Kerala High Court
The New India Assurance Co.Ltd vs Aswin Babu on 15 July, 2025
2025:KER:51400
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 15TH DAY OF JULY 2025 / 24TH ASHADHA, 1947
MACA NO. 74 OF 2020
AGAINST THE AWARD DATED 30.04.2019 IN OPMV NO.700 OF
2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA
APPELLANT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE CO.LTD.,
1ST FLOOR, THARIFF BAZAR,
OPP. TOWN HALL, TIRUR.
BY ADV SRI.LAL K.JOSEPH
RESPONDENT/PETITIONER:
ASWIN BABU,
S/O. SURESHBABU, RESIDING AT CHERUKUNNUMMAL HOUSE,
MUCHUKUNNU, P.O., KOYILANDI TALUK,
KOZHIKODE DISTRICT - 673307
BY ADV SRI.AVM.SALAHUDIN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 08.07.2025, ALONG WITH MACA.93/2020, THE COURT ON
15.07.2025 DELIVERED THE FOLLOWING:
2025:KER:51400
MACA NOS.74 & 93 OF 2020
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 15TH DAY OF JULY 2025 / 24TH ASHADHA, 1947
MACA NO. 93 OF 2020
AGAINST THE AWARD DATED 30.04.2019 IN OPMV NO.700 OF
2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA
APPELLANT/PETITIONER:
ASWINBABU,
AGED 33 YEARS
S/O.SURESHBABU, RESIDING AT CHERUKUNNUMMAL (H),
MUCHUKUNNU (PO), KOYILANDY TALUK,
KOZHIKODE (DT.) - 673 307.
SRI.AVM.SALAHUDIN
SMT.A.D.DIVYA
RESPONDENT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE COMPANY LTD.,
1ST FLOOR, THARIFF BAZAR, OPP. TOWN HALL, TIRUR
(POST) - 676 101, REPRESENTED BY BRANCH MANAGER.
BY ADV SRI.LAL K.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 08.07.2025, ALONG WITH MACA.74/2020, THE COURT
ON 15.07.2025 DELIVERED THE FOLLOWING:
2025:KER:51400
MACA NOS.74 & 93 OF 2020
3
C.S.SUDHA, J.
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M.A.C.A. Nos.74 & 93 of 2020
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Dated this the 15th day of July 2025
JUDGMENT
These appeals have been filed under Section 173 of the Motor Vehicles Act, 1988 (the Act) by the third respondent/insurer and the claim petitioner respectively in O.P.(MV) No.700 of 2014 on the file of the Motor Accidents Claims Tribunal, Vatakara, (the Tribunal), aggrieved by the amount of compensation granted by the Award dated 30/04/2019. The sole respondent in MACA No.74/2020 is the claim petitioner and the sole respondent in MACA No.93/2020, the third respondent/insurer in the petition. In these appeals, the parties and the documents will be referred to as described in the original petitions.
2. According to the claim petitioner, on 27/01/2013 at 10:30 a.m., while he was riding a motorcycle, car bearing registration no.KL523578 driven by the second respondent in a rash 2025:KER:51400 MACA NOS.74 & 93 OF 2020 4 and negligent manner knocked him down, as a result of which he sustained grievous injuries. A sum of ₹60,00,000/- was claimed as compensation under various heads.
3. The first respondent/owner and the second respondent/driver of the offending vehicle remained ex parte.
4. The third respondent/insurer filed written statement and additional written statement admitting the existence of a valid policy in respect of the offending vehicle but denied negligence on the part of the second respondent/driver. 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, PW1 was examined and Exts.A1 to A21 and Ext.C1 were marked on the side of the claim petitioner and Ext.B1 was marked on the side of the third respondent/insurer.
6. The Tribunal on consideration of the oral and documentary evidence and after hearing both sides, found negligence on the part of the second respondent/driver of the 2025:KER:51400 MACA NOS.74 & 93 OF 2020 5 offending vehicle resulting in the incident and hence awarded an amount of ₹61,55,700/- together with interest @ 9% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved by the Award, the third respondent/insurer and the claim petitioner have come up in appeals.
7. The only point that arises for consideration in these appeals is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court.
8. Heard both sides
9. It was submitted by the learned counsel for the third respondent/insurer that though a contention of contributory negligence on the part of the claim petitioner was taken up in the written statement, the same has not been considered in the correct perspective by the Tribunal. The claim petitioner did not have a valid driving licence at the time of the accident which would show that he was not having the necessary skills for riding a motorcycle and hence the Tribunal ought to have found that he had also 2025:KER:51400 MACA NOS.74 & 93 OF 2020 6 contributed to the accident in equal proportion, goes the argument.
