Kerala High Court
Sudheer vs National Insurance Company Ltd., ... on 3 July, 2025
2025:KER:48730
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 3RD DAY OF JULY 2025 / 12TH ASHADHA, 1947
MACA NO. 257 OF 2020
AGAINST THE AWARD DATED 05.10.2019 IN OPMV NO.383 OF
2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM
APPELLANT/2ND RESPONDENT:
NATIONAL INSURANCE CO. LTD
KOLLAM, REP. BY THE MANAGER, KOCHI REGIONAL
OFFICE, M.G.ROD, ERNAKULAM, COCHIN-682035
BY ADV SRI.E.M.JOSEPH
RESPONDENT/PETITIONER:
SUDHEER
AGED 45 YEARS
S/O.DEVARAJAN, OMKARAM, PARANDAKULAM,
PUTHENKULAM, POOTHAKULAM, KOLLAM 691302
BY ADVS.
SRI.PRATHEESH.P
SMT.ANJANA KANNATH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 03.07.2025, ALONG WITH CO.30/2020, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
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MACA NO.257/2020 & CO NO.30/2020
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 3RD DAY OF JULY 2025 / 12TH ASHADHA, 1947
CO NO. 30 OF 2020
AGAINST MACA NO.257 OF 2020 OF HIGH COURT OF KERALA
CROSS OBJECTOR/RESPONDENT/CLAIMANT:
SUDHEER
AGED 45 YEARS
S/O.DEVARAJAN, OMKARAM, PARADAKULAM, PUTHENKULAM,
POOTHAKULAM, KOLLAM - 691302
BY ADVS.
SRI.PRATHEESH.P
SMT.S.SEETHA
RESPONDENT/APPELLANT/2ND RESPONDENT:
NATIONAL INSURANCE COMPANY LTD., KOLLAM
REPRESENTED BY THE MANAGER, KOCHI REGIONAL OFFICE,
M.G.ROAD, ERNAKULAM, COCHIN- 682035
BY ADV SRI.E.M.JOSEPH
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
HEARING ON 03.07.2025, ALONG WITH MACA.257/2020, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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3
C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A. No.257 of 2020
&
Cross Objection No.30 of 2020
----------------------------------------------------
Dated this the 3rd day of July 2025
JUDGMENT
This appeal has been filed under Section 173 of the Motor
Vehicles Act, 1988 (the Act) by the second respondent/insurer in
O.P.(MV) No.383/2016 on the file of the Motor Accidents Claims
Tribunal, Kollam (the Tribunal), aggrieved by the Award dated
05/10/2019. The sole respondent herein is the claim petitioner in
the petition. The claim petitioner has filed Cross Objection no.30 of
2020. In this appeal and cross objection, the parties and the
documents will be referred to as described in the original petition.
2. According to the claim petitioner, on 03/12/2014
at 06:45 p.m., while he was standing on the northern side of
Paravoor-Parippally public road near Puthenkulam Kalinkumukku
Vayanasala, motorcycle bearing registration no.KL02AQR4977
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ridden by the first respondent in a rash and negligent manner
knocked him down, as a result of which he sustained grievous
injuries. A sum of ₹25,00,000/- was claimed as compensation
under various heads.
3. The first respondent/owner-cum-rider remained
ex parte.
4. The second respondent/insurer filed written
statement admitting the policy but denied negligence on the part of
the first respondent. The age, occupation and income of the claim
petitioner were disputed. It was also contended that the
compensation claimed was quite excessive.
5. Before the Tribunal, no oral evidence was
adduced by either side. Exts.A1 to A26 and Ext.X1 were marked on
the side of the claim petitioner. No documentary evidence was
adduced by the second respondent/insurer.
6. The Tribunal on consideration of the documentary
evidence and after hearing both sides, found negligence on the part
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of the first respondent/owner-cum-rider of the offending vehicle
resulting in the incident and hence awarded an amount of
₹46,32,700/- together with interest @ 8% per annum from the date
of the petition till realisation excluding interest for future treatment
expenses along with proportionate costs. Aggrieved by the Award,
the second respondent/insurer 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 under the following
heads are challenged -
Notional income
It is submitted by the learned counsel for the claim
petitioner that the latter, being an autorickshaw driver, was earning
an amount of ₹20,000/- per month. However, the Tribunal fixed the
notional income at ₹13,000/- which is quite low going by the
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dictum in Manusha Sreekumar v. United India Insurance
Company Ltd., (2022) 17 SCC 321: AIR 2022 SC 5161.
