Kerala High Court
The New India Assurance Co.Ltd vs Aswin Babu on 15 July, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 15TH DAY OF JULY 2025 / 24TH ASHADHA, 1947
MACA NO. 74 OF 2020
AGAINST THE AWARD DATED 30.04.2019 IN OPMV NO.700 OF
2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA
APPELLANT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE CO.LTD.,
1ST FLOOR, THARIFF BAZAR,
OPP. TOWN HALL, TIRUR.
BY ADV SRI.LAL K.JOSEPH
RESPONDENT/PETITIONER:
ASWIN BABU,
S/O. SURESHBABU, RESIDING AT CHERUKUNNUMMAL HOUSE,
MUCHUKUNNU, P.O., KOYILANDI TALUK,
KOZHIKODE DISTRICT - 673307
BY ADV SRI.AVM.SALAHUDIN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 08.07.2025, ALONG WITH MACA.93/2020, THE COURT ON
15.07.2025 DELIVERED THE FOLLOWING:
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2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 15TH DAY OF JULY 2025 / 24TH ASHADHA, 1947
MACA NO. 93 OF 2020
AGAINST THE AWARD DATED 30.04.2019 IN OPMV NO.700 OF
2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA
APPELLANT/PETITIONER:
ASWINBABU,
AGED 33 YEARS
S/O.SURESHBABU, RESIDING AT CHERUKUNNUMMAL (H),
MUCHUKUNNU (PO), KOYILANDY TALUK,
KOZHIKODE (DT.) - 673 307.
SRI.AVM.SALAHUDIN
SMT.A.D.DIVYA
RESPONDENT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE COMPANY LTD.,
1ST FLOOR, THARIFF BAZAR, OPP. TOWN HALL, TIRUR
(POST) - 676 101, REPRESENTED BY BRANCH MANAGER.
BY ADV SRI.LAL K.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 08.07.2025, ALONG WITH MACA.74/2020, THE COURT
ON 15.07.2025 DELIVERED THE FOLLOWING:
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3
C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A. Nos.74 & 93 of 2020
----------------------------------------------------
Dated this the 15th day of July 2025
JUDGMENT
These appeals have been filed under Section 173 of the Motor
Vehicles Act, 1988 (the Act) by the third respondent/insurer and the
claim petitioner respectively in O.P.(MV) No.700 of 2014 on the
file of the Motor Accidents Claims Tribunal, Vatakara, (the
Tribunal), aggrieved by the amount of compensation granted by the
Award dated 30/04/2019. The sole respondent in MACA
No.74/2020 is the claim petitioner and the sole respondent in
MACA No.93/2020, the third respondent/insurer in the petition. In
these appeals, the parties and the documents will be referred to as
described in the original petitions.
2. According to the claim petitioner, on 27/01/2013 at
10:30 a.m., while he was riding a motorcycle, car bearing
registration no.KL523578 driven by the second respondent in a rash
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and negligent manner knocked him down, as a result of which he
sustained grievous injuries. A sum of ₹60,00,000/- was claimed as
compensation under various heads.
3. The first respondent/owner and the second
respondent/driver of the offending vehicle remained ex parte.
4. The third respondent/insurer filed written statement and
additional written statement admitting the existence of a valid
policy in respect of the offending vehicle but denied negligence on
the part of the second respondent/driver. 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, PW1 was examined and Exts.A1 to
A21 and Ext.C1 were marked on the side of the claim petitioner
and Ext.B1 was marked on the side of the third respondent/insurer.
6. The Tribunal on consideration of the oral and
documentary evidence and after hearing both sides, found
negligence on the part of the second respondent/driver of the
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offending vehicle resulting in the incident and hence awarded an
amount of ₹61,55,700/- together with interest @ 9% per annum
from the date of the petition till realisation along with proportionate
costs. Aggrieved by the Award, the third respondent/insurer and the
claim petitioner have come up in appeals.
7. The only point that arises for consideration in these
appeals is whether there is any infirmity in the findings of the
Tribunal calling for an interference by this Court.
8. Heard both sides
9. It was submitted by the learned counsel for the third
respondent/insurer that though a contention of contributory
negligence on the part of the claim petitioner was taken up in the
written statement, the same has not been considered in the correct
perspective by the Tribunal. The claim petitioner did not have a
valid driving licence at the time of the accident which would show
that he was not having the necessary skills for riding a motorcycle
and hence the Tribunal ought to have found that he had also
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contributed to the accident in equal proportion, goes the argument.
