Kerala High Court
Sudheer vs National Insurance Company Ltd., ... on 3 July, 2025
2025:KER:48730
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 3RD DAY OF JULY 2025 / 12TH ASHADHA, 1947
MACA NO. 257 OF 2020
AGAINST THE AWARD DATED 05.10.2019 IN OPMV NO.383 OF
2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM
APPELLANT/2ND RESPONDENT:
NATIONAL INSURANCE CO. LTD
KOLLAM, REP. BY THE MANAGER, KOCHI REGIONAL
OFFICE, M.G.ROD, ERNAKULAM, COCHIN-682035
BY ADV SRI.E.M.JOSEPH
RESPONDENT/PETITIONER:
SUDHEER
AGED 45 YEARS
S/O.DEVARAJAN, OMKARAM, PARANDAKULAM,
PUTHENKULAM, POOTHAKULAM, KOLLAM 691302
BY ADVS.
SRI.PRATHEESH.P
SMT.ANJANA KANNATH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 03.07.2025, ALONG WITH CO.30/2020, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:48730
MACA NO.257/2020 & CO NO.30/2020
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 3RD DAY OF JULY 2025 / 12TH ASHADHA, 1947
CO NO. 30 OF 2020
AGAINST MACA NO.257 OF 2020 OF HIGH COURT OF KERALA
CROSS OBJECTOR/RESPONDENT/CLAIMANT:
SUDHEER
AGED 45 YEARS
S/O.DEVARAJAN, OMKARAM, PARADAKULAM, PUTHENKULAM,
POOTHAKULAM, KOLLAM - 691302
BY ADVS.
SRI.PRATHEESH.P
SMT.S.SEETHA
RESPONDENT/APPELLANT/2ND RESPONDENT:
NATIONAL INSURANCE COMPANY LTD., KOLLAM
REPRESENTED BY THE MANAGER, KOCHI REGIONAL OFFICE,
M.G.ROAD, ERNAKULAM, COCHIN- 682035
BY ADV SRI.E.M.JOSEPH
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
HEARING ON 03.07.2025, ALONG WITH MACA.257/2020, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:48730
MACA NO.257/2020 & CO NO.30/2020
3
C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A. No.257 of 2020
&
Cross Objection No.30 of 2020
----------------------------------------------------
Dated this the 3rd day of July 2025
JUDGMENT
This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (the Act) by the second respondent/insurer in O.P.(MV) No.383/2016 on the file of the Motor Accidents Claims Tribunal, Kollam (the Tribunal), aggrieved by the Award dated 05/10/2019. The sole respondent herein is the claim petitioner in the petition. The claim petitioner has filed Cross Objection no.30 of 2020. In this appeal and cross objection, the parties and the documents will be referred to as described in the original petition.
2. According to the claim petitioner, on 03/12/2014 at 06:45 p.m., while he was standing on the northern side of Paravoor-Parippally public road near Puthenkulam Kalinkumukku Vayanasala, motorcycle bearing registration no.KL02AQR4977 2025:KER:48730 MACA NO.257/2020 & CO NO.30/2020 4 ridden by the first respondent in a rash and negligent manner knocked him down, as a result of which he sustained grievous injuries. A sum of ₹25,00,000/- was claimed as compensation under various heads.
3. The first respondent/owner-cum-rider remained ex parte.
4. The second respondent/insurer filed written statement admitting the policy but denied negligence on the part of the first respondent. The age, occupation and income of the claim petitioner were disputed. It was also contended that the compensation claimed was quite excessive.
5. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A26 and Ext.X1 were marked on the side of the claim petitioner. No documentary evidence was adduced by the second respondent/insurer.
6. The Tribunal on consideration of the documentary evidence and after hearing both sides, found negligence on the part 2025:KER:48730 MACA NO.257/2020 & CO NO.30/2020 5 of the first respondent/owner-cum-rider of the offending vehicle resulting in the incident and hence awarded an amount of ₹46,32,700/- together with interest @ 8% per annum from the date of the petition till realisation excluding interest for future treatment expenses along with proportionate costs. Aggrieved by the Award, the second respondent/insurer has come up in appeal.
7. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court.
8. Heard both sides
9. The Award of compensation under the following heads are challenged -
Notional income It is submitted by the learned counsel for the claim petitioner that the latter, being an autorickshaw driver, was earning an amount of ₹20,000/- per month. However, the Tribunal fixed the notional income at ₹13,000/- which is quite low going by the 2025:KER:48730 MACA NO.257/2020 & CO NO.30/2020 6 dictum in Manusha Sreekumar v. United India Insurance Company Ltd., (2022) 17 SCC 321: AIR 2022 SC 5161.
