Kerala High Court

Radhakrishnan vs National Insurance Company Limited on 11 August, 2025

                                              2025:KER:60260

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MRS. JUSTICE C.S. SUDHA

  MONDAY, THE 11TH DAY OF AUGUST 2025 / 20TH SRAVANA, 1947

                   MACA NO. 489 OF 2020

     AGAINST THE AWARD DATED 06.07.2018 IN OPMV NO.239 OF

2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR

APPELLANT/PETITIONER:

         RADHAKRISHNAN
         AGED 50 YEARS
         S/O.SANKARAN KARTHA, KALLIKKAD PUNARTHAM HOUSE,
         MENON KAVALA, KODANAD P.O.

         BY ADV SRI.A.N.SANTHOSH
RESPONDENT/3RD RESPONDENT:

         NATIONAL INSURANCE COMPANY LIMITED
         MULLAPPALLY BUILDINGS, PERUMBAVOOR-683542,
         REPRESENTED BY ITS MANAGER.

         BY ADV SRI.MAJO K. JACOB


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 11.08.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                                            2025:KER:60260
MACA NO. 489 OF 2020

                                      2




                             C.S.SUDHA, J.
            ----------------------------------------------------
                      M.A.C.A. No.489 of 2020
            ----------------------------------------------------
               Dated this the 11th day of August 2025

                           JUDGMENT

This appeal has been filed under Section 173 of the Motor

Vehicles Act, 1988 (the Act) by the claim petitioner in O.P.(MV)

No.239/2015 on the file of the Motor Accidents Claims Tribunal,

Perumbavoor, (the Tribunal), aggrieved by the amount of

compensation granted by Award dated 06/07/2018. The sole

respondent herein is the third respondent/insurer in the petition. In

this appeal, the parties and documents will be referred to as

described in the original petition.

2. According to the claim petitioner, on 04/12/2014 at

about 08:00 a.m., while he was riding motorcycle bearing

registration no.KL-17/D-8556 through Vallom-Alattuchira road at

the place by name Thottuva, motorcycle bearing registration 2025:KER:60260 MACA NO. 489 OF 2020

no.KL-40/5525 ridden by the second respondent in a rash and

negligent manner collided with his motorcycle, as a result of which

he sustained grievous injuries. A sum of ₹20,00,000/- was

claimed as compensation under various heads.

3. The first respondent/owner and second respondent/rider

of the offending vehicle though entered appearance, did not file

written statement.

4. The third respondent/insurer filed 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. It was contended that the accident occurred due

to the negligence of the claim petitioner.

5. Before the Tribunal, no oral evidence was adduced by

either side. Exts.A1 to A16 and Ext.C1 were marked on the side of

the claim petitioner. No documentary evidence was adduced by the

third respondent/insurer.

6. The Tribunal on consideration of the documentary 2025:KER:60260 MACA NO. 489 OF 2020

evidence and after hearing both sides, found negligence on the part

of the second respondent/rider of the offending vehicle resulting in

the incident and hence awarded an amount of ₹8,73,340/- together

with interest @ 8% per annum from the date of the petition till

realisation along with proportionate costs. Aggrieved by the

Award, the claim petitioner 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 by the Tribunal under the

following heads is challenged by the claim petitioner -

Compensation for permanent disability post retirement

It is submitted by the learned counsel for the claim petitioner

that the latter, a Civil Police Officer, aged 46 years, was earning

₹35,000/- per month. Though there was no loss of income or pay

during the period that he was in service, the disabilities caused 2025:KER:60260 MACA NO. 489 OF 2020

would certainly affect his efficiency after his retirement. The

notional income that is taken by the Tribunal for computing the

loss of earning power after retirement as ₹7,000/- is quite low. He

submits that it is 50% of the monthly income that was liable to be

taken as notional income for computation of compensation for the

post retirement period. In support of the argument, he relies on the

dictum in Raju Sebastian v. United India Insurance Co. Ltd, [2021

(5) KHC 662. Per contra, it is submitted by the learned counsel for

the third respondent/insurer that the amount fixed by the Tribunal

is reasonable and that it does not call for any enhancement.

