Kerala High Court
Lisy Joseph vs The Manager on 5 June, 2025
M.A.C.A.Nos.31 & 1134 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
MACA NO. 31 OF 2020
AGAINST THE AWARD DATED 26.06.2019 IN OP(MV)NO.493 OF
2017 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,
KALPETTA.
APPELLANT/2ND RESPONDENT:
THE NEW INDIA ASSURANCE CO.LTD.
BRANCH OFFICE, MANANTHAVADY,
SANJOSE BUILDING, NEAR ST. JOSEPH'S HOSPITAL,
MANANTHAVADY (PO), WAYANAD DISTRICT-670 645,
REPRESENTED BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, M.G.ROAD,
ERNAKULAM.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.K.S.SANTHI
SMT.LATHA SUSAN CHERIAN
RESPONDENTS/CLAIMANT & 1ST RESPONDENT:
1 LISY JOSEPH,
AGED 47 YEARS,
W/O.JOSEPH, ELITHADATHIL HOUSE,
ARUPATHU, MARAKKADAVU POST,
PADICHIRA VILLAGE,
SULTHANBATHERY TALUK,
WAYANAD DISTRICT-673 579.
M.A.C.A.Nos.31 & 1134 of 2020
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2 ARJESH K.C.,
AGED 31 YEARS,
S/O.JOY, KALAYAKUNNEL HOUSE, PUTHUSSERI POST,
VETTIYAMBATTA, KANJIRANGAD, MANANTHAVADY,
WAYANAD DISTRICT-670 645.
BY ADVS.
SMT.CELINE JOSEPH
SHRI.CHELSON CHEMBARATHY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 05.06.2025, ALONG WITH MACA.1134/2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos.31 & 1134 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
MACA NO. 1134 OF 2020
AGAINST THE AWARD DATED 26.06.2019 IN OP(MV)NO.493 OF
2017 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,
KALPETTA.
APPELLANT/PETITIONER:
LISY JOSEPH,
AGED 47 YEARS,
W/O. JOSEPH, ELITHADATHIL HOUSE, ARUPATHU,
MARAKKADAVU POST, PADICHIRA VILLAGE,
SULTHANBATHERY TALUK, WAYANAD DISTRICT - 673 579.
BY ADV SMT.CELINE JOSEPH
RESPONDENT/RESPONDENT NO.2:
THE MANAGER,
NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE,
MANANTHAVADY, SANJOSE BUILDING,
NEAR ST. JOSEPH'S HOSPITAL, MANANTHAVADY P. O.,
WAYANAD DISTRICT - 670 645.
BY ADV SHRI.P.K.BABU
ADV.SMT.LATHA SUSAN CHERIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 05.06.2025, ALONG WITH MACA.31/2020, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos.31 & 1134 of 2020
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C.S.SUDHA, J.
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M.A.C.A.Nos.31 & 1134 of 2020
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Dated this the 05th day of June 2025
JUDGMENT
These appeals under Section 173 of the Motor Vehicles
Act, 1988 (the Act) have been filed by the 2 nd respondent/insurer
challenging the medical expenses allowed by the Tribunal and the
claim petitioner aggrieved by the amount of compensation granted
by Award dated 26/06/2019 in O.P.(MV) No.493/2017 on the file
of the Motor Accidents Claims Tribunal, Kalpetta, (the Tribunal).
The respondents in MACA No.31/2020 are the petitioner and 1 st
respondent respectively in the original petition. The sole
respondent in MACA No.1134/2020 is the 2nd respondent in the
original 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 01/05/2017
at about 06:45 a.m. she was travelling as a pillion rider on
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motorcycle bearing registration No.KL-72-5171 from Puthussery
to Pulpally through Cherukattoor-Dasanakkara public road. When
the vehicle reached Anakuzhi Amalanagar at Cherukattoor, the
vehicle skidded due to the rash and negligent riding of 1 st
respondent/rider, whereby she fell down and sustained injuries. A
sum of ₹15,00,000/- was claimed as compensation under various
heads.
