Kerala High Court
C.Sivakumar vs Johny on 14 July, 2025
M.A.C.A.No.134 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 14TH DAY OF JULY 2025 / 23RD ASHADHA, 1947
MACA NO. 134 OF 2020
AGAINST THE AWARD DATED 07.03.2019 IN OP(MV)NO.2328 OF
2012 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,
THRISSUR.
APPELLANT/PETITIONER:
C.SIVAKUMAR,
AGED 48 YEARS,
S/O.VISWANATHAN, RESIDING AT CHELATT HOUSE,
P.O.POONKUNNAM, THRISSUR - 680 002.
BY ADVS.
SRI.T.C.SURESH MENON
SRI.P.S.APPU
SRI.A.R.NIMOD
RESPONDENTS/RESPONDENTS:
1 JOHNY,
S/O.ANTONY, RESIDING AT CHIRAYATH HOUSE,
P.O.KARIATTUKARA, ELTHURUTH, THRISSUR - 680 611.
2 THE ORIENTAL INSURANCE COMPANY LIMITED,
THIRUVAMBADI DEVASWOM BUILDING, 2ND FLOOR,
ROUND WEST, P.O.THRISSUR - 680 001,
REPRESENTED BY ITS BRANCH MANAGER.
BY ADVS.
SRI.JOSE SEBASTIAN VAZHAPPILLY
SHRI.N.S.NAJEEB
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 14.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A.No.134 of 2020
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C.S.SUDHA, J.
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M.A.C.A.No.134 of 2020
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Dated this the 14th day of July 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.2328/2012 on the file of the Motor Accidents Claims Tribunal,
Thrissur, (the Tribunal), aggrieved by the amount of compensation
granted by Award dated 07/03/2019. 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 03/06/2012 at
about 02:30 p.m., while he was riding his motorcycle bearing
registration No.TMP-3367 through Karyattukara road and when he
reached near Swami Palam, car bearing registration No.KL-45-E-
6506 driven by the first respondent in a rash and negligent manner
knocked him down as a result of which he sustained grievous
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injuries. An amount of ₹4,05,100/- was claimed as compensation
under various heads.
3. The first respondent/owner-cum-driver remained ex
parte.
4. The second respondent/insurer filed written
statement admitting the policy, but denying negligence on the part of
the first respondent/driver. The age, income, hospitalization etc. were
disputed. It was also contended that the amount claimed was
excessive.
5. Before the Tribunal, no oral evidence was adduced
by either side. Exts.A1 to A14 were marked on the side of the claim
petitioner. Ext.B1 was marked on behalf of the second respondent.
6. The Tribunal on consideration of the documentary
evidence and after hearing both sides, found negligence on the part
of the first respondent/driver of the offending vehicle resulting in the
incident and hence awarded an amount of ₹1,68,560/- 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,
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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 when the Tribunal relying on Exts.A11, A12 and A13 found that
the monthly income of the claim petitioner is AED 4500, then fixing
the notional income at ₹15,000/- was a gross error committed by the
Tribunal, which requires to be interfered with. Per contra, it is
submitted by the learned counsel for the second respondent/insurer
that the amount of ₹15,000/- fixed as the monthly income of a driver
is quite reasonable and that it does not call for any interference.
9.1. Ext.A11 is a certificate that has been issued by the
Manager, Sun Energy LLC where the claim petitioner is stated to
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have been employed as a truck driver. The said certificate has not
been attested by the Embassy concerned. The person who issued the
certificate was also not examined before the Tribunal. The marking of
Ext.A11 was objected to by the second respondent/insurer, and
therefore, it was the duty of the claim petitioner to prove Ext.A11
certificate. However, the said course has not been adopted. The
incident took place on 03/06/2012. The fact that the claim petitioner
was a driver is not disputed. That being the position, the amount of
₹15,000/- fixed as the monthly income in the year 2012 appears to be
quite just and reasonable calling for no interference by this Court.
Loss of earnings
10. Exhibit A6 wound certificate shows that the claim
petitioner sustained the following injuries.
"crush injury right foot with avulsion of skin, fracture neck
of 3rd and 4th meta tarsal foot with avulsion of dorsal skin."
The materials on record show that he was hospitalized for a period of
14 days and also underwent 3 surgeries. In the light of the injuries
sustained, which include fractures, and the medical interventions he
had to undergo, I find that in all probability, he might have been
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unable to work for a period of 6 months and therefore the amount of
compensation to which he would be entitled is ₹15,000/-x6 months
=₹90,000/-.
Bystander expenses
11. An amount of ₹6,600/- was claimed. The Tribunal
granted an amount of ₹2,800/-. As noticed earlier, the incident took
place on 03/06/2012. Hence compensation at the rate of ₹250/- per
day for a period of 14 days would be just and reasonable, that is,
₹250/-x14 days=₹3,500/-.
