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Kerala High Court

Khader @ Khadermon (Deceased)* vs P.G.Christy on 15 December, 2025

MACA NO. 115 OF 2013
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           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

 FRIDAY, THE 15TH DAY OF DECEMBER 2025 / 24th   AGRAHAYANA, 1947

                       MACA NO. 115 OF 2013

AGAINST THE AWARD DATED 17.05.2012 IN OP(MV) NO.1983 OF 2006 OF

           MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR

APPELLANT/PETITIONER :-

   *1     KHADER @ KHADERMON (DECEASED)
          S/O.HAMSA, RESIDING AT PUDUVEETTIL HOUSE,
          P.O.PERUVALLOOR, THRISSUR DISTRICT.(DIED)

    2     ADDITIONAL APPELLANTS 2 TO 6 ARE IMPLEADED :-

          SHAHARBAN, WIDOW OF KHADER @ KHADERMON,
          AGED 33 YEARS.

    3     MUHAMMED SAJAD (MINOR)
          S/O.LATE KHADER @ KHADERMON, AGED 11 YEARS

    4     MUHAMMED ADIL (MINOR)
          S/O.LATE KHADER @ KHADERMON, AGED 7 YEARS.

    5     FATHIMA SHEIKA (MINOR)
          D/O.LATE KHADER @ KHADERMON, AGED 4 YEARS

          (MINOR, 3 TO 5 REPRESENTED HEREIN BY THEIR GUARDIAN
          MOTHER THE IST PETITIONER/ THE ADDL.2ND APPELLANT)

    6     KHADEEJA
          MOTHER OF LATE KHADER @ KHADERMON, AGED 75 YEARS.

          ALL RESIDING AT PUDUVEETHIL HOUSE, P.O.,
          PERUVALLOOR, THRISSUR DISTRICT.

          *THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT IS
          IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 6 AS PER
 MACA NO. 115 OF 2013
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                                                 2025:KER:95325


          ORDER DTD 01/09/2015 IN IA.NO.2565/2015 IN MACA
          115/2013)

          BY ADVS.
          SRI.T.C.SURESH MENON
          SRI.P.S.APPU
          SRI.A.R.NIMOD

RESPONDENTS/RESPONDENTS :-

    1     P.G.CHRISTY, S/O.GEORGE, RESIDING AT PUTHUR HOUSE,
          P.O.VALAPPAD, THRISSUR DISTRICT, PIN-680567.

    2     SIJO, S/O.VARGHESE, RESIDING AT CHEMMANNUR HOUSE,
          S.THAIKKAD, PALAYOOR, THRISSUR DISTRICT, PIN-680506.

    3     THE NEW INDIA ASSURANCE COMPANY LIMITED
          ORISON COMPLEX
          WADAKKANCHERY ROAD, KUNNAMKULAM, THRISSUR-680503.

          BY ADVS.
          SHRI.K.M.MUHAMMED HUSSAIN
          SHRI.LAL K.JOSEPH
          SMT.P.K.PRIYA
          SRI.K.V.SREE VINAYAKAN
          SRI.T.K.VIPINDAS


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 10.12.2025, THE COURT ON 15.12.2025 DELIVERED THE
FOLLOWING:
 MACA NO. 115 OF 2013
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                                      JUDGMENT

This appeal is filed by the claimant in O.P (MV)

No.1983 of 2006 on the file of the Motor Accidents Claims

Tribunal, Thrissur, claiming enhancement of compensation.

The respondents herein were the respondents before the

tribunal. The appellant expired during the pendency of the

appeal and his legal heirs were impleaded as additional

appellants 2 to 6 as per order dated 01/09/2015 in

IA.NO.2565/2015.

2. According to the claimant, on 21.08.2006 at about

6.30 p.m., while the claimant was riding a motorcycle

bearing Reg.No.KL-8/B 4359, a mini lorry bearing

Reg.No.KL-8/U 6742, driven by the 2nd respondent in a rash

and negligent manner hit against the motorcycle. Due to

the impact, the claimant was thrown off from the

motorcycle and sustained serious injuries. He approached

the tribunal claiming compensation of ₹8,75,500/- which

was limited to ₹8,50,000/-.

