Kerala High Court
Anugraha Baby vs Babu T on 11 June, 2025
2025:KER:40515
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M.A.C.A.No.404 of 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 11TH DAY OF JUNE 2025 / 21ST JYAISHTA, 1947
MACA NO. 404 OF 2020
AGAINST THE COMMON AWARD DATED 04.09.2019 IN OP(MV)
NO.508 OF 2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,THODUPUZHA
APPELLANT/PETITIONER:
ANUGRAHA BABY,
AGED 18 YEARS
D/O. BABY THOMAS, KOLLIKKALAIL HOUSE,
PANDIPPARA KARA, THANKAMONY VILLAGE, PANDIPPARA,
IDUKKI-685515.
BY ADV SRI.DINNY THOMAS
RESPONDENTS/RESPONDENTS:
1 BABU T.,
S/O. THANKAPPAN, VAZHAVILA HOUSE, THANKAMONY KARA,
THANKAMONY VILLAGE, IDUKKI-685609. (DRIVER)
2 ARUNKUMAR T.T.,
THAKIDIYEL HOUSE, KANCHIYAR P.O., KALTHOTTY,
KANCHIYAR, IDUKKI-685511 (OWNER)
3 THE NEW INDIA ASSURANCE CO. LTD.,
REPRESENTED BY ITS DIVISIONAL MANAGER,
KOTTAYAM-686002 (INSURER)
BY ADV SHRI.LAL K.JOSEPH, SC, NEW INDIA ASSURANCE
COMPANY LTD.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN COME UP FOR
FINAL HEARING ON 09.06.2025, THE COURT ON 11.06.2025
DELIVERED THE FOLLOWING:
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2
M.A.C.A.No.404 of 2020
C.S.SUDHA, J.
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M.A.C.A.No.404 of 2020
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Dated this the 11th 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.508/2016 on the file of the Motor Accidents Claims Tribunal,
Thodupuzha, (the Tribunal), aggrieved by the amount of
compensation granted by Award dated 04/09/2019. The respondents
herein are the respondents in the original petition. In this appeal, the
parties and the documents will be referred to as described in the
original petition.
2. The claim petitioner is a minor girl aged 15 years.
According to the claim petitioner, on 16/12/2015 at about 01:15
p.m., while she was travelling from Thankamani to Ettikkavala in
autorickshaw bearing registration no.KL-37/A-9002 and when the
autorickshaw reached near the convent at Ettikkavala, it collided
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with a lorry which came from the opposite direction. The
autorickshaw turned turtle as a result of which she sustained
grievous injuries. The accident occurred only due to the rash and
negligent driving of the autorickshaw by the first respondent. A sum
of ₹4,50,000/- was claimed as compensation under various heads.
3. The first respondent driver and the second respondent
owner remained ex parte.
4. The third respondent/insurer filed written statement
admitting the existence of a valid policy. However it was contended
that the driver of the autorickshaw at the time of the accident, was
not holding a valid driving licence. Hence the insured had violated
the policy conditions.
5. Before the Tribunal, no oral evidence was adduced by
either side. Exts.A1 to A7 were marked on the side of the claim
petitioner. Ext.B1 was marked on the side of the third respondent.
6. The Tribunal on consideration of the documentary
evidence and after hearing both sides, found that the accident
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occurred due to the rash and negligent driving of the first
respondent/driver of the autorickshaw and hence awarded an amount
of ₹1,45,500/- together with interest @ 7.5% per annum from the
date of the petition till realisation from the third respondent insurer
along with proportionate costs. Aggrieved by the Award, the claim
petitioner has come up in appeal seeking enhancement of the
compensation.
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 are challenged :
Permanent disability
It is submitted by the learned counsel for the claim petitioner
that the Tribunal erred in granting compensation as per the dictum in
Master Mallikarjun v. Divisional Manager, National Insurance
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Co. Ltd., (2014) 14 SCC 396 : AIR 2014 SC 736 : 2013 KHC
4670. The claim petitioner was aged 14 years at the time of the
incident. Due to the incident, permanent disability of 40% has been
caused and hence the multiplier system of computing compensation
required to be adopted. In support of the argument, reference was
made to the dictums in Kajal v. Jagdish Chand, (2020) 4 SCC
413 : AIR 2020 SC 776 ; Master Ayush v. Branch Manager,
Reliance General insurance Company Limited, (2022) 7 SCC 738
and two unreported decisions of this Court dated 05/02/2025 in
M.A.C.A.No.301/2021 (Ayana v. National Insurance Company
Ltd.) and in M.A.C.A.No.3132/2017 dated 13/02/2025 (Bimal v.