9.1. Ext.A1 is the FIR and Ext.A2 (B1), the final report, in
Crime no.116/2013, Koyilandy police station, alleging commission
of offences punishable under Sections 279, 337 and 338 IPC. As
per the final report, the accident occurred due to the rashness and
negligence of the second respondent/driver of the car bearing
registration no.KL523578. The Tribunal relying on the dictum in
New India Assurance Company Ltd. v. Pazhaniammal, 2011 (3)
KLT 648, held that the final report is prima facie evidence of
negligence for the purpose of a claim under Section 166 of the Act;
that once the final report/charge sheet is produced by the claim
petitioner, the burden of proof shifts to the party who challenges the
same and that it then becomes his responsibility to adduce evidence
to disprove the final report. Neither the second respondent/driver
nor the third respondent/insurer has adduced any evidence to
disprove the final report and therefore the Tribunal concluded that
the final report prima facie established the negligence of the second
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respondent/driver and hence proceeded to conclude that his
negligence and rashness resulted in the accident.
9.2. According to the learned counsel for the third
respondent/insurer, the claim petitioner did not had a valid driving
licence. Though such a contention was taken up by the third
respondent/insurer in their written statement, no steps are seen
taken before the Tribunal to direct the claim petitioner to produce
his driving licence. The final report does not say that the claim
petitioner did not have a driving licence at the relevant time. Now,
even assuming for argument sake that the claim petitioner did not
have a valid driving licence at the time of the accident, the same is
no ground to hold that he was also negligent or to find contributory
negligence on his part. It is well settled that for finding contributory
negligence on the part of a person, there has to be materials on
record to prove the same. In the case on hand, there are no materials
on record to show that the claim petitioner was equally negligent or
that he contributed to the accident. The mere absence of a driving
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licence is no reason to assume or presume that the claim petitioner
was also negligent and that he had contributed to the accident.
9.3. The claim petitioner offered himself as a witness and
was examined before the Tribunal as PW1. In the proof affidavit
filed in lieu of chief examination, he has stated that speeding by the
second respondent/driver caused the accident. PW1 was never
cross-examined by any of the respondents. When this aspect was
pointed out, the learned counsel for the third respondent/insurer
submitted that there is absolutely no necessity to cross-examine
PW1 when the final report shows that he had no driving licence at
the relevant time. Ext.A2 (B1), the final report, only says that the
accused therein, that is, the second respondent/driver, has
committed the offences punishable under Sections 279, 337 and
338 IPC. Therefore, the argument that the final report refers to the
absence of driving licence of the claim petitioner is apparently
incorrect. In the absence of any evidence to hold that the claim
petitioner was negligent, it cannot be found that he had also
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contributed to the accident as canvassed by the learned counsel for
the third respondent/insurer. Therefore, I find that the Tribunal was
justified in finding the second respondent/driver to be negligent
which resulted in the accident based on Ext.A2 (B1) final report.
10. The award of compensation by the Tribunal under the
following heads is challenged -
Pain and suffering and loss of amenities and enjoyment of life
It was submitted by the learned counsel for the claim
petitioner that the evidence on record clearly shows that the
disability sustained by the claim petitioner due to the accident is
100%. That being the position, the compensation awarded under the
heads 'pain and suffering' and 'loss of amenities and enjoyment of
life' is quite low. In support of the argument, he relies on the
dictums in Benson George v. Reliance General Insurance Co. Ltd.,
2022 KHC 6232: (2022) 13 SCC 142; K.S. Muralidhar v.
R.Subbulakshmi, 2025 AIR (SC) 70 and Ramshad P. v. Afsal, 2025
(1) KHC 575.
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10.1. In Benson George (Supra), the accident occurred on
01/01/2013. The claim petitioner therein sustained grievous brain
injuries. He also underwent a brain surgery. Pursuant to the
accident, he fell into coma which continued even till the claim
petition was filed. He was a 29 year old Process Supervisor in
Deutsche Bank. Taking into account the fact that the claim
petitioner was in coma and completely bedridden and also the fact
that he had to undergo three major brain operations, an amount of
₹10,00,000/- each was awarded for pain and suffering and loss of
amenities and enjoyment of life.