3. Respondents 1 and 2, the owner and the driver,

remained ex-parte before the tribunal. The 3rd respondent

insurer filed a written statement admitting the policy, MACA NO. 115 OF 2013

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but disputing the quantum of compensation claimed and

also contended that the accident occurred due to the

negligence of the claimant himself. Before the tribunal,

PW's 1 and 2 were examined. Exts.A1 to A14, Exts.X1, X1(a)

and Ext.B1 were marked. The tribunal, after analysing the

pleadings and materials on record, awarded a sum of

₹3,92,100/- with 8% interest from the date of petition

till realization, as compensation under different heads

against the 3rd respondent being the insurer. Dissatisfied

with the quantum of compensation awarded by the tribunal,

the claimant has come up in appeal.

4. I have heard the learned counsel for the appellant

and the learned standing counsel for the insurance

company.

5. When the case was taken up on 30.07.2025 for

hearing, the learned standing counsel raised a contention

that the award challenged by the appellant had been set

aside and a modified award was passed on 13.12.2016. Since

the modified award is not challenged, the appeal itself is

not maintainable, is the issue raised by the learned

standing counsel appearing for the insurance company. MACA NO. 115 OF 2013

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Thereafter, on 15.07.2025, this Court directed the learned

standing counsel appearing for the insurance company to

produce a certified copy of the alleged award dated

13.12.2016.

6. Subsequently, the Registry was directed to return

the entire trial court records on 30.07.2025. Thereafter,

the learned counsel appearing for the appellant produced

the certified copy of the modified award dated 13.12.2016

along with I.A. No. 2 of 2025. The learned counsel

appearing for the first respondent submitted that details

of the driving licence were produced before the tribunal

along with a petition for setting aside the ex parte order

and the same was allowed after condoning the delay. The

tribunal thereafter found that there was a valid driving

licence at the time of the accident and thus deleted the

direction given by the tribunal in the award, to recover

the amount from the owner of the vehicle.

7. As per the award 17.05.2012, the tribunal granted the

insurer the right to recover the amount from the 1st

respondent, who is the owner of the offending vehicle.

When the case was taken up for hearing on 22.02.2022, on MACA NO. 115 OF 2013

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the basis of the submission made by the 1st respondent,

this Court directed the Registrar (District Judiciary) to

verify whether any subsequent order had been passed in

O.P.(MV) No.1983/2006 after 17.05.2012. Thereafter on

04.03.2022 the MACT, Thrissur informed this Court as

follows :-

With reference to the above, I may report the following facts for kind consideration. OP(MV) 1983/2006 was disposed of by this tribunal as per award dated 17.05.2012 awarding compensation of Rs.3,92,100/- in favour of the petitioner. Thereupon, as per order in Review Petition No.24/12 dated 22.09.2012, the award was reviewed and the third respondent/insurer was permitted to recover the amount, so paid from the 1st Respondent, as there is violation of policy condition i.e, on the ground of no valid permit and fitness certificate. Thereupon, as per order in I.A. 5767/2014 dated 15.02.2016, the ex parte award against the 1st Respondent was set aside, in so far as the recovery clause is concerned. Thereupon, as per award dated 13.12.2016 the liberty given to the 3rd Respondent, the Insurance st Company, to recover the amount from the 1 respondent, the owner, as per the award dated 17.05.2012 was deleted.

The award with respect to the other aspects stands sustained and ordered to be remain in force.

8. Thereafter along with I.A.No.2 of 2025 the

appellant produced the certified copy of the award dated MACA NO. 115 OF 2013

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13.12.2016 from paragraph 8, 9 and 10 reads as follows:-

"8. Except the fact that third respondent is given liberty to recover the amount from first respondent, there is no dispute. After the award is set aside, parties appeared. Earlier Exts.A1 to A14 and Exts.X1 and X1(a) were proved on the side of petitioner and PW1 and PW2 were examined. Ext.B1 copy of the policy was marked on the side of third respondent. After the award is set aside parties appeared and matter is heard.

9. The contention that second respondent had no driving licence does not stand proved. Ext.B2, the letter issued from RTO, is relied on by the first respondent would show that vehicle had permit and fitness certificate. There is no quarrel, in the circumstance, by the learned counsel for third respondent the recovery clause which is there in the award is to be deleted.

