Kerala High Court
Vidhyadharan vs Vipin.K.T on 4 June, 2025
M.A.C.A.No.499 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 4TH DAY OF JUNE 2025 / 14TH JYAISHTA, 1947
MACA NO. 499 OF 2020
AGAINST THE AWARD DATED 23.09.2019 IN OP(MV)NO.1866 OF
2015 OF MOTOR ACCIDENTS CLAIMSS TRIBUNAL, KOTTAYAM.
APPELLANT/PETITIONER:
VIDHYADHARAN,
AGED 57 YEARS,
S/O PARAMESWARAN,
RESIDING AT KAPLAMMOOTTIL HOUSE,
MALAKUNNAM.P.O,
KURICHY,CHANGANACHERRY,PIN-686 522.
BY ADVS.
SRI.T.C.SURESH MENON
SRI.P.S.APPU
SRI.A.R.NIMOD
ESPONDENTS/RESPONDENTS:
1 VIPIN.K.T.,
S/O.THAMPI.R,RESIDING AT KATTUMKAL VEEDU,
VATTAYAL WARD,THIRUVAMBADI.P.O,
ALAPPUZHA-688 002.
2 NEW INDIA ASSURANE COMPANY LIMITED,
KOTTAYAM.P.O, KOTTAYAM-686 001,
REPRESENTED BY ITS BRANCH MANAGER.
BY ADV SHRI.RAJAN P.KALIYATH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 04.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.499 of 2020
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C.S.SUDHA, J.
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M.A.C.A.No.499 of 2020
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Dated this the 04th day of June 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.1866/2015 on the file of the Motor Accidents Claims Tribunal,
Kottayam, (the Tribunal), aggrieved by the amount of compensation
granted by Award dated 23/09/2019. 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 15/07/2015 at
09:30 p.m., while he was walking through the Thuruthy road near
Mission Church, motorcycle bearing registration No.KL-4/AG 9038
ridden by the 1st respondent in a negligent manner knocked him
down as a result of which he sustained grievous injuries.
3. The 1st respondent/rider remained ex parte.
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4. The 2nd respondent/insurer filed written statement
admitting the existence of a valid policy for the offending
motorcycle, but contended that the amount claimed was excessive.
5. Before the Tribunal, no oral evidence was adduced
by either side. Exts.A1 to A13 were marked on the side of the claim
petitioner. No documentary evidence was produced by the
respondents. X1 is the disability certificate issued from the Govt.
Medical College Hospital, Kottayam.
6. The Tribunal on consideration of the documentary
evidence and after hearing both sides, found negligence on the part of
the 1st respondent/rider of the motorcycle resulting in the incident and
hence awarded an amount of ₹1,82,850/- together with interest @ 9%
per annum from the date of the petition till the date of realisation
with proportionate costs. Aggrieved by the Award, 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.
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8. Heard both sides.
9. The award of compensation by the Tribunal under
the following heads are challenged by the claim petitioner.
Notional income
The learned counsel for the claim petitioner submits that the
claimant, a 52 year old man was working as a driver drawing a
monthly salary of ₹14,500/- when the incident occurred on
15/07/2015. Though documents were produced to substantiate this
allegation, the Tribunal fixed the notional income at the rate of
₹7,000/-, which is quite low and hence the same requires to be
enhanced.
The learned counsel for the 2nd respondent/insurer submitted
that though Ext.A9 salary certificate was produced, the same has not
been proved and hence the said certificate cannot be relied on and
that the amount fixed by the Tribunal is just and reasonable.
On going through the records, I find that as per Ext.A9
salary certificate issued by the Proprietor, Saxo Steels dated
08/02/2019 the claim petitioner was getting a monthly salary of
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₹14,500/-. It is true that mere marking of a document would not
prove the contents of the same. However, it is seen that the document
was never disputed before the Tribunal and its marking and
admission in evidence was also not objected to. Moreover, the fact
that the claim petitioner is a driver is not seen disputed or challenged.
In the light of Ext.A9 salary certificate, I find that the notional
income of the claim petitioner can be fixed at ₹14,500/-.
Loss of earning
An amount of ₹1,00,000/- was claimed. The Tribunal
granted an amount of ₹10,000/-. It is submitted by the learned
counsel for the claim petitioner that taking into account the nature of
injuries sustained and the medical interventions to which the claim
petitioner was subjected to, the amount awarded is low and hence the
same requires to be enhanced.