10.2. In K.S. Muralidhar (Supra), the accident occurred on
22/08/2008. The injuries sustained were to the extent of 90%
permanent disability. The functional disability was assessed as
100%. The materials on record showed that the claim petitioner
therein was wheel-chair bound with no movements in both lower
limbs, minimal movements in bilateral upper limb proximally with
wrist being very weak and grip was not possible. He had no urinary
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control or sensation of bowels and he was on urinary catheter. He
needed help for all his day-to-day activities. There was almost no
chance of further improvement and the impairment was found
likely to be permanent. The disability was fixed by the doctor as
85% to the whole body. In the light of the injuries suffered, the
Tribunal and High Court assessed the disability as 100%. The
amount awarded for pain and suffering was found to be low and so
the Apex Court awarded an amount of ₹15,00,000/- towards pain
and suffering.
10.3. In Ramshad P. (Supra), the accident occurred on
21/05/2017. The claim petitioner therein was a 20 year old who
was also 100% disabled and bedridden. A Single Bench of this
Court awarded an amount of ₹10,00,000/- each towards pain and
suffering and loss of amenities.
10.4. In the case on hand, Ext.C1 reads thus:
"Medical Board constituted as per the order of the
Hon'ble Motor Accidents Claims Tribunal, Vatakara in
OP (MV) No.700/14.
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We, the members of the Medical Board, Medical
College Hospital, Thiruvananthapuram, have examined
Sri. Aswin Babu, aged 32 years, S/o Suresh Babu
residing at Cherukunnummal (H), Muchukunnu.P.O,
Koyilandy, Kozhikode on 12.12.2018, and found him as a
person with disability by reason of physical impairment
due to;
1. Complete spinal cord injury - Paraplegia with Sensory
loss below D7 and neurogenic bowel and bladder
involvement.
Identification Marks:
1. Scar left temple
2. Brown mole forehead
The following consultants in different specialties
were included in the Medical Board and they have
examined the patient to assess the disability and it has
been found that the disability is permanent, the degree of
disabilities have been found as 100% (Hundred
percentage)." (Emphasis supplied)
The Tribunal also fixed the disability at 100%. Ext.A9
discharge summary dated 16/08/2013 shows that the claim
petitioner has no ability to stand and walk without support for six
months; bowel and urinary incontinence and numbness of both
lower limbs and inability to move both lower limbs and loss of
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sensation.
10.5. The relevant portion of Ext.A8 discharge summary
reads thus:
"xxxxxxxxxxxxx
Discussion
Mr. Aswin was admitted for rehabilitation of
traumatic T7 paraplegia. His pelvic imaging showed right
hip fracture subluxation. He was seen by Ortho II.
Considering the chances of him walking after the hip
surgery with the T7 paraplegia and the risks associated
with hip fracture surgery like wound breakdown &
infection, Heterotopic Ossification and the left ischial
pressure ulcer predisposing to infection after surgery, it
was decided not to operate on his right hip. He was
advised to restrain from activities involving the right hip
flexion, internal rotation and adduction to prevent the
dislocation.
His gluteal ulcer was managed conservatively
which healed completely at the time of discharge.
MOBILITY
He received physical therapy to improve his upper
limb power and endurance. He was also taught range of
movement exercises for both lower limbs, and was
oriented to the vertical in a tilt table. Later he was made
to stand with bilateral knee ankle foot orthosis within
parallel bars and was taught to ambulate by
hyperextending and hiking his hips. At discharge, he was
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able to ambulate with bilateral knee ankle foot orthosis
with in the parallel bars for therapeutic purpose.
He was given wheel chair training along with
advanced skills and at discharge he was able to propel at
a speed of 100 m/min with an endurance of 1000mts. He
was also trained to do wheelie, negotiate ramps, stairs,
rough terrain.
ACTIVITIES OF DAILY LIVING
He received occupational therapy to maximize his
independence in activities of daily living. He has good
sitting balance, and fair standing balance with bilateral
KAFOs and walker. He has adequate clearance and
endurance in static and dynamic push ups. Functional
independence measure at discharge:
Bed mobility 7
Coming up to sit 7
Feeding 7
Dressing, upper and lower halves 5
Grooming
Brushing, combing, shaving 5
Toileting
Urination- self intermittent catheterisation
Bowel- self digital evacuation
Donning and Doffing AFOS
Long sitting 6
High sitting 6
Transfers with walker
Direct 5
Pivot 5
Floor 5
Tricycle 5
Toilet stool 5
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He has been advised regarding necessary
(architectural) home modifications which he intends to do
after going home.