3. The 1st respondent/rider and the 2nd
respondent/insurer filed written statements admitting the existence
of a valid policy for the offending motorcycle. The 2 nd
respondent/insurer denied the validity of driving license of the 1st
respondent/rider.
4. Before the Tribunal, the claim petitioner was
examined as PW1 and Exts.A1 to A11 were marked. No oral
evidence was adduced by the side of the respondents. Ext.B1 was
marked on the side of the respondents. Ext.C1 is the Medical
Certificate issued by District Medical Board, Mananthavady,
Wayanad.
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5. The Tribunal on consideration of the oral and
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
₹11,45,900/- together with interest @ 8% 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.
6. 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.
7. Heard both sides.
Compensation for treatment and medicine
It is submitted by the learned counsel for the 2 nd respondent/insurer
that the Tribunal relying on Exts.A7 and A8, compensation under this
head was granted. However, Ext.A7 is only an invoice. The
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claim petitioner has not produced the actual bills, which itself
would show that in all probability she must have claimed
reimbursement from the Department concerned relating to the
expenditure incurred by her under this head. This submission is
opposed by the learned counsel for the claim petitioner who
submitted that there is absolutely no evidence to show that the
claim petitioner had claimed any reimbursement from any
Department(s) and therefore the Tribunal was right in accepting
Exts.A7 and A8 and granting necessary compensation.
The learned counsel for the claim petitioner draws my
attention to the seal affixed in all pages of Ext.A7 which says that
the payment was received by cash by the hospital. In addition to
this, when the claim petitioner was examined as PW1, she
reiterated her case in the box that she had paid the amounts
evidenced by Ext.A7 and that she had not claimed any
reimbursement from any Department(s) relating to the said
amount. This testimony of PW1 has not been discredited in any
way. That being the position, I find that the Tribunal was right in
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accepting Exts.A7 and A8 and granting compensation under this
head. Therefore, I find no grounds for interference regarding this
aspect. Hence, the appeal is liable to be dismissed.
It is submitted by the learned counsel for the claim
petitioner that the latter, a 45 year old lady, a coolie was earning
about ₹18,000/- per month. However, the Tribunal fixed the
notional income as ₹8,000/- which is quite low and hence requires
to be enhanced.
Though the claim petitioner alleged that as a Coolie she
was earning ₹18,000/- per month, there is no evidence in support of
the same. It is true that there cannot be any documentary evidence
to establish the same. Hence going by the dictum in
Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Company Ltd., (2011) 13 SCC 236, the notional
income of the claim petitioner is fixed at ₹11,000/- per month.
Loss of earnings
An amount of ₹5,61,600/- was claimed. The Tribunal
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granted an amount of ₹16,000/-. This is challenged to be on the
lower side. Ext.A6 discharge summary refers to the injuries
sustained they are:
"ACUTE EDH (RIGHT FRONTO-TEMPORO-PARIETAL)
DIFFUSE AXONAL INJURY GRADE III
CERVICAL CORD INJURY AND CONTUSION UPTO C4
LEFT SIDE PLEURAL EFFUSION"
The records reveal that she was hospitalized for a period of 41
days. She had also undergone treatment till about 03/06/2019. The
injuries sustained are apparently to the head. She also had to
undergo two surgeries. Therefore, in all probability she must have
been unable to work at least for a period of six months. Hence, she
is entitled to - ₹11,000/- x 6 months=₹66,000/-.
Compensation for pain and sufferings
In the light of the injuries undergone and medical
interventions to which she was subjected to, I find that an amount
of ₹70,000/- under this head would be just and reasonable.
Compensation for loss of earning power
An amount of ₹1,00,000/- was claimed. The Tribunal
granted an amount of ₹6,72,000/-. It is submitted by the learned
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counsel for the claim petitioner that 25% addition to the established
income was liable to be made in the light of Ext.C1 disability
certificate. Per contra, it is submitted by the learned counsel for
the 2nd respondent/insurer that going by the dictum in Raj Kumar
v. Ajay Kumar, 2011(1) SCC 343, the computation adopted by
the Tribunal is correct and therefore, no interference is called for.