Ext.A3 wound certificate refers to the injuries sustained by
the claim petitioner:-
"O/E-Deformed (Lt) lower limb
Avulsion of (Rt) Great toe nail
conscious, oriented. No Head injury."
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The diagnosis was type II segmental compound fracture both bones
in the left leg. The discharge summary also refers to the medical
interventions to which the claim petitioner was subjected to. He was
hospitalized for a period of 39 days in different spells. The records
revealed that the claim petitioner was under treatment for a period of
about five months. Therefore, taking into account all these aspects, in
all probability the claim petitioner must have been unable to work for
a period of 6 months. Hence, he is entitled to an amount of ₹14,500/-
x 6 months=₹87,000/-.
Bystander expenses
An amount of ₹2,000/- was claimed. The Tribunal granted
an amount of ₹9,750/- that is, at the rate of ₹250/- for 39 days. This
again is challenged and submitted to be on the lower side. The
learned counsel for the 2nd respondent/insurer submits that the
amount awarded is quite reasonable and it does not call for any
interference.
The incident occurred on 15/07/2015. Hence, the bystander
expense at the rate of ₹400/- for 39 days is given, that is, ₹400/- x 39
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days=15,600/-.
Pain and suffering
An amount of ₹1,00,000/- was claimed. The Tribunal
granted an amount of ₹40,000/-. In the light of the injuries sustained
which include fracture of both bones left leg, I find that an amount of
₹60,000/- would be just and reasonable.
Loss/reduction in earning capacity
An amount of ₹5,00,000/- was claimed. The Tribunal
granted an amount of ₹83,160/-. It is submitted by the learned
counsel for the claim petitioner that as per Ext.X1 disability
certificate, the Medical Board had assessed the disability at 18.15%.
However, the Tribunal without any reasons reduced it to 9% which is
an infirmity committed by the Tribunal and which needs to be
rectified by this Court. It is submitted by the learned counsel for the
2nd respondent/insurer that in the light of the dictum in Raj Kumar v.
Ajay Kumar, (2011) 1 SCC 343 relied on by the Tribunal, there is
no scope for any interference.
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As per Ext.X1, the Medical Board has assessed the whole
body disability as 18.15%. As held by the Apex court in Raj Kumar
(Supra) it is the functional disability that needs to be taken into
account while assessing loss or reduction in earning capacity.
Admittedly, the claim petitioner was a driver, who sustained fracture
of both bones on his left leg. The injuries sustained would have
certainly affected his efficiency as a driver as segmental compound
fracture was caused to both bones on his left leg. Taking into account
the nature of his work and injuries sustained, the functional disability
can be taken to be 12%. Therefore, the amount to which he will be
entitled is ₹14,500/- x12x11x12/100=2,29,680/-.
Loss of amenitites
An amount of ₹1,00,000/- was claimed. No amount was
granted by the Tribunal which again is challenged. In the light of the
injuries sustained and the medical interventions undergone, an
amount of ₹25,000/- would be just and reasonable.
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10. The impugned Award is modified to the following
extent :
Sl. Head of claim Amount Amount Modified in
No. claimed Awarded by appeal
Tribunal
1 Loss of earning ₹1,00,000/- ₹10,000/- ₹87,000/-
(₹14,500/- x
6months)
2 Medical and ₹2,50,000/- ₹29,940/- ₹29,940/-
miscellaneous (No
expenses modification)
3 Bystander ₹2,000/- ₹9,750/- ₹15,600/-
expense (₹400/- x
39days)
4 Transportation ₹5,000/- ₹4,000/- ₹4,000/-
expenses (No
modification)
5 Extra ₹5,000/- ₹5,000/- ₹5,000/-
nourishment (No
modification)
6 Damage to 1,000/- ₹1,000/- ₹1,000/-
clothing etc (No
modification)
7 Pain and ₹1,00,000/- ₹40,000/- ₹60,000/-
suffering
8 Loss/reduction ₹5,00,000/- ₹83,160/- ₹2,29,680/-
in earning (₹14,500/-
capacity x12x11x12/100)
9 Loss of ₹1,00,000/- --- ₹25,000/-
amenities and
conveniences
Total ₹10,63,000/- ₹1,82,850/- ₹4,57,220/-
limited to
₹10,00,000/-
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In the result, the appeal is allowed by enhancing the
compensation by a further amount of ₹2,74,370/- (total compensation
₹4,57,220/-, that is, ₹1,82,850/- granted by the Tribunal +
₹2,74,370/- 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 2nd respondent/insurance company 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
