) by the (in ₹) (in ₹)
tribunal
(in ₹)
1. Loss of earnings 250000 42000 12000 54000
2. Transportation 25000 10000 - 10000
expenses
3. Extra nourishment 20000 3000 7250 10250
4. Damage to 2000 2000 - 2000
clothing
5. Medical expenses 300000 241876 - 241876
6. Bystander 25000 12000 - 12000
expenses
7. Pain and 400000 50000 25000 75000
sufferings
8. Permanent
disability: 1000000 483840 1088640
Visual disability 453600
Motor disability
151200
9. Loss of amenities 40000 20000 60000
Total *1005676 548090 1553766
*Wrongly calculated by the tribunal as
₹10,05,626/-
2025:KER:57204
MACA Nos.2949 & 3801 of 2018
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Accordingly, the following orders are issued:
a) MACA No. 3801 of 2018 is dismissed.
b) MACA No. 2949 of 2018 is allowed in part and the claimant is awarded an additional compensation of ₹5,48,090/- (Rupees five lakh forty eight thousand and ninety only) over and above the compensation awarded by the tribunal with interest @ 8% per annum from the date of petition till realization and proportionate costs. The insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimant shall furnish copies of the PAN Card, AADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the claimant at the earliest in accordance with law.
SD/-
SHOBA ANNAMMA EAPEN JUDGE bka/-