Pain and suffering
12. An amount of ₹25,000/- was claimed. The Tribunal
granted an amount of ₹30,000/-. This is also challenged by the
learned counsel for the claim petitioner, who submitted that in the
light of the nature of injuries sustained, the amount granted is too
meager.
12.1. As pointed out by the learned counsel for the second
respondent/insurer an amount of ₹30,000/- was granted by the
Tribunal, though only an amount of ₹25,000/- was claimed. The
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amount granted is reasonable and therefore it does not call for any
interference.
Loss of earnings due to permanent disability
13. The learned counsel for the claim petitioner
referring to Ext.A10 disability certificate submits that the Tribunal
went wrong in not assessing the disability and giving compensation
accordingly. The whole body disability has been assessed as 10%
and so based on Ext.A10, appropriate amount ought to have been
awarded, goes the argument. On the other hand it was submitted by
the learned counsel for the second respondent/insurer that Ext.A10
has not been proved and therefore the Tribunal was right in not
awarding any compensation.
14. Ext.A10 disability certificate reads thus:-
"This is to certify that Sivakumar C., 42,
S/o.Viswanathan, Chelatt House, Poonkunnam,
Thrissur was admitted with history of RTA in Elite
mission hospital on 03/06/2012. As per the discharge
summary he sustained the following injuries
(a) . Crush injury ® foot with avulsion of shin.
(b). Fracture near of 3rd , 4th metatarsals.
(c). Avulsion of dorsal skin with doubtful vascularity of
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the flap.
Treatment
He was treated by wound debridement with K wire
fixation of 3rd and 4th metatarsal. He was discharged
on 21.6.12.
On 13-9-12 I have examined him to assess the
disabilities. His present complaints are
1. Pain in ® foot where
2. Stiffness of ® foot and toes
On examination (clinically and surgically examined on 13-9-12)
1. Soft tissue loss over the dorsum of ® foot (6x6cm). Skin
grating has been done to cover the defect.
2. There is adhesion of external talus of foot to skin
grafted area
3. Malunited 3rd and 4th metatarsal ® ......... (not legible)
4. There is gross stiffness of metatarsal and tarso-
metatarsal joints, DIP and MTP and PIP joints of ®
foot (2,3,4th toe) He has got temporary disability for
....... (not legible) 4 months. Permanent disability for
whole body is assessed as 10% Disability is as per
McBride.
Disability evaluation
1. Metatarsal 3rd,,4 th weakness with pain-3
2. Soft tissue loss dorsum of ® foot-3
3. Stiffness of right foot and toes (2,3,4th )-4
------
10"
15. The marking of Ext.A10 certificate which is seen
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issued by a single doctor was objected to by the second
respondent/insurer when it was attempted to be brought in evidence.
However, the claim petitioner did not take any steps to examine the
doctor. Neither did he enter the box nor adduce evidence regarding
the disabilities caused to him pursuant to the injuries sustained in the
accident. It was submitted by the learned counsel for the claim
petitioner that it would be quite unjust not to award any
compensation in the light of the injury sustained, taking into account
the avocation of the claim petitioner, who admittedly is a driver. As
the disability certificate has not been proved, the same cannot be
relied on. However, taking into account the injuries sustained by the
claim petitioner which include a crush injury of right foot and the fact
that he is a driver, the injuries must have affected his functioning as a
driver. Hence the functional disability can be fixed at 4% and
compensation awarded accordingly. That is, ₹1,00,800/-
(₹15,000x12x4/100x14).
16. 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 earning ₹2,20,500/- ₹45,000/- ₹90,000/-
(₹15,000/-x6
months)
2 Medical ₹75,000/- ₹61,760/- ₹61,760/-
expenses (No modification)
3 Bystander ₹6,600/- ₹2,800/- ₹3,500/-
expenses (₹250/-x14 days)
4 Transportation ₹2,000/- ₹2,000/- ₹2,000/-
expenses (No modification)
5 Extra ₹5,000/- ₹1,000/- ₹1,000/-
nourishment (No modification)
6 Damage to ₹1,000/- ₹1,000/- ₹1,000/-
clothing etc. (No modification)
7 Pain and ₹25,000/- ₹30,000/- ₹30,000/-
suffering (No modification)
8 Compensation ₹50,000/- -- ₹1,00,800/-
for continuing
or permanent (₹15,000x12x4/100
disability
x14)
9 Compensation -- -- --
for the loss of (No modification)
earning power
10 Loss of ₹20,000/- ₹25,000/- ₹25,000/-
amenities and (No modification)
enjoyment of
life
Total ₹4,05,100/- ₹1,68,560/- ₹3,15,060/-
In the result, the appeal is allowed by enhancing the
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compensation by a further amount of ₹1,46,500/- (total compensation
= ₹3,15,060/-, that is, ₹1,68,560/- granted by the Tribunal +
₹1,46,500/- 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 88 days delay in filing the appeal) and proportionate costs.
The second 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
