Kerala High Court
Santhish Kumar vs Vipin Kumar on 18 August, 2025
M.A.C.A. No.353 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 18TH DAY OF AUGUST 2025 / 27TH SRAVANA, 1947
MACA NO. 353 OF 2020
AGAINST THE AWARD DATED 16.11.2019 IN OP(MV)NO.1079 OF
2015 ON THE FILE OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS
TRIBUNAL-II, MAVELIKARA.
APPELLANT/PETITIONER:
SANTHISH KUMAR,
AGED 40 YEARS,
S/O.SASIDHARAN, SREEKRISHNA BHAVAN, UMBERNAD,
KALLUMALA, MAVELIKARA, ALAPPUZHA - 690 107.
BY ADVS.
SHRI.M.V.THAMBAN
SRI.R.REJI
SMT.THARA THAMBAN
SRI.B.BIPIN
SRI.ARUN BOSE
SMT.RENI JAMES
RESPONDENTS/RESPONDENTS:
1 VIPIN KUMAR,
AGED 34, S/O.VIJAYAN, KALACKATTU VADAKKATHIL
(KILACKATTU VADAKKATHIL), EREZHA SOUTH P.O.,
CHETTIKULANGARA, MAVELIKKARA, ALAPPUZHA,
PIN - 690 106.
2 GIRISH KUMAR,
S/O.PARAMESWARNA PILLAI,
VADAKKEVILAYIL HOUSE, PALLARIMANGALAM P.O.,
PONAKAM, MAVELIKARA, ALAPPUZHA - 690 107.
M.A.C.A. No.353 of 2020
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3 NEW INDIA ASSURANCE CO.LTD.,
REP BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE,
KOLLAM, PIN - 691 001.
BY ADV SHRI.LAL K.JOSEPH, SC, NEW INDIA ASSURANCE
COMPANY LTD.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 18.08.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A. No.353 of 2020
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C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A. No.353 of 2020
----------------------------------------------------
Dated this the 18th day of August, 2025
JUDGMENT
This appeal under Section 173 of the Motor Vehicles Act,
1988 (the Act) has been filed by the claim petitioner in O.P.(MV)
No.1079/2015 on the file of the Additional Motor Accidents Claims
Tribunal-II, Mavelikara (the Tribunal), aggrieved by the amount of
compensation granted by Award dated 16/11//2019. The respondents
herein are the respondents in the petition. In this appeal, the parties
and the documents will be referred to as described in the original
petition.
2. According to the claim petitioner, on 25/08/2012 at
about 10:30 p.m., while he was pillion riding on motorcycle bearing
registration no.KL-31A-9129 through Mavelikara-Kuttitheruvu public
road and when he reached near Devi Narayana Hotel, due to the rash
and negligent driving of the first respondent, he was thrown to the
road, as a result of which he sustained grievous injuries. An amount of
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₹4,00,000/- was claimed as compensation under various heads.
3. The first respondent/rider and the second
respondent/owner remained ex parte.
4. The third respondent/insurer filed written statement
admitting the policy, but denying liability.
5. Before the Tribunal, no oral evidence was adduced
by either side. Exts.A1 to A15 were marked on the side of the claim
petitioner. No documentary evidence was produced by the
respondents.
6. The Tribunal on consideration of the documentary
evidence and after hearing both sides, found negligence on the part of
the first respondent/rider of the offending motorcycle resulting in the
incident and hence awarded an amount of ₹2,76,808/- together with
interest @ 8% per annum from the date of the petition till the date of
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.
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8. Heard both sides.
9. The award of compensation by the Tribunal under
the following heads is challenged by the claim petitioner -
Notional income
It is submitted by the learned counsel for the claim petitioner
that the latter, a 33 year old Civil Engineer was earning ₹12,000/- per
month. However, the Tribunal fixed the notional income at ₹4,500/-
only, which is quite low and hence, the same needs to be appropriately
enhanced. Per contra, it is submitted by the learned counsel for the
third respondent/insurer that in the absence of any materials on record
no infirmity has been committed by the Tribunal calling for an
interference by this Court.
9.1. Though it was alleged in the claim petition that the
claim petitioner was a civil engineer earning ₹12,000/- per month, no
materials whatsoever was produced to substantiate the claim regarding
the avocation or the claim regarding the income. However, going by
the dictum in Ramachandrappa v. Manager, Royal Sundaram
Alliance Co. Ltd, (2011) 13 SCC 236, the income of a coolie in the
year 2012 is liable to be fixed at ₹8,500/- per month. Hence, in the
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absence of any materials on record to show the avocation of the claim
petitioner, I find that fixing the notional income at ₹8,500/- would be
just and reasonable.