9.1. Ext.A1 is the FIR and Ext.A2 (B1), the final report, in Crime no.116/2013, Koyilandy police station, alleging commission of offences punishable under Sections 279, 337 and 338 IPC. As per the final report, the accident occurred due to the rashness and negligence of the second respondent/driver of the car bearing registration no.KL523578. The Tribunal relying on the dictum in New India Assurance Company Ltd. v. Pazhaniammal, 2011 (3) KLT 648, held that the final report is prima facie evidence of negligence for the purpose of a claim under Section 166 of the Act; that once the final report/charge sheet is produced by the claim petitioner, the burden of proof shifts to the party who challenges the same and that it then becomes his responsibility to adduce evidence to disprove the final report. Neither the second respondent/driver nor the third respondent/insurer has adduced any evidence to disprove the final report and therefore the Tribunal concluded that the final report prima facie established the negligence of the second 2025:KER:51400 MACA NOS.74 & 93 OF 2020 7 respondent/driver and hence proceeded to conclude that his negligence and rashness resulted in the accident.
9.2. According to the learned counsel for the third respondent/insurer, the claim petitioner did not had a valid driving licence. Though such a contention was taken up by the third respondent/insurer in their written statement, no steps are seen taken before the Tribunal to direct the claim petitioner to produce his driving licence. The final report does not say that the claim petitioner did not have a driving licence at the relevant time. Now, even assuming for argument sake that the claim petitioner did not have a valid driving licence at the time of the accident, the same is no ground to hold that he was also negligent or to find contributory negligence on his part. It is well settled that for finding contributory negligence on the part of a person, there has to be materials on record to prove the same. In the case on hand, there are no materials on record to show that the claim petitioner was equally negligent or that he contributed to the accident. The mere absence of a driving 2025:KER:51400 MACA NOS.74 & 93 OF 2020 8 licence is no reason to assume or presume that the claim petitioner was also negligent and that he had contributed to the accident.
9.3. The claim petitioner offered himself as a witness and was examined before the Tribunal as PW1. In the proof affidavit filed in lieu of chief examination, he has stated that speeding by the second respondent/driver caused the accident. PW1 was never cross-examined by any of the respondents. When this aspect was pointed out, the learned counsel for the third respondent/insurer submitted that there is absolutely no necessity to cross-examine PW1 when the final report shows that he had no driving licence at the relevant time. Ext.A2 (B1), the final report, only says that the accused therein, that is, the second respondent/driver, has committed the offences punishable under Sections 279, 337 and 338 IPC. Therefore, the argument that the final report refers to the absence of driving licence of the claim petitioner is apparently incorrect. In the absence of any evidence to hold that the claim petitioner was negligent, it cannot be found that he had also 2025:KER:51400 MACA NOS.74 & 93 OF 2020 9 contributed to the accident as canvassed by the learned counsel for the third respondent/insurer. Therefore, I find that the Tribunal was justified in finding the second respondent/driver to be negligent which resulted in the accident based on Ext.A2 (B1) final report.
10. The award of compensation by the Tribunal under the following heads is challenged -
Pain and suffering and loss of amenities and enjoyment of life It was submitted by the learned counsel for the claim petitioner that the evidence on record clearly shows that the disability sustained by the claim petitioner due to the accident is 100%. That being the position, the compensation awarded under the heads 'pain and suffering' and 'loss of amenities and enjoyment of life' is quite low. In support of the argument, he relies on the dictums in Benson George v. Reliance General Insurance Co. Ltd., 2022 KHC 6232: (2022) 13 SCC 142; K.S. Muralidhar v. R.Subbulakshmi, 2025 AIR (SC) 70 and Ramshad P. v. Afsal, 2025 (1) KHC 575.
2025:KER:51400 MACA NOS.74 & 93 OF 2020 10 10.1. In Benson George (Supra), the accident occurred on 01/01/2013. The claim petitioner therein sustained grievous brain injuries. He also underwent a brain surgery. Pursuant to the accident, he fell into coma which continued even till the claim petition was filed. He was a 29 year old Process Supervisor in Deutsche Bank. Taking into account the fact that the claim petitioner was in coma and completely bedridden and also the fact that he had to undergo three major brain operations, an amount of ₹10,00,000/- each was awarded for pain and suffering and loss of amenities and enjoyment of life.