9.1. In Manusha Sreekumar (Supra), the deceased
was a self employed man, who is described by the Apex Court as a
person, who donned multiple hats so as to provide a comfortable
living for his family. It was alleged that the deceased was a fish
vendor-cum-driver earning at least ₹25,000/- per month. In support
of the claim, various documentary evidence was produced to prove
his financial capacity, which were- (i) course certificate showing
that the deceased had completed two years course in electronic
mechanic trade; (ii) a job training certificate at Sun Generic Cables
Pvt. Ltd.; (iii) Passport of the deceased indicating that he was
earlier employed in the Sultanate of Oman; (iv) a certificate to
show that he was receiving rent from a shop in the Municipal
Market shopping complex; (v) a job offer letter dated 11/12/2014
from the United Kingdom, offering the position of Telecom Rigger;
(vi) bank statements of the deceased and (vii) certificate of Kerala
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Motor Transport Workers' Welfare Fund Board. The Tribunal fixed
the notional income at ₹17,500/- per month (₹14,000/- + ₹3,500/-
rent). The High Court relying on the dictum in Ramachandrappa
v. Manager, Royal Sundaram Alliance Insurance Co. Ltd,
(2011) 13 SCC 236, fixed the monthly income at ₹10,000/-. One
of the issues that was considered by the Apex Court was whether
the High Court was right in reducing the income from ₹17,500/- to
₹10,000/- on the ground of want of sufficient documentary
evidence. From the evidence on record, the Apex Court found that
it was undoubtedly established that the deceased was a fish vendor
cum driver with a valid license. The certificate issued by the
Kerala Motor Transport Workers' Welfare Fund Board certified that
the deceased was a driver of light motor goods vehicle. It was also
found that he had also paid all his subscriptions to the Board
without fail. In the light of the evidence produced, the notional
income of the deceased was fixed at ₹15,600/-.
9.2. In the case on hand, apart from Ext.A21, the
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driving licence, there are no other materials on record. Hence, the
notional income can be fixed at ₹14,000/- which would be just and
reasonable in the facts and circumstances of the case.
Percentage of disability and compensation for permanent
disability
10. It is submitted by the learned counsel for the
second respondent/insurer that when Ext.X1 disability certificate
says that the permanent disability is 24%, the Tribunal was totally
unjustified in fixing the disability at 80% and adopting the
multiplier system for computing compensation for loss of earnings.
Per contra, it is submitted by the learned counsel for the claim
petitioner that in the light of the injuries sustained, the Tribunal was
justified in fixing the disability as 80%. He also draws my attention
to the disability certificate dated 18/01/2025 that has been
submitted pursuant to order dated 19/12/2024 of this Court as per
which the claim petitioner was referred to the Medical Board
constituted by the Medical College Hospital, Thiruvananthapuram.
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The same is marked as Ext.X2.
11.1. Ext.X1 disability certificate dated 10/10/2018
reads thus:
"This Certificate is issued as per direction from
the Honorable Court of MACT Kollam. O.P (M.V)
No.383/2016, Sudheer.D 45 years, Ohmkaram,
Poothakulam, Poothakulam P.O, was admitted in
Medical College Hospital, Thiruvananthapuram on
4/12/14 with IP No.78886/14 following an alleged road
traffic accident. He sustained fracture of shaft of right
femur and type III compound comminuted fracture of
both bones of right leg. He was treated by open
interlocking nailing of right femur, and external fixator
of right leg on 4/12/14. Skin grafting done on right leg
on 15/12/14. He was discharged on 31/12/14. He was
admitted in Medical Gastroenterology department on
18/2/15 with IP No.96918/15 for viral hepatitis and
discharged on 25/2/15 He was again admitted on
8/4/15 with IP No.107627/15 with non-union of
fracture of both bones of right leg. He was treated by
open nailing and fibulectomy and bone grafting on
16/4/15. He was discharged on 21/4/15. He was
admitted in Government Medical College Hospital,
Parippally, Kollam on 3/9/18 with IP No.19521/18 with
nonunion of femur. He was treated by removal of
implants from femur and tibia and double plating of
femur and bone grafting and discharged on 17/9/18.
At the time of examination on 10/10/18 he has the
following features. Scars on right thigh and right leg.
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Plates and screws in situ in right femur.
Skin grafting-on right leg. Flexion of right knee limited
to 100 degrees. Shortening of 3cm of right lower limb.
Wasting of 1cm of right thigh muscles, and 1cm of right
calf muscles. Dorsiflexion of right ankle limited by 5
degrees. Sensory dulling on right big toe, and over
right lateral aspect of thigh.