BLADDER-BOWEL
*Ultrasound upper tracts done on 10/5/13 showed
minimal calyseal dilatations bilaterally.
*Cystoscopy done on 11/6/13 showed features of cystitis.
(He was treated with the culturte specific antibiotics for
the same. There were no calculi.
*Cystometrogram done on 11/6/13 showed a good
compliance (on oxybutinin XL 5mg), areflexic bladder.
He has sensation at 360ml of infusion. Voluntary voiding
was not possible.
He was started on intermittent clean catheterization
for neurogenic bladder management, which he could do
independently and was continent.
He is trained to do digital stimulation and
evacuation of stools for neurogenic bowel management.
He was given counseling about sexual functions.
Tab Sildenafil and Tadalafil were tried with minimal
erectile response. He was given inj. Papavarine with
which desirable response was achieved. He was also
trained to self administer the same. Possible side effects
of papaverine injection were also explained to him. He
has been counselled regarding the possibilities of him
fathering children, and would seek review at the
appropriate time.
VOCATION
He intends to continue his PhD studies. He has
been educated about the provisions in the Persons with
Disability Act of India to enable him exercise his rights
as needed and appropriate.
xxxxxxxxxxxx" (Emphasis supplied)
It is apparent that the condition of the claim petitioner herein
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is not like that of the claim petitioner in the dictums relied on and
referred to herein above. However, the disability caused is also
high. Hence, taking into account the facts and circumstances of this
case, an amount of ₹7,00,000/- each towards 'pain and suffering'
and 'loss of amenities and enjoyment of life' can be granted.
Attendant charge
11. It was submitted by the learned counsel for the claim
petitioner that appropriate attendant charges must also be awarded.
It was also submitted that for fixing the attendant charges, notional
income must be fixed based on the Minimum Wages Act, 1948, and
also that multiplier system should be adopted.
11.1. In the claim petition, no amount was claimed towards
attendant charges. However, an amount of ₹1,00,000/- is seen
awarded by the Tribunal. In Master Jyothis Raj Krishna @ Jyothi
Krishna V. Sunny George, 2025 (1) KHC 348, a Single Bench of
this Court held that fixing the attendant charges based on the
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minimum wages prevailing in the State would not be advisable as
the minimum wages in the State is the highest in the Country and so
if compensation is fixed based on the same, the same was likely to
go out of proportion. Therefore, the argument that attendant charges
must be fixed based on the minimum wages prevailing cannot be
accepted. However, taking into account the nature of injuries
sustained and resultant disablement caused to the claim petitioner, I
find that an amount of ₹10,00,000/- can be awarded, which can be
deposited in fixed deposit and the interest accrued therefrom used
for meeting the expenses under this head.
12. 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 45,00,000/- Nil Nil
(No Modification)
2. Transport to 5,500/- 10,000/- 10,000/-
hospital (No Modification)
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3. Extra 20,000/- 20,000/- 20,000/-
nourishment & (No Modification)
bystander's
expenses
4. Medical 3,95,853/- 4,33,903/- 4,33,903/-
expenses (No Modification)
5 Damge to 2,000/- 1,000/- 1,000/-
clothing and (No Modification)
articles
6 Pain & suffering 1,00,000/- 2,00,000/- 7,00,000/-
7 Loss of Nil 1,00,000/- 7,00,000/-
amenities and
enjoyment of life
8 Future treatment 50,000/- 50,000/- 50,000/-
(No Modification)
9 Permanent 9,00,000/- Nil Nil
disability (No Modification)
10 Loss of earning 9,00,000/- 51,40,800/- 51,40,800/-
power (No Modification)
11 Attendant charge Nil 1,00,000/- 10,00,000/-
12 Loss of Nil 1,00,000/- 1,00,000/-
enjoyment of (No Modification)
marriage life
Total 68,73,353/- 61,55,703/- 81,55,703/-
limited to rounded to
60,00,000/- 61,55,700/-
In the result, MACA No.74/2020 filed by the third
respondent/insurer is dismissed and MACA No.93/2020 filed by the
claim petitioner is allowed by enhancing the compensation by a
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further amount of ₹20,00,003/- (total compensation ₹81,55,703/-,
that is, ₹61,55,700/- granted by the Tribunal plus ₹20,00,003/-
granted in appeal) with interest at the rate of 8% per annum from
the date of petition till date of realization 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.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
NP