Ext.C1 disability certificate reads thus:-
"1. Extra Dural Hematoma with diffuse axonal
injury.
2. Cervical Cord injury.
3. Left pleural effusion.
Treated at DM WIMS with Craniotomy and
evacuation of EDH, Tracheostomy on 6/5/17. (As
per available records) On examination, upper
limb grade IV power, Range of movement
shoulder 0-900. Hand grip partial. Elbow and
wrist Power Grade III, range of movement full.
On psychologic evaluation - No post traumatic
psychiatrict disability according to IDEAS."
(Emphasis supplied)
In the proof affidavit filed in lieu of chief examination, PW1 has
stated that due to the injuries caused it has become difficult for her
to carry on her avocation. This testimony is not seen discredited or
disputed in the cross-examination. This coupled with Ext.C1 would
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show that the movement of her limbs have been restricted and her
hand grip has become partial. The claim petitioner being a coolie,
the disabilities caused consequent to the injuries sustained would
certainly have resulted in affecting the efficiency of the work of the
claim petitioner and that must have certainly resulted in loss of
future earnings also. That being the position, I find that she would
be entitled to compensation under this head, that is, ₹11,000/-+
(25% x11,000/-) x 12x40/100x14=₹9,24,000/-.
8. The impugned Award is modified to the
following extent :
Sl. Head of claim Amount Amount Modified in
No. claimed Awarded appeal
by Tribunal
a Loss of ₹5,61,600/- ₹16,000/- ₹66,000/-
earning (₹11,000/- x
6months)
b Partial loss of Nil Nil Nil
earning (No
modification)
c Transport to ₹25,000/- ₹4,000/- ₹4,000/-
hospital (No
modification)
d Extra ₹1,00,000/- ₹10,000/- ₹10,000/-
nourishment (No
modification)
e Damage to ₹2,000/- ₹1,000/- ₹1,000/-
clothing and (No
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articles modification)
f Others:
(i)
Compensation
for the ₹7,00,000/- ₹3,50,593/- ₹3,50,593/-
treatment and (No
medicine modification)
(ii)
Compensation
for the future ₹3,00,000/- Nil Nil
treatment (No
expense modification)
(iii) ₹1,00,000/- ₹12,300/- ₹12,300/-
Bystanders (No
expenses modification)
g Compensation ₹2,00,000/- ₹40,000/- ₹70,000/-
for pain and
suffering
h Compensation ₹7,00,000/- Nil Nil
for continuing (No
or permanent modification)
disability, if
any
i Compensation ₹1,00,000/- ₹6,72,000/- ₹9,24,000/-
for loss of (₹11,000/-
earning power +11,000x25/10
0)x12x40/100x
Compensation ₹1,00,000/- ₹40,000/- ₹40,000/-
for the loss of (No
amenities in life modification)
Loss of ₹50,000/- Nil Nil
expectation of (No
life modification)
Physical and ₹50,000/- Nil Nil
mental shock (No
modification)
Inconvenience, ₹50,000/- Nil Nil
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hardship, (No
discomfort, modification)
disappointment,
frustration and
mental stress in
life
Total ₹30,38,600/- ₹11,45,893/- ₹14,77,893/-
claim is
limited to
₹15,00,000/-
In the result, MACA No.1134/2020 is allowed by
enhancing the compensation by a further amount of ₹3,32,000/-
(total compensation ₹14,77,893/-, that is, ₹11,45,893/- granted by
the Tribunal + ₹3,32,000/- 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 293 days delay in filing the
appeal) 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.
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In the result, M.A.C.A.No.31/2020 is dismissed and
M.A.C.A.No.1134/2020 is allowed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S. SUDHA
JUDGE
ak
