Kerala High Court
Anupasree vs Radhakrishnan Nair on 13 February, 2025
2025:KER:12886
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 13TH DAY OF FEBRUARY 2025 / 24TH MAGHA, 1946
MACA NO. 2569 OF 2021
AGAINST THE AWARD DATED 27.07.2021 IN OPMV NO.446 OF
2017 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA
APPELLANT/PETITIONER:
ANUPASREE,
AGED 29 YEARS
D/O. SREEKUMAR M.S, SREELAKAM, KADAVOOR,
MAVELIKARA, KARIPUZHA, KANNAMANGALAM, ALAPPUZHA.
BY ADVS.
M.V.THAMBAN
R.REJI
THARA THAMBAN
B.BIPIN
ARUN BOSE
N.SUNIL JOSEPH
RESPONDENTS/RESPONDENTS:
1 RADHAKRISHNAN NAIR,
S/O. BALAKRISHNAN NAIR, REMYA NIVAS, PAYIKKUZHI
MURI, OCHIRA VILLAGE, OCHIRA P.O, PIN-690 526
2 THE NATIONAL INSURANCE COMPANY LIMITED,
KAYAMKULAM, ALAPPUZHA DISTRICT, PIN-690 502,
REPRESENTED BY ITS MANAGER.
BY ADV K.S.SANTHI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 13.02.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
MACA No.2569/21
2
2025:KER:12886
EASWARAN S., J.
---------------------------------------------------------
MACA No.2569 OF 2021
----------------------------------------------------------
Dated this the 13th day of February, 2025
JUDGMENT
The appeal arises out of the award in OP(MV)No.446/2017 on
the files of the Motor Accidents Claims Tribunal, Mavelikara.
2. The brief facts necessary for the disposal of the appeal
are as follows:
The appellant - claimant, claiming to be a Sales Girl in a
textile showroom, met with an accident on 18.12.2016, while she
was riding a scooter bearing Registration No.KL-31-H-4704 along
Kollam - Alappuzha National Highway. According to the appellant,
she was a Sales Girl earning a monthly income of Rs.15,000/-. In
support of her claim, Exts.A1 to A10 were produced. As a result of
the injury suffered by her in the accident, the appellant suffered
permanent disability and was referred to the Medical Board by an
order of the Tribunal on 06.12.2018. The Medical Board examined
the appellant and issued Ext.X1 Disability Certificate, which showed
2025:KER:12886
that the appellant suffered a permanent disability of 21%. The
Tribunal on appreciation of evidence found that the appellant was
not able to prove that she was earning a monthly income of
Rs.15,000/- and therefore proceeded to fix the notional income at
Rs.8,000/-. Still further, the Tribunal reduced the percentage of
disability to 15% on the ground that the disability of a particular
limb cannot be taken as a whole body disability. Accordingly, the
Tribunal awarded the following compensation:
Sl. Head of Claim Amount claimed Amount Basis-vital
No. (in rupees) awarded (in details in a
rupees) nutshell
1 Loss of earnings 40,000 16,000 (8000x2)
2 Partial loss of earnings 20,000 Nil
3 Transportation 10,000 2,500
4 Extra Nourishment 5,000 2,500
5 Damage to clothing 1,000 1,000
6 Medical expense 1,50,000 1,25,530 As per
Ext.A10
7 Bystander expense 5,000 2,750 (250x11)
8 Pain and sufferings 35,000 20,000
9 Compensation for 5,00,000 3,62,880 8,000x12x18
permanent disability x15/100)+4
10 Compensation for loss 50,000 Nil
of amenities in life
11 Compensation for 25,000 Nil
future treatment
Total Rs.8,41,000/- Rs.5,33,160/-
(Limited to
Rs.8,00,000/-)
2025:KER:12886
3. Heard, Sri.R.Reji - learned counsel for the appellant and
Smt.K.S.Santhi - learned Standing Counsel for the National
Insurance Company.
4. The question before this Court is as to whether the
Tribunal was justified in fixing the notional income of the
claimant/appellant. In Jitendra v. Sadiya and Others [2025 KHC
Online 7101] and Angad Tiwari and Another v. National
Insurance Company Ltd. and Another [Civil Appeal
No.10950/2024 decided on 01.10.2024], the Hon'ble Supreme
Court has categorically held that the income of the claimant cannot
be fixed notionally if the same can be fixed in terms of the
notification issued under the Minimum Wages Act, 1948.
5. In G.O.(P)No.56/2017/Fin. dated 28.04.2017, the State
of Kerala has refixed the minimum wage under the Minimum Wages
Act with effect from 01.04.2016. Therefore, the claimant/appellant
is entitled to have her income fixed at Rs.17,325/- in this case.
6. Insofar as the percentage of disability is concerned, this
Court cannot, but, notice the fact that the assessment of the
percentage of disability by the Medical Board was pursuant to the
orders of the Tribunal on 06.12.2018. In other words, the Medical
2025:KER:12886
Board having been constituted under the orders of the Tribunal, the
Tribunal was certainly bound by the report of the Medical Board,
unless it ordered reassessment of same under due process of law.
Having not taken recourse to the said procedure, the Tribunal could
not have sat over the report of the Medical Board and fixed the
disability at 15%.
7. In the result, the appellant is entitled to succeed. The
appeal is thus allowed and the appellant is entitled for enhanced
compensation as follows:
The notional income of the claimant is fixed at Rs.17,325/-.
Adding 40% future prospects, the income would come to
Rs.24,255/-.
Heads Amount awarded Total Enhanced amount
by the Tribunal compensation of compensation
awarded in
appeal
Loss of earnings 16,000/- 51,975/- 35,975/-
[17325x3] [51975-16000]
Compensation for 3,62,880/- 11,00,207/- 7,37,327/-
permanent [24255x12x18x [1100207-362880]
disability 21/100]
Total enhanced amount of compensation 7,73,302/-
Accordingly, the appellant/claimant is awarded an additional
compensation of Rs.7,73,302/- (Rupees seven lakhs seventy
three thousand three hundred two only) over and above the
2025:KER:12886
compensation awarded by the Tribunal with interest @8% per
annum from the date of petition till realization together with
proportionate costs. The Insurance Company is directed to deposit
the aforesaid amount within a period of two months from the date
of receipt of a copy of this judgment.
The appeal is allowed accordingly.
Sd/-
EASWARAN S.
JUDGE
ACR