Bone graft donor site over both iliac crests.
Sensory dulling over left thigh
Patient walks with limp.
Not able to squat
Not able to walk fast.
Difficulty in climbing stairs and getting downstairs.
Difficulty in carrying weight
Difficulty in driving vehicle
The disability is assessed as below:
1.Pain and mental trauma
2. Temporary disability of 100% for a period of Nine
months from date of injury.
3.Permanent disability of 24% (Twenty four percent)
as per Mc. Bride's scale." (Emphasis Supplied)
11.2. Ext.X2 disability certificate dated 18.01.2025
reads thus:
"We the members of the Medical Board Medical
College Hospital, Thiruvananthapuram, have examined
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Sri.Sudheer aged 51 years, residing at Omkaram,
Poarandakulam, Puthenkulam, Poothakulam, Kollam
on 18/01/2025 and found him as a person with
disability by reason of physical impairment due to
Fracture shaft of femur and both bone right with
post traumatic stiffness.
The disability is permanent in nature and degree
of disability having been found as 38% (Thirty eight
percentage only) as per the guidelines for the purpose
of assesssing the extent of specified disability in a
person included under the Rights of persons with
disabilities Act, 2016, Government of India Gazette
2024."
As per Ext.X1, the temporary disability was assessed as
100% for a period of 9 months from the date of injury. The
permanent disability has been assessed as 24% whereas in Ext.X2
disability certificate, the disability is stated to be 38%. In the light
of the difficulties caused to the claim petitioner due to the injuries
sustained in the accident as is evident from Ext.X1 and taking into
account the avocation of the claim petitioner, I find that the
functional disability can be fixed as 50%. As the functional
disability is fixed as 50%, 40% of the income is liable to be added
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towards loss of future prospects.
Loss of earnings
13. The learned counsel for the second
respondent/insurer submitted that in the light of Ext.X1, the
Tribunal was wholly unjustified in adopting the multiplier system
for computing compensation under the said head.
13.1. The multiplier system is normally adopted in
extreme cases where the claimant is in a vegetative state or
wheelchair bound or completely bedridden. In the case on record,
there is no such evidence regarding the claim petitioner herein.
However, taking into account the injuries sustained by him and the
resultant disabilities caused, in all probability, he might have been
unable to work for a period of 18 months. This period of 18 months
is fixed by taking into account Ext.X1 which says that the
temporary disability would be 100% for a period of 9 months
from the date of injury. Therefore, he would be entitled to an
amount of ₹2,52,000/- (14,000 x 18 months).
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14. The impugned Award is modified to the following
extent:
Sl. Head of claim Amount Amount Modified in
No. claimed Awarded appeal
(in ₹) by Tribunal (in ₹)
(in ₹)
1 Loss of earnings 2,00,000/- 21,84,000/- 2,52,000/-
(14,000 x 18)
2 Partial loss of Nil Nil Nil
earning (No Modification)
3 Transport to 20,000/- 50,000/- 50,000/-
hospital (No Modification)
4 Extra nourishment 10,000/- 40,000/- 40,000/-
(No Modification)
5 Damages to 2,000/- 3,500/- 3,500/-
clothing and (No Modification)
articles
6 Medicine and 2,00,000/- 1,08,000/- 1,08,000/-
treatment (No Modification)
Bystanders Nil 90,000/- 90,000/-
expenses (No Modification)
Salary 25,000/- Nil Nil
(No Modification)
7 Compensation for 2,00,000/- 1,50,000/- 1,50,000/-
pain and suffering (No Modification)
Compensation for 2,00,000/- 17,47,200/- 16,46,400/-
continuing or (13,000 x [(14,000+40% of
permanent 12 x 14 x 14,000) x 12 x 14
disability if any 80/100) x 50/100)
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Compensation for 14,65,000/- 2,00,000/-
loss of earning 2,00,000/-
power and loss of (No Modification)
amenities
8 Compensation for Nil 60,000/- 60,000/-
future treatment (No Modification)
Total 25,00,000/- 46,32,700/- 25,99,900/-
In the result, the appeal and cross objection are disposed
of by deducting the compensation awarded by an amount of
₹20,32,800/- (total compensation ₹25,99,900/-, that is,
₹46,32,700/- granted by the Tribunal minus ₹20,32,800/- deducted
in appeal).
Interlocutory applications, if any pending, shall stand
closed.
Sd/--
C.S.SUDHA
JUDGE
NP