9.1. This court in MACA No.463/2020 has held that in the

light of the precedents, it is 50% of the monthly income that is to

be taken as the notional income for computation of loss of earnings

for the period after retirement. Hence, the notional income is liable

to be fixed at ₹17,500/- per month. Therefore, the amount to

which he would be entitled will be ₹7,56,000/-, that is, 2025:KER:60260 MACA NO. 489 OF 2020

17,500x12x9x40/100.

Pain and suffering

10. The materials on record show that following injuries

were sustained by the claim petitioner:

"1) crush injury right foot

2) avulsion incomplete amputation of 2nd, 3rd and 4th toes

3) multiple metatarsal fracture 2nd, 3rd and 4th disruption of MTP joints with loss of bone

4) loose bone

5) avulsion of skin flap"

The claim petitioner was hospitalized for a period of 34 days. In

the light of the injuries sustained, I find that an amount of

₹85,000/- under this head would be just and reasonable.

Loss of amenities

11. Though an amount of ₹10,00,000/- was claimed under

this head, the Tribunal has granted an amount of ₹45,000/- only,

which is also stated to be on the lower side.

2025:KER:60260 MACA NO. 489 OF 2020

11.1. Ext.A8 discharge summary reads thus:

"Final Diagnosis:

Crush injury ® foot.

Operation/Special procedures if any: Debridement, ALT Adipofacial flap covered with SSG.

Brief history and Clinical Notes: Alleged H/o RTA on 04/12/14.

Investigations:

O/E crush injury ® foot.

Avulsion incomplete amputation of 2nd, 3rd, 4th toes. Multiple metatarsal fracture 2, 3, 4th disruption of MTP joints with loss of bone.

Loose bone, Avulsion of skin flap.

Management details +Operation Notes: On 04/12/14, Wound debrided. Loose bone removed. Toes repositioned, avulsion skin flap repositioned. Lacerated wound over the sole repaired. Posterior IP slab given.

On 16/12/14, Free ALT Adipofacial flap cover done.

Flap artery to dorsalis pedis artery Flap veins to one VC and one superficial vein } EXE Flap pinked up and inset skin.

Small area of graft loss.

On 01/01/15, Area cut with SSG."

(Emphasis supplied) 2025:KER:60260 MACA NO. 489 OF 2020

As there has been partial amputation of the 2nd, 3rd, and 4th

toes, I find that an amount of ₹70,000/- under this head would be

just and reasonable.

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 earnings 20,00,000/- 1,16,392/- 1,16,392/-

(No Modification)

2. Partial loss of 5,00,000/- Nil Nil earnings (No Modification)

3. Transport to 2,00,000/- 12,000/- 12,000/-

      hospital                                         (No Modification)
 4.   Extra             3,00,000/-         16,000/-        16,000/-
      nourishment                                      (No Modification)
 5.   Medical           10,00,000/-       3,17,048/-      3,17,048/-
      expenses                                         (No Modification)
 6.   Pain & suffering 10,00,000/-         55,000/-        85,000/-

 7.   Loss of           10,00,000/-        45,000/-        70,000/-
      amenities etc.
 8.   Permanent         15,00,000/-       3,02,400/-      7,56,000/-
      disability                          (7,000 x12     (17,500 x12
                                          x9x40/100)     x9x40/100)
                                                           2025:KER:60260
MACA NO. 489 OF 2020





 9.   Attendance       5,00,000/-           8,500/-         8,500/-
      charge                                            (No Modification)
 10 Damage to           50,000/-            1,000/-         1,000/-
    clothes etc.                                        (No Modification)
 11 Future prospects 10,00,000/-              Nil            Nil
                                                        (No Modification)
 12 Disfiguration      10,00,000/-            Nil            Nil
    etc.                                                (No Modification)
 13 Loss of earning    5,00,000/-             Nil            Nil
    power                                               (No Modification)
      Total            1,08,50,000/-       8,73,340/-     13,81,940/-
                       limited to
                       20,00,000/-

In the result, the appeal is allowed by enhancing the

compensation by a further amount of ₹5,08,600/- (total

compensation = ₹13,81,940/- that is, ₹8,73,340/- granted by the

Tribunal plus ₹5,08,600/- granted in appeal) with interest at the

rate of 8% per annum from the date of petition till date of

realization (excluding the period of 432 days delay in filing the

appeal) 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 2025:KER:60260 MACA NO. 489 OF 2020

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.