Kerala High Court

Ajayakumar vs Purushothaman Nair on 4 April, 2025

MACA NO. 3326 OF 2014

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                                                      2025:KER:29968


             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
         THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
   FRIDAY, THE 4TH DAY OF APRIL 2025 / 14TH CHAITHRA, 1947
                       MACA NO. 3326 OF 2014
AGAINST THE AWARD DATED 25.09.2014 IN OPMV NO.1079 OF 2011 OF
             MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM

APPELLANT/PETITIONER :-

             AJAYAKUMAR
             REPRESENTED BY SURESHKUMAR,
             KAVIMALAPUTHENVEEDU,ERUMATTOOR POST, MALLAPPALLY,
             NOW RESIDING ATR EDAYENTHERATHE
             HOUSE,MARIYATHURUTHU POST, KOTTAYAM

             BY ADVS.
             SRI.MATHEW JOHN (K)
             SRI.DOMSON J.VATTAKUZHY


RESPONDENTS/RESPONDENTS :-

    1        PURUSHOTHAMAN NAIR
             RENJITH BHAVAN, PERUMPETTY POST,
             MALLAPPALLY 686 001.

    2        SURESHKUMAR.G
             KOMALATHU HOUSE, ,KODUMON POST, ADOOR,
             PATHANAMTHITTA 691 555

    3        THE ORIENTAL INSURANCE CO.LTD
             KOTTAYAM 686 001.

             BY ADV SRI.P.JACOB MATHEW


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 04.04.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 3326 OF 2014

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                                                                2025:KER:29968



                                  JUDGMENT

The petitioner in O.P.(M.V.) No.1079 of 2011 on the file of the

Motor Accident Claims Tribunal, Kottayam, is the appellant herein. (For the

purpose of convenience, the parties are hereafter referred to as per their rank

before the Tribunal).

2. The petitioner filed the above O.P. under Section 166 of the

Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in

a motor vehicle accident that occurred on 27.08.2010. According to the

petitioner, on 27.08.2010 at about 08.30 a.m., while he was riding a motorcycle

through Mallappally - Chelappally road, a car bearing Registration No.KL-

26/A-1861 driven by the 1st respondent in a rash and negligent manner knocked

him down. As a result of the accident, the petitioner sustained serious injuries.

3. The 2nd respondent is the owner and the 3rd respondent is the

insurer of the offending vehicle. According to the petitioner, the accident

occurred due to the negligence of the driver of the offending vehicle. The

quantum of compensation claimed in the O.P. is Rs.2,48,000/-.

4. The insurance company filed a written statement, admitting the

accident as well as policy, but disputing the negligence on the part of the driver MACA NO. 3326 OF 2014

2025:KER:29968

of the offending vehicle.

5. The evidence in the case consists of the documentary evidence

Exts.A1 to A7 and X1.

6. After evaluating the evidence on record, the Tribunal found

negligence on the part of the driver of the offending vehicle, awarded a total

compensation of Rs.2,19,700/-, which was limited to Rs.1,10,000/- owing to

50% contributory negligence on the part of the petitioner and directed the

insurer to pay the same.

7. Aggrieved by the quantum of compensation awarded by the

Tribunal, the petitioner preferred this appeal.

8. Now the point that arises for consideration is the following:

Whether the quantum of compensation awarded by the

Tribunal is just and reasonable?

9. Heard Sri.Mathew John, the learned Counsel appearing for the

petitioner/appellant, and Sri.P Jacob Mathew, the learned Senior Counsel for

the 3rd respondent.

10. The Point: In this case the accident as well as valid insurance

policy of the offending vehicle are admitted. One of the contentions raised by

the learned counsel for the petitioner is regarding the income of the petitioner MACA NO. 3326 OF 2014

2025:KER:29968

as fixed by the Tribunal. According to him, the petitioner was a plus two

student at the time of the accident. The Tribunal has fixed his notional income

at Rs.5,000/-. The learned counsel for the insurer would argue that the income

fixed by the tribunal is reasonable.

11. As per the dictum laid down by the Hon'ble Supreme Court in

the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Co. Ltd. [2011 (13) SCC 236], the notional income of a coolie, in

the year 2010 will come to Rs.7,500/-. In the decision in Mekala v. Malathi

M and Another [2014 (11) SCC 178], the Hon'ble Supreme Court has fixed

the notional income of a XIth standard student involved in a accident in the year

2005 at Rs.10,000/-. Considering the fact that, the petitioner was a plus two

student at the time of the accident, his notional income is fixed at Rs.10,000/-.