10. In the result, liberty given to third respondent, the insurance company to recover the amount from first respondent, the owner as per the award dated 17.05.2012 is hereby deleted. In all other respects, the above award shall remain in force. There is no order as to costs."

9. Hence from the above award dated 13.12.2016, it is

clear that the right given to the insurance company to

recover the amount from the owner of the vehicle was

deleted and the insurance company was held liable to pay

the amount.

10. The learned standing counsel appearing for the

insurance company submitted that since an appeal was MACA NO. 115 OF 2013

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pending before this Court, the tribunal ought not have

passed a modified award dated 13.12.2016. While passing

the afore award, the 3rd respondent/insurance company was

represented by their standing counsel before the tribunal.

No objections were raised by the standing counsel for the

insurance company before the tribunal while passing the

modified award dated 13.12.2016. The tribunal in the afore

modified order has only considered the recovery right

granted to the insurer to recover the amount from the

owner, and set aside the said finding by deleting the same

after hearing all parties. The modified award was brought

to the notice of this court, by producing the same along

with an interlocutory application. Moreover, no appeal has

been filed by the insurance company challenging the afore

award passed by the tribunal, deleting the right granted

to them to recover the amount from the owner. Hence, I do

not find any reason to hold that the appeal as not

maintainable.

11. The learned counsel for the appellant claims

enhancement mainly under the following heads:-

Notional income :- The learned counsel for the MACA NO. 115 OF 2013

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appellant submitted that though an amount of ₹35,000/- was

claimed as the income of the injured, who was working

abroad, the tribunal had taken an amount of ₹4,000/-. The

learned counsel for the appellant further submits that

Ext.A12 passport was produced to show that he was working

abroad at the time of accident. However, merely by

producing the passport may not be proper for the claimant

to claim an amount of ₹35,000/- towards his income. Since

there is no document to prove his employment or his

income, going by the judgment in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011

(13) SCC 236], the income of a Coolie, for an accident in

2006 is fixed as ₹5,500/- and sought for enhancement of

income. Therefore, In order to award a just and reasonable

compensation, I find it appropriate to re-fix the income

at ₹5,500/-.

Loss of earnings :- The learned counsel for the

appellant submitted that for awarding compensation under

the head loss of earnings, the tribunal has taken only a

period of five months and submitted that due to the

injuries sustained he could not go for work for almost MACA NO. 115 OF 2013

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eight months. Following were the injuries sustained :-

"(i) compound comminuted fracture lower end of right femur, (ii) crush injury on right 1st and 2nd toes

(iii) head injury (iv) fracture on right hand (v) loss of muscle, skin of right hand (vi) degloring injury right forearm (vii) lacerated wound scalp 6x1 cm and multiple bodily injuries."

Considering the nature of the injuries sustained, the

period of treatment undergone and the age of the appellant

being 36 years, a period of six months can be taken for

awarding compensation under the aforesaid head. Since the

monthly income is refixed at ₹5,500/-, the total

compensation payable under the head loss of earnings, is

recalculated thus: ₹33,000/- (5,500x6). The tribunal has

already awarded an amount of ₹20,000/- towards loss of

earnings. Thus, there will be an additional amount of

₹13,000/- under the head loss of earnings.

Bystander expenses :- The learned counsel for the

appellant submitted that the tribunal has awarded only an

amount of ₹3,000/- under the head bystander expenses.

Considering the nature of the injuries sustained and the

period of treatment undergone, I find that an amount of

₹100 per day for 60 days can be taken under this head. MACA NO. 115 OF 2013

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Therefore, the appellant is entitled to get a total amount

of ₹6,000/- under the said head. Thus, there will be an

additional amount of ₹3,000/- under the afore head.

Extra nourishment :- On a perusal of the award, it is

seen that the tribunal has not granted any compensation

towards extra nourishment. Considering the nature of the

injuries sustained and the period of treatment undergone,

I find that an amount of ₹100 per day for 60 days can be

taken under this head. Therefore, the appellant is

entitled to get a total amount of ₹6,000/- under the said

head.