Raju P.Joy). Per contra it is submitted by the learned counsel for
the third respondent/insurer that the dictums in Kajal and Master
Ayush (Supra) cannot be applied to the case on hand as the facts are
completely different. It was also pointed out that the dictum in
Master Mallikarjun (Supra) still holds good and in support of the
said argument, relied on the judgment of the Apex court dated
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30/04/2025 in SLP(C)No.17267/2024 (Rina Rani Mallick v. Susim
Kanti Mohanty). My attention was also drawn to Schedule I of the
Employee's Compensation Act, 1923, as per which the percentage of
loss of earning capacity in a case of loss of partial vision of one eye
has been fixed as 10%. Therefore it was submitted that no infirmity
has been committed by the Tribunal calling for an interference by
this Court.
9.1. In Kajal (Supra) a young girl suffered serious injuries
resulting in damage to her brain. According to the medical report
produced, due to the head injury sustained she was left with a very
low IQ and severe weakness in all her four limbs. She had severe
hysteria and urinary incontinence. Her disability was assessed as
100%. One of the members of the Medical Board who had issued
the disability certificate deposed before the Tribunal that as per the
assessment done, her I.Q. was less than 20% of a child of her age
and her social age was only of a 9 month old child. This meant that
Kajal while lying on the bed would grow up to be an adult with all
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the physical and biological attributes which a woman would get on
attaining adulthood, including menstruation etc., but her mind would
remain of a 9 month old child and she would never understand what
was happening all around her. Hence, in such circumstances, it was
held that it was a case where departure had to be made from the
normal rule as the pain and suffering suffered by the child was such
that no amount of compensation would be able to compensate it.
9.2. In Master Ayush (Supra), the victim was a 5 year old
child who was rendered paraplegic due to the accident after having
suffered grievous injuries. He was unable to move both his legs and
had complete sensory loss in both legs, urinary incontinence, bowel
constipation and bed sores. He had lost his childhood and was
dependent on others for his routine work. Hence compensation was
accordingly granted.
9.3. In the judgment dated 05/02/2025 in
M.A.C.A.No.301/2021 [Ayana (Supra)], a learned Single Judge of
this Court has adopted the multiplier system, taking a deviation from
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the dictum in Master Mallikarjun (Supra). The nature of injuries
sustained is not clear from the judgment. In judgment dated
13/02/2025 in M.A.C.A.No.3132/2017 [Bimal (Supra)] also, a
learned Single Judge of this Court has adopted the multiplier system.
However in the said case, the left leg of a 11 year old child had to be
amputated below the knee.
10. The dictums in the aforesaid cases cannot be applied to
the facts of the present case as the injury involved in this case, as
revealed from the materials on record is an injury to the eye which is
stated to be right eye open globe injury as revealed by Ext.A2 wound
certificate. The fact that the dictum in Master Mallikarjun
(Supra) still holds good, is evident from the judgment of the Apex
Court dated 30/04/2025 in SLP(C)No.17267/2024 [Rina Rani
Mallick (Supra)] relied on by the third respondent/insurer.
Moreover, as pointed out by the learned counsel for the third
respondent/insurer, serial no.26-A in Schedule I of the Employee's
Compensation Act, 1923 says that in cases of loss of partial vision of
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one eye, the percentage of loss of earning capacity should be taken
as 10%.
11. Going by Ext.A6 disability certificate issued by the
District Medical Board-II, Idukki, the permanently disability (visual)
has been assessed as 40%. A reading of the impugned Award shows
that Ext.A6 was never challenged or disputed before the Tribunal.
That being the position, Ext.A6 disability certificate can be taken to
be the basis for fixing the permanent disability caused to the claim
petitioner. Going by the dictum in Master Mallikarjun (Supra), in
cases where the disability is above 30% and upto 60%, the amount of
compensation to be awarded is ₹4 lakhs. That being the position, I
find that the claim petitioner is entitled to be granted an amount of
₹4 lakhs towards compensation for permanent disability.
12. The impugned Award is modified to the following extent:
Sl. Head of claim Amount Amount Modified in appeal
No. claimed (in ₹) Awarded by (in ₹)
Tribunal (in ₹)
1. Transport to 15,000/- 10,000/- 10,000/-
hospital (No modification)
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2. Extra 5,000/- 2,000/- 2,000/-
nourishment (No modification)
3. Damage to 500/- 500/- 500/-
clothing and (No modification)
articles
4. Hospital and 50,000/- 30,000/- 30,000/-
treatment (No modification)
expenses
5. Bystanders 5,000/- 3,000/- 3,000/-
expenses (No modification)
6. Future treatment 25,000/- Not allowed Not allowed
expenses (No modification)
7. Compensation 2,00,000/- 1,00,000/- 4,00,000/-
for continuing or
permanent
disability
8 Compensation for 50,000/- Covered by Sl. Covered by Sl.
pain and suffering No.7 No.7
(No modification)
9 Compensation 50