10.2. In K.S. Muralidhar (Supra), the accident occurred on 22/08/2008. The injuries sustained were to the extent of 90% permanent disability. The functional disability was assessed as 100%. The materials on record showed that the claim petitioner therein was wheel-chair bound with no movements in both lower limbs, minimal movements in bilateral upper limb proximally with wrist being very weak and grip was not possible. He had no urinary 2025:KER:51400 MACA NOS.74 & 93 OF 2020 11 control or sensation of bowels and he was on urinary catheter. He needed help for all his day-to-day activities. There was almost no chance of further improvement and the impairment was found likely to be permanent. The disability was fixed by the doctor as 85% to the whole body. In the light of the injuries suffered, the Tribunal and High Court assessed the disability as 100%. The amount awarded for pain and suffering was found to be low and so the Apex Court awarded an amount of ₹15,00,000/- towards pain and suffering.
10.3. In Ramshad P. (Supra), the accident occurred on 21/05/2017. The claim petitioner therein was a 20 year old who was also 100% disabled and bedridden. A Single Bench of this Court awarded an amount of ₹10,00,000/- each towards pain and suffering and loss of amenities.
10.4. In the case on hand, Ext.C1 reads thus:
"Medical Board constituted as per the order of the Hon'ble Motor Accidents Claims Tribunal, Vatakara in OP (MV) No.700/14.
2025:KER:51400 MACA NOS.74 & 93 OF 2020 12 We, the members of the Medical Board, Medical College Hospital, Thiruvananthapuram, have examined Sri. Aswin Babu, aged 32 years, S/o Suresh Babu residing at Cherukunnummal (H), Muchukunnu.P.O, Koyilandy, Kozhikode on 12.12.2018, and found him as a person with disability by reason of physical impairment due to;
1. Complete spinal cord injury - Paraplegia with Sensory loss below D7 and neurogenic bowel and bladder involvement.
Identification Marks:
1. Scar left temple
2. Brown mole forehead The following consultants in different specialties were included in the Medical Board and they have examined the patient to assess the disability and it has been found that the disability is permanent, the degree of disabilities have been found as 100% (Hundred percentage)." (Emphasis supplied) The Tribunal also fixed the disability at 100%. Ext.A9 discharge summary dated 16/08/2013 shows that the claim petitioner has no ability to stand and walk without support for six months; bowel and urinary incontinence and numbness of both lower limbs and inability to move both lower limbs and loss of 2025:KER:51400 MACA NOS.74 & 93 OF 2020 13 sensation.
10.5. The relevant portion of Ext.A8 discharge summary reads thus:
"xxxxxxxxxxxxx Discussion Mr. Aswin was admitted for rehabilitation of traumatic T7 paraplegia. His pelvic imaging showed right hip fracture subluxation. He was seen by Ortho II. Considering the chances of him walking after the hip surgery with the T7 paraplegia and the risks associated with hip fracture surgery like wound breakdown & infection, Heterotopic Ossification and the left ischial pressure ulcer predisposing to infection after surgery, it was decided not to operate on his right hip. He was advised to restrain from activities involving the right hip flexion, internal rotation and adduction to prevent the dislocation.
His gluteal ulcer was managed conservatively which healed completely at the time of discharge. MOBILITY He received physical therapy to improve his upper limb power and endurance. He was also taught range of movement exercises for both lower limbs, and was oriented to the vertical in a tilt table. Later he was made to stand with bilateral knee ankle foot orthosis within parallel bars and was taught to ambulate by hyperextending and hiking his hips. At discharge, he was 2025:KER:51400 MACA NOS.74 & 93 OF 2020 14 able to ambulate with bilateral knee ankle foot orthosis with in the parallel bars for therapeutic purpose.
He was given wheel chair training along with advanced skills and at discharge he was able to propel at a speed of 100 m/min with an endurance of 1000mts. He was also trained to do wheelie, negotiate ramps, stairs, rough terrain.
ACTIVITIES OF DAILY LIVING He received occupational therapy to maximize his independence in activities of daily living. He has good sitting balance, and fair standing balance with bilateral KAFOs and walker. He has adequate clearance and endurance in static and dynamic push ups. Functional independence measure at discharge:
Bed mobility 7 Coming up to sit 7 Feeding 7 Dressing, upper and lower halves 5 Grooming Brushing, combing, shaving 5 Toileting Urination- self intermittent catheterisation Bowel- self digital evacuation Donning and Doffing AFOS Long sitting 6 High sitting 6 Transfers with walker Direct 5 Pivot 5 Floor 5 Tricycle 5 Toilet stool 5 2025:KER:51400 MACA NOS.74 & 93 OF 2020 15 He has been advised regarding necessary (architectural) home modifications which he intends to do after going home.
BLADDER-BOWEL *Ultrasound upper tracts done on 10/5/13 showed minimal calyseal dilatations bilaterally. *Cystoscopy done on 11/6/13 showed features of cystitis. (He was treated with the culturte specific antibiotics for the same. There were no calculi. *Cystometrogram done on 11/6/13 showed a good compliance (on oxybutinin XL 5mg), areflexic bladder. He has sensation at 360ml of infusion. Voluntary voiding was not possible.