9.1. In Manusha Sreekumar (Supra), the deceased was a self employed man, who is described by the Apex Court as a person, who donned multiple hats so as to provide a comfortable living for his family. It was alleged that the deceased was a fish vendor-cum-driver earning at least ₹25,000/- per month. In support of the claim, various documentary evidence was produced to prove his financial capacity, which were- (i) course certificate showing that the deceased had completed two years course in electronic mechanic trade; (ii) a job training certificate at Sun Generic Cables Pvt. Ltd.; (iii) Passport of the deceased indicating that he was earlier employed in the Sultanate of Oman; (iv) a certificate to show that he was receiving rent from a shop in the Municipal Market shopping complex; (v) a job offer letter dated 11/12/2014 from the United Kingdom, offering the position of Telecom Rigger;
(vi) bank statements of the deceased and (vii) certificate of Kerala 2025:KER:48730 MACA NO.257/2020 & CO NO.30/2020 7 Motor Transport Workers' Welfare Fund Board. The Tribunal fixed the notional income at ₹17,500/- per month (₹14,000/- + ₹3,500/- rent). The High Court relying on the dictum in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd, (2011) 13 SCC 236, fixed the monthly income at ₹10,000/-. One of the issues that was considered by the Apex Court was whether the High Court was right in reducing the income from ₹17,500/- to ₹10,000/- on the ground of want of sufficient documentary evidence. From the evidence on record, the Apex Court found that it was undoubtedly established that the deceased was a fish vendor cum driver with a valid license. The certificate issued by the Kerala Motor Transport Workers' Welfare Fund Board certified that the deceased was a driver of light motor goods vehicle. It was also found that he had also paid all his subscriptions to the Board without fail. In the light of the evidence produced, the notional income of the deceased was fixed at ₹15,600/-.
9.2. In the case on hand, apart from Ext.A21, the 2025:KER:48730 MACA NO.257/2020 & CO NO.30/2020 8 driving licence, there are no other materials on record. Hence, the notional income can be fixed at ₹14,000/- which would be just and reasonable in the facts and circumstances of the case. Percentage of disability and compensation for permanent disability
10. It is submitted by the learned counsel for the second respondent/insurer that when Ext.X1 disability certificate says that the permanent disability is 24%, the Tribunal was totally unjustified in fixing the disability at 80% and adopting the multiplier system for computing compensation for loss of earnings. Per contra, it is submitted by the learned counsel for the claim petitioner that in the light of the injuries sustained, the Tribunal was justified in fixing the disability as 80%. He also draws my attention to the disability certificate dated 18/01/2025 that has been submitted pursuant to order dated 19/12/2024 of this Court as per which the claim petitioner was referred to the Medical Board constituted by the Medical College Hospital, Thiruvananthapuram.
2025:KER:48730 MACA NO.257/2020 & CO NO.30/2020 9 The same is marked as Ext.X2.
11.1. Ext.X1 disability certificate dated 10/10/2018 reads thus:
"This Certificate is issued as per direction from the Honorable Court of MACT Kollam. O.P (M.V) No.383/2016, Sudheer.D 45 years, Ohmkaram, Poothakulam, Poothakulam P.O, was admitted in Medical College Hospital, Thiruvananthapuram on 4/12/14 with IP No.78886/14 following an alleged road traffic accident. He sustained fracture of shaft of right femur and type III compound comminuted fracture of both bones of right leg. He was treated by open interlocking nailing of right femur, and external fixator of right leg on 4/12/14. Skin grafting done on right leg on 15/12/14. He was discharged on 31/12/14. He was admitted in Medical Gastroenterology department on 18/2/15 with IP No.96918/15 for viral hepatitis and discharged on 25/2/15 He was again admitted on 8/4/15 with IP No.107627/15 with non-union of fracture of both bones of right leg. He was treated by open nailing and fibulectomy and bone grafting on 16/4/15. He was discharged on 21/4/15. He was admitted in Government Medical College Hospital, Parippally, Kollam on 3/9/18 with IP No.19521/18 with nonunion of femur. He was treated by removal of implants from femur and tibia and double plating of femur and bone grafting and discharged on 17/9/18.
At the time of examination on 10/10/18 he has the following features. Scars on right thigh and right leg.
2025:KER:48730 MACA NO.257/2020 & CO NO.30/2020 10 Plates and screws in situ in right femur.
Skin grafting-on right leg. Flexion of right knee limited to 100 degrees. Shortening of 3cm of right lower limb. Wasting of 1cm of right thigh muscles, and 1cm of right calf muscles. Dorsiflexion of right ankle limited by 5 degrees. Sensory dulling on right big toe, and over right lateral aspect of thigh.