Compensation for pain and suffering
10. The materials on record show that the claim
petitioner sustained the following injuries-
"1) Fracture (lt) zygomatic arch and (lt) orbital floor and
roof, 2) SDH (right) frontal region, 3) SAH occipital sulci
4) (Lt) frontal parachmal bleed 5) Fracture frontal,
parietal bone (lt) and CSE Rhinorrhea."
He was hospitalized for a period of 59 days in two different spells.
Therefore, the amount of ₹50,000/- as claimed can be awarded under
this head.
Compensation for loss of amenities in life
11. An amount of ₹20,000/- was claimed. The Tribunal
did not grant any amount. Hence, the amount as claimed can be
awarded under this head.
Compensation for permanent disability
12. An amount of ₹2,00,000/- was claimed. The
Tribunal granted an amount of ₹2,00,000/-. However, it is submitted
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by the learned counsel for the claim petitioner that when the disability
has been assessed as 30%, the Tribunal committed an error in not
granting future prospects based on the dictum in Sarla Verma v.
Delhi Transport Corporation, (2009) 6 SCC 121 : AIR 2009 SC
3104 : 2010 (2) KLT 802 approved by a Constitution Bench of the
Apex Court in National Insurance Company Limited v. Pranay
Sethi, 2017 (5) KHC 350: (2017) 16 SCC 680. Per contra, it is
submitted by the learned counsel for the third respondent/insurer that
as per Ext.A7, the disability is only 30%, which is visual disability and
therefore, the functional disability ought not to have been fixed as
30% by the Tribunal and at best it could only have been 10%. Hence,
the Tribunal was right in granting ₹2,00,000/- as compensation under
this head, and so no interference is called for.
12.1. The third respondent/insurer has not filed any appeal
challenging the percentage of disability that has been fixed by the
Tribunal. Ext.A7 disability certificate reads thus-
"MEDICAL CERTIFICATE
Certificate issued to Handicapped Person by Medical Board
(Vide G.O.M.S.43/91/LBR dt.9-05-1991 of Govt.of Kerala)
No B3-368/16
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✓
Sri. /Smt./Master/Kumari SANTHISH KUMAR aged 34 Years.
residing at Sreekrishna Bhavan, Kallumala, Mavelikara P.O.
whose signature/ thumb impression is given above has been
examined by the special Medical Board for handicapped today
and we find that he/she is suffering from LE EXOPHTHALMOSE
LE old TON
LE MACULAR SCARRING
✓
and hence he/she is a Locomotor/Visual /speech and
hearing/Mental/handicapped and the
✓
resultants/Permanent /partial disability is assessed to be Thirty
percentage (30%) and comes under the category Moderate."
The Tribunal taking into account Ext.A7, fixed the functional
disability as 30%. I do not find any infirmity calling for an
interference by this Court.
Addition to be made towards future prospects
13. I have already referred to the disabilities caused
which is noted in Ext.A7. Therefore, taking into account the
certificate, I find that 40% addition to the income can be granted.
14. The impugned Award is modified to the following
extent :
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Sl. Head of claim Amount Amount Modified in
No. claimed Awarded by appeal
Tribunal
1 Loss of earnings ₹32,000/- ₹13,500/- ₹25,500/-
(₹8500/-x3 months)
2 Partial loss of ₹4,000/- -- --
earnings (No modification)
3 Transportation ₹15,000/- ₹5,500/- ₹5,500/-
(No modification)
4 Extra ₹3,000/- ₹3,000/- ₹3,000/-
nourishment (No modification)
5 Damage to ₹1,000/- ₹1,000/- ₹1,000/-
clothing (No modification)
6 Medical expense ₹65,000/- ₹33,808/- ₹33,808/-
(No modification)
7 Bystander ₹10,000/- ₹10,000/- ₹10,000/-
expense (No modification)
8 Compensation ₹50,000/- ₹10,000/- ₹50,000/-
for pain and
sufferings
9 Compensation ₹2,00,000/- ₹2,00,000/- ₹6,85,440/-
for permanent (₹8,500/-+ ₹8,500/-
disability x40/100)x12x16x30/
100)
10 Compensation ₹20,000/- -- --
for loss of (No modification)
earning power
11 Compensation ₹20,000/- -- ₹20,000/-
for loss of
amenities and
enjoyment in
life
Total ₹4,20,000/- ₹2,76,808/- ₹8,34,248/-
limited to
₹4,00,000/-
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In the result, the appeal is allowed by enhancing the
compensation by a further amount of ₹5,57,440/- (total compensation
= ₹8,34,248/-, that is, ₹2,76,808/- granted by the Tribunal +
₹5,57,440/- 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 compensation with interest and costs before the Tribunal within a
period of 60 days from the date of receipt of a copy of the judgment.
On deposit of the compensation 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
ak