12. In the accident the petitioner sustained type III open supra

condylar, inter condylar fracture of right femur, lacerated wound of 10x6 cm

above the right knee.

13. As per Exhibit X1 disability certificate issued by the medical

board, the petitioner suffered 14% permanent physical disability. The Tribunal,

has accepted the permanent physical disability of the petitioner as such and

hence, I do not find any grounds to disbelieve the same. Therefore, the MACA NO. 3326 OF 2014

2025:KER:29968

permanent physical disability of the petitioner is accepted as 14%, as fixed by

the Tribunal.

14. On the date of accident, the petitioner was aged 17 years.

Therefore, 40% of the monthly income is to be added towards future prospects,

as held in the decision in National Insurance Co. Ltd v. Pranay Sethi [(2017)

16 SCC 680] and the multiplier to be applied is 18, as held in Sarla Verma v.

Delhi Transport Corporation, [(2009) 6 SCC 121]. In the above

circumstances, the loss of disability will come to Rs.4,23,360/-.

15. Towards loss of study, no amount was awarded by the Tribunal.

Considering the nature of the injuries sustained and the percentage of disability

suffered by the petitioner, the petitioner might have lost his study at least for a

period of 3 months. Therefore, towards 'loss of income' the petitioner is entitled

to get a sum of Rs.30,000/- (10,000 x 3 months).

16. Towards the head 'pain and sufferings', the Tribunal has

awarded Rs.30,000/. Towards 'loss of amenities of life' Rs.20,000/- was

awarded and towards 'extra nourishment' Rs.2,000/- was awarded. According to

the learned counsel for the petitioner, the compensation awarded on those

heads are on the lower side.

17. The petitioner sustained very serious injuries in the accident and MACA NO. 3326 OF 2014

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was treated as inpatient for 10 days. In the meantime, he had underwent surgery

also for open reduction and internal fixation. Because of the injuries sustained,

the percentage of disability suffered and the length of treatment undergone by

the petitioner, I hold that the compensation awarded by the Tribunal on the

heads 'pain and sufferings', 'loss of amenities of life' and 'extra nourishment'

are on the lower side and hence they are enhanced to Rs.50,000/-, Rs.30,000/-

and Rs.3,000/- respectively.

18. No change is required, in the amounts awarded on other heads,

as the compensation awarded on those heads appears to be just and reasonable.

19. Therefore, the petitioner/appellant is entitled to get a total

compensation of Rs.5,52,860/-, as modified and recalculated above and given

in the table below, for easy reference:

Sl.

      No.         Head of Claim     Amount awarded by    Amount Awarded in
                                     Tribunal (in Rs.)     Appeal (in Rs.)


       1    Transport to hospital             3,000            3,000

       2    Extra nourishment                 2,000            3,000



       4    Bystander expenses                3,000            3,000

       5    Medical expenses                  10,000          10,000
 MACA NO. 3326 OF 2014




                                                                   2025:KER:29968


       6   Pain and sufferings              30,000                 50,000

       7   Loss of amenities                20,000                 30,000

       8   Loss of earning capacity       1,51,200                 4,23,360

       9   Loss of study                     Nil                   30,000

           Total                          2,19,700                 5,52,860
                                        limited to
                                       Rs.1,10,000/-

           Enhanced to Rs.                             4,42,860/

20. The Tribunal has found 50% contributory negligence on the part

of the petitioner on the ground that at the time of the accident, he had no valid

driving licence. No other reasons were stated by the Tribunal for arriving at

such a conclusion. For the mere reason that the petitioner had no driving

licence at the time of the accident, it cannot be concluded that the accident

occurred due to the contributory negligence on the part of the petitioner.

Therefore, the above finding of the Tribunal that there was 50% contributory

negligence on the part of the petitioner is liable to be set aside. In other words,

the 3rd respondent/insurer is liable to pay the entire compensation awarded in

favour of the petitioner.

21. In the result, this Appeal is allowed in part, and the 3rd MACA NO. 3326 OF 2014

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respondent is directed to deposit a total sum of Rs.5,52,860/- (Rupees Five

Lakh Fifty Two Thousand Eight Hundred and Sixty only), less the amount

already deposited, if any, along with interest at the rate ordered by the

Tribunal), from the date of the petition till deposit/realisation, with

proportionate costs, within a period of two months from today. (Enhanced

compensation will carry interest @8%).