Bone graft donor site over both iliac crests. Sensory dulling over left thigh Patient walks with limp.
Not able to squat Not able to walk fast.
Difficulty in climbing stairs and getting downstairs. Difficulty in carrying weight Difficulty in driving vehicle The disability is assessed as below:
1.Pain and mental trauma
2. Temporary disability of 100% for a period of Nine months from date of injury.
3.Permanent disability of 24% (Twenty four percent) as per Mc. Bride's scale." (Emphasis Supplied) 11.2. Ext.X2 disability certificate dated 18.01.2025 reads thus:
"We the members of the Medical Board Medical College Hospital, Thiruvananthapuram, have examined 2025:KER:48730 MACA NO.257/2020 & CO NO.30/2020 11 Sri.Sudheer aged 51 years, residing at Omkaram, Poarandakulam, Puthenkulam, Poothakulam, Kollam on 18/01/2025 and found him as a person with disability by reason of physical impairment due to Fracture shaft of femur and both bone right with post traumatic stiffness.
The disability is permanent in nature and degree of disability having been found as 38% (Thirty eight percentage only) as per the guidelines for the purpose of assesssing the extent of specified disability in a person included under the Rights of persons with disabilities Act, 2016, Government of India Gazette 2024."
As per Ext.X1, the temporary disability was assessed as 100% for a period of 9 months from the date of injury. The permanent disability has been assessed as 24% whereas in Ext.X2 disability certificate, the disability is stated to be 38%. In the light of the difficulties caused to the claim petitioner due to the injuries sustained in the accident as is evident from Ext.X1 and taking into account the avocation of the claim petitioner, I find that the functional disability can be fixed as 50%. As the functional disability is fixed as 50%, 40% of the income is liable to be added 2025:KER:48730 MACA NO.257/2020 & CO NO.30/2020 12 towards loss of future prospects.
Loss of earnings
13. The learned counsel for the second respondent/insurer submitted that in the light of Ext.X1, the Tribunal was wholly unjustified in adopting the multiplier system for computing compensation under the said head.
13.1. The multiplier system is normally adopted in extreme cases where the claimant is in a vegetative state or wheelchair bound or completely bedridden. In the case on record, there is no such evidence regarding the claim petitioner herein. However, taking into account the injuries sustained by him and the resultant disabilities caused, in all probability, he might have been unable to work for a period of 18 months. This period of 18 months is fixed by taking into account Ext.X1 which says that the temporary disability would be 100% for a period of 9 months from the date of injury. Therefore, he would be entitled to an amount of ₹2,52,000/- (14,000 x 18 months).
2025:KER:48730 MACA NO.257/2020 & CO NO.30/2020 13
14. The impugned Award is modified to the following extent:
Sl. Head of claim Amount Amount Modified in No. claimed Awarded appeal (in ₹) by Tribunal (in ₹) (in ₹) 1 Loss of earnings 2,00,000/- 21,84,000/- 2,52,000/-
(14,000 x 18)
2 Partial loss of Nil Nil Nil
earning (No Modification)
3 Transport to 20,000/- 50,000/- 50,000/-
hospital (No Modification)
4 Extra nourishment 10,000/- 40,000/- 40,000/-
(No Modification)
5 Damages to 2,000/- 3,500/- 3,500/-
clothing and (No Modification)
articles
6 Medicine and 2,00,000/- 1,08,000/- 1,08,000/-
treatment (No Modification)
Bystanders Nil 90,000/- 90,000/-
expenses (No Modification)
Salary 25,000/- Nil Nil
(No Modification)
7 Compensation for 2,00,000/- 1,50,000/- 1,50,000/-
pain and suffering (No Modification)
Compensation for 2,00,000/- 17,47,200/- 16,46,400/-
continuing or (13,000 x [(14,000+40% of
permanent 12 x 14 x 14,000) x 12 x 14
disability if any 80/100) x 50/100)
2025:KER:48730
MACA NO.257/2020 & CO NO.30/2020
14
Compensation for 14,65,000/- 2,00,000/-
loss of earning 2,00,000/-
power and loss of (No Modification)
amenities
8 Compensation for Nil 60,000/- 60,000/-
future treatment (No Modification)
Total 25,00,000/- 46,32,700/- 25,99,900/-
In the result, the appeal and cross objection are disposed of by deducting the compensation awarded by an amount of ₹20,32,800/- (total compensation ₹25,99,900/-, that is, ₹46,32,700/- granted by the Tribunal minus ₹20,32,800/- deducted in appeal).
Interlocutory applications, if any pending, shall stand closed.
Sd/--
C.S.SUDHA JUDGE NP