Kerala High Court

Kumaran Nair vs Kaja Hussain A on 22 August, 2025

                                                2025:KER:63789
            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

             THE HONOURABLE MRS. JUSTICE C.S. SUDHA

  FRIDAY, THE 22ND DAY OF AUGUST 2025 / 31ST SRAVANA, 1947

                      MACA NO. 519 OF 2020

        AGAINST THE AWARD DATED 11.07.2019 IN OPMV NO.967 OF

2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD

APPELLANT/PETITIONER:

           KUMARAN NAIR,
           AGED 77 YEARS
           S/O. KRISHNAN NAIR, PUTHEN VEEDU, PARAKKULAM,
           KUNISSERY P.O., PALAKKAD DISTRICT-678681.

           BY ADV SRI.BINOY VASUDEVAN
RESPONDENTS/RESPONDENTS:

    1      KAJA HUSSAIN A.,
           S/O. ALI K.U., AGED 35 YEARS,
           PARAKKAL HOUSE, 6/275, KUNNAMPARA,
           KUNISSERY P.O., PALAKKAD DISTRICT-678681.

    2      BADARUDHEEN ALI,
           S/O. ALI, PARAKKAL HOUSE,
           HARITHA NAGAR, KUNNAMPARA, KUNISSERY P.O.,
           PALAKKAD DISTRCT-678681.

    3      THE NEW INDIA ASSURANCE CO. LTD.,
           N.S. TOWER, NEAR STADIUM BUS STAND, COIMBATORE
           ROAD, PALAKKAD-678013, REPRESENTED BY ITS MANAGER.

           SRI.SEBASTIAN VARGHESE(K/141/2000)
           SRI.AJEESH EMMANUEL
           SMT.TIJIMOL VARGHESE


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 22.08.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                                              2025:KER:63789
MACA NO. 519 OF 2020

                                      2



                             C.S.SUDHA, J.
             ----------------------------------------------------
                       M.A.C.A. No.519 of 2020
             ----------------------------------------------------
               Dated this the 22nd 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.967/2017 on the file of the Motor Accidents Claims Tribunal,

Palakkad, (the Tribunal), aggrieved by the amount of compensation

granted by Award dated 11/07/2019. The respondents herein are

respondents 1 to 3 respectively 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 16/10/2016 at

about 05:30 a.m., while he was walking along the Kunissery-

Koduvayur public road, motorcycle bearing registration no.KL-49-

1023 ridden by the second respondent in a rash and negligent

manner knocked him down, as a result of which he sustained 2025:KER:63789 MACA NO. 519 OF 2020

grievous injuries. A sum of ₹7,00,000/- was claimed as

compensation under various heads.

3. The first respondent/owner and the second

respondent/rider of the offending vehicle filed joint written

statement denying negligence on the part of the latter. The age,

occupation and income of the claim petitioner were disputed. It was

also contended that the amount claimed as compensation is quite

excessive.

4. The third respondent/insurer filed written statement

admitting the existence of a valid policy in respect of the offending

vehicle, but denied liability since the second respondent was not

holding a valid driving licence at the time of the accident.

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

either side. Exts.A1 to A20 were marked on the side of the claim

petitioner and Exts.B1 and B2 were marked on the side of the

respondents.

6. The Tribunal on consideration of the documentary 2025:KER:63789 MACA NO. 519 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 ₹2,22,261/- together

with interest @ 7.5% 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 -

Notional income

It is submitted by the learned counsel for the claim petitioner

that the latter, a tea maker, was earning ₹15,000/- per month.

However, the Tribunal fixed the notional income at ₹6,000/- which

is quite low in the light of the dictum in Ramachandrappa v.

2025:KER:63789 MACA NO. 519 OF 2020

Manager, Royal Sundaram Alliance Insurance Co. Ltd, (2011) 13

SCC 236.

9.1. In the light of the dictum in Ramachandrappa (Supra),

the income of a coolie in the year 2016 is liable to be fixed as

₹10,500/-. Hence, the notional income of the claim petitioner can

also be fixed as ₹10,500/- in the absence of any other evidence.

Loss of earnings

10. The materials on record show that following injuries

were sustained by the claim petitioner:

"1) open comminuted fracture both bones of left leg

2) fracture distal ulna displaced

3) lacerated wound over the right forehead

4) bone exposed left leg

5) lacerated wound on scalp"

The claim petitioner was hospitalized for a period of 7 days.

In all probability, he might have been unable to work for a period of

6 months. Therefore, I find that he can be granted compensation

towards loss of earnings for a period of 6 months, which comes to 2025:KER:63789 MACA NO. 519 OF 2020

₹63,000/- (10,500 x 6 months).