Pain and sufferings :- The learned counsel for the

appellant submitted that the tribunal has awarded only an

amount of ₹25,000/- under the head pain and sufferings.

Considering the nature of injuries sustained as well as

the age of the appellant, I find that a total amount of

₹35,000/- can be awarded under the said head. Thus, there

will be an additional amount of ₹10,000/- under the afore

head.

Loss of amenities & enjoyment in life :- The learned

counsel for the appellant submitted that though the MACA NO. 115 OF 2013

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claimant claimed an amount of ₹25,000/- towards loss of

amenities, the tribunal has awarded only an amount of

₹15,000/-. Considering the nature of injuries sustained,

age of the claimant and loss of enjoyment in life, I find

that a total amount of ₹30,000/- can be awarded under the

said head. Thus, there will be an additional amount of

₹15,000/- under the afore head.

Permanent disability :- The learned counsel for the

appellant submitted that as per Ext.A5 disability certificate

the percentage of disability was assessed as 30%. However, the

tribunal has reduced the percentage of disability to 16%. The

learned counsel further submitted that the doctor who had

issued Ext.A5 disability certificate was examined as PW2. On a

perusal of Ext.A5 disability certificate, it is seen that the

doctor had assessed 30% disability combining the value of both

right upper and right lower limb. However, the tribunal has

reduced the percentage of disability to 16% for the reason that

whole body disability was not assessed by the doctor. The

doctor who issued the Ext.A5 certificate was examined as PW2

and during his examination he admitted that he had not assessed

the whole-body disability. However, considering the nature of

the disability and the reasons stated in Ext.A5 disability

certificate, I find that the percentage of disability fixed by MACA NO. 115 OF 2013

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the Tribunal is on the lower side. Accordingly, I find it

appropriate to refix the functional disability at 25%. Since

the monthly income has been refixed as ₹5,500/-, following

the judgments in National Insurance Co. Ltd. v. Pranay

Sethi & Ors [2017 (4) KLT 662 (SC)] and Sarla Verma v.

Delhi Transport Corporation [2010(2) KLT 802(SC)], the

compensation towards permanent disability is recalculated

as: ₹2,47,500/- (5,500x12x15x25/100). Since, the tribunal

has awarded an amount of ₹1,15,200/-, there will be an

additional amount of ₹1,32,300/- under the head permanent

disability.

13. Though the appellant claimed enhancement of

compensation under the other heads, on a perusal of the

records available, I am not inclined to interfere with the

compensation awarded by the tribunal under other heads

since it appears to be just and reasonable. Since the

appeal is of the year 2013, I find it appropriate to fix

the interest @7% per annum on the enhanced amount.

14. Thus, the impugned award of the tribunal is

modified as follows:-

MACA NO. 115 OF 2013

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Sl.

No Head of Claim Amount Amount Modified Total claimed awarded by in appeal compensation the tribunal

1 Loss of earnings 1,50,000 20,000 13,000 33,000

2 Transportation 3,000 3,000 (not 3,000 modified)

3 Extra 10,000 - 6,000 6,000 nourishment

4 Medical expenses 1,50,000 2,10,876 (not 2,10,876 modified)

5 Bystander 12,000 3,000 3,000 6,000 expenses

6 Pain and 25,000 25,000 10,000 35,000 sufferings

7 Disability - 1,15,200 1,32,300 2,47,500

8 Loss of 25,000 15,000 15,000 30,000 amenities

TOTAL 8,75,500 3,92,076 1,79,300 5,71,376 limited to rounded to 8,50,000 3,92,100

Accordingly, the appeal is allowed in part and the

additional appellants 2-6 are awarded an additional amount

of ₹1,79,300/- (Rupees one lakh seventy nine thousand

three hundred only) over and above the compensation

awarded by the tribunal with interest @7% per annum from MACA NO. 115 OF 2013

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the date of petition till realization and proportionate

costs from the 3rd respondent/insurer. The 3rd respondent

insurer shall deposit the said amount together with

interest and costs within a period of two months from the

date of receipt of a certified copy of this judgment. The

additional appellants 2-6 shall furnish copies of the PAN

Card, ADHAAR Card and bank details before the respondent

insurer within a period of one month so as to enable the

respondent insurer to make the deposit as ordered above.