He was started on intermittent clean catheterization for neurogenic bladder management, which he could do independently and was continent.
He is trained to do digital stimulation and evacuation of stools for neurogenic bowel management.
He was given counseling about sexual functions. Tab Sildenafil and Tadalafil were tried with minimal erectile response. He was given inj. Papavarine with which desirable response was achieved. He was also trained to self administer the same. Possible side effects of papaverine injection were also explained to him. He has been counselled regarding the possibilities of him fathering children, and would seek review at the appropriate time.
VOCATION He intends to continue his PhD studies. He has been educated about the provisions in the Persons with Disability Act of India to enable him exercise his rights as needed and appropriate.
xxxxxxxxxxxx" (Emphasis supplied) It is apparent that the condition of the claim petitioner herein 2025:KER:51400 MACA NOS.74 & 93 OF 2020 16 is not like that of the claim petitioner in the dictums relied on and referred to herein above. However, the disability caused is also high. Hence, taking into account the facts and circumstances of this case, an amount of ₹7,00,000/- each towards 'pain and suffering' and 'loss of amenities and enjoyment of life' can be granted.
Attendant charge
11. It was submitted by the learned counsel for the claim petitioner that appropriate attendant charges must also be awarded. It was also submitted that for fixing the attendant charges, notional income must be fixed based on the Minimum Wages Act, 1948, and also that multiplier system should be adopted.
11.1. In the claim petition, no amount was claimed towards attendant charges. However, an amount of ₹1,00,000/- is seen awarded by the Tribunal. In Master Jyothis Raj Krishna @ Jyothi Krishna V. Sunny George, 2025 (1) KHC 348, a Single Bench of this Court held that fixing the attendant charges based on the 2025:KER:51400 MACA NOS.74 & 93 OF 2020 17 minimum wages prevailing in the State would not be advisable as the minimum wages in the State is the highest in the Country and so if compensation is fixed based on the same, the same was likely to go out of proportion. Therefore, the argument that attendant charges must be fixed based on the minimum wages prevailing cannot be accepted. However, taking into account the nature of injuries sustained and resultant disablement caused to the claim petitioner, I find that an amount of ₹10,00,000/- can be awarded, which can be deposited in fixed deposit and the interest accrued therefrom used for meeting the expenses under this head.
12. The impugned Award is modified to the following extent:
Sl. Head of claim Amount Amount Modified in No. claimed Awarded by appeal (in ₹) Tribunal(in ₹) (in ₹)
1. Loss of earning 45,00,000/- Nil Nil (No Modification)
2. Transport to 5,500/- 10,000/- 10,000/-
hospital (No Modification)
2025:KER:51400
MACA NOS.74 & 93 OF 2020
18
3. Extra 20,000/- 20,000/- 20,000/-
nourishment & (No Modification)
bystander's
expenses
4. Medical 3,95,853/- 4,33,903/- 4,33,903/-
expenses (No Modification)
5 Damge to 2,000/- 1,000/- 1,000/-
clothing and (No Modification)
articles
6 Pain & suffering 1,00,000/- 2,00,000/- 7,00,000/-
7 Loss of Nil 1,00,000/- 7,00,000/-
amenities and
enjoyment of life
8 Future treatment 50,000/- 50,000/- 50,000/-
(No Modification)
9 Permanent 9,00,000/- Nil Nil
disability (No Modification)
10 Loss of earning 9,00,000/- 51,40,800/- 51,40,800/-
power (No Modification)
11 Attendant charge Nil 1,00,000/- 10,00,000/-
12 Loss of Nil 1,00,000/- 1,00,000/-
enjoyment of (No Modification)
marriage life
Total 68,73,353/- 61,55,703/- 81,55,703/-
limited to rounded to
60,00,000/- 61,55,700/-
In the result, MACA No.74/2020 filed by the third respondent/insurer is dismissed and MACA No.93/2020 filed by the claim petitioner is allowed by enhancing the compensation by a 2025:KER:51400 MACA NOS.74 & 93 OF 2020 19 further amount of ₹20,00,003/- (total compensation ₹81,55,703/-, that is, ₹61,55,700/- granted by the Tribunal plus ₹20,00,003/-
granted in appeal) with interest at the rate of 8% per annum from the date of petition till date of realization and proportionate costs. The third respondent/insurer is directed to deposit the aforesaid amount before the Tribunal within a period of 60 days from the date of receipt of a copy of the judgment. On deposit of the amount, the Tribunal shall disburse the amount to the claim petitioner at the earliest in accordance with law after making deductions, if any.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE NP