Bystander expenses

11. It is pointed out that though an amount of ₹50,000/- was

claimed under this head, the Tribunal has granted an amount of

₹2,100/- only. The claim petitioner was hospitalized for a period of

7 days. The accident took place on 16/10/2016. Therefore, I find

that bystander expense at the rate of ₹450/- per day for a period of

7 days can be granted.

Compensation for pain and suffering

12. In the light of the injuries sustained by the claim

petitioner, which include fractures, and the medical interventions he

had to undergo, I find that an amount of ₹50,000/- under this head

would be just and reasonable.

Compensation for loss of amenities and enjoyment in life

13. Though an amount of ₹1,00,000/- was claimed, the

Tribunal has granted an amount of ₹15,000/- only. In the facts and

circumstances of the case, I find that an amount of ₹25,000/- under 2025:KER:63789 MACA NO. 519 OF 2020

this head would be just and reasonable.

Percentage of disability

14. The learned counsel for the claim petitioner submitted

that in the light of Ext.A15 disability certificate, which has fixed

the disability as 15%, the Tribunal was not justified in scaling it

down to 8% and hence the same has to be fixed according to

Ext.A15. Per contra, it is submitted by the learned counsel for the

third respondent/insurer that in the light of the disability sustained,

the functional disability being fixed as 8% is quite reasonable and

that it does not call for any interference.

14.1. I have already referred to the injuries sustained by the

claim petitioner. Ext.A15 disability certificate reads thus:

"This is to certify that I have examined sri. Kumarannair, 75yrs, M, Puthenveede, Parakulam, Kunissery, Palakkad on 27.8.18 for assessment of permanent physical disability. I have verified the discharge certificate (no.1187 dt. 25.10.16), discharge summary and the fresh X-rays (No.49 dt.1.9.18) before issuing the certificate. He was a hotel employee by profession.

2025:KER:63789 MACA NO. 519 OF 2020

The patient gives a h/o road traffic accident on 16.10.16 following which he was initially treated at Crescent hospital, Alathur and later admitted at Aswini hospital, Thrissur with open comminuted fracture both- bones (L)leg. He was treated by ILnail fixation alongwith other supportive measures and discharged on 22.10.16. The implants in the (L)tibia have not been removed yet for which another operation is required.

On clinicoradiological examination the patient has the following findings:

1. Surgical scars over (L)knee and leg

2. Bony deformity over (L)leg

3. ½ inch shortening (L) lower limb

4. Difficulty in squatting, sitting on the floor and climbing stairs

5. Radiologically, malunited fracture both bones (L)leg, ILN in situ.

The whole body permanent disability has been calculated using Mcbride scale as follows:

% for open comminuted fracture both bones (L)leg with angulation = 14% % for ½ inch shortening (L)lower limb = 2% Using the combination formula, combined disability=15% Conclusion sri.Kumarannair has got 15(fifteen)% of permanent physical disability(whole body) with respect to his injuries sustained in the accident.

I have not treated this patient. I have got more than 17yrs standing in orthopaedics."

Taking into account the age of the claim petitioner as well as 2025:KER:63789 MACA NO. 519 OF 2020

the dictum in Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343, I find

that the Tribunal was justified in fixing the functional disability at

8% and that it does not call for any interference.

15. 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 1,50,000/- 24,000/- 63,000/-

                                             (6,000 x 4)      (10,500 x 6)
 2.   Transportation to    20,000/-           5,000/-           5,000/-
      hospital                                              (No Modification)
 3.   Damage to             3,000/-           1,000/-           1,000/-
      clothing and                                          (No Modification)
      articles
 4.   Extra nourishment    15,000/-            2,000/-          2,000/-
                                                            (No Modification)
 5.   Expenses of a        50,000/-            2,100/-           3,150/-
      bystander                                                 (450 x 7)
 6.   Medical expenses     50,000/-          1,14,361/-        1,14,361/-
                                                            (No Modification)
 7.   Compensated for      1,00,000/-        30,000/-           50,000/-
      pain and suffering
 8.   Compensated for      1,00,000/-          28,800/-          50,400/-
      loss of future                        (6,000 x 12 x   (10,500 x 12 x 5 x
      earning power                           5 x 8/100)          8/100)
                                                              2025:KER:63789
MACA NO. 519 OF 2020





 9.   Compensated for         1,00,000/-       15,000/-        25,000/-
      loss of amenities
      and enjoyment in
      life
      Total                   limited to      2,22,261/-      3,13,911/-
                              7,00,000/-

In the result, the appeal is allowed by enhancing the

compensation by a further amount of ₹91,650/- (total

compensation = ₹3,13,911/- that is, ₹2,22,261/- granted by the

Tribunal plus ₹91,650/- 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 77 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 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. The liberty that has been granted to the third

respondent/insurer to recover the amount from the first respondent 2025:KER:63789 MACA NO. 519 OF 2020

is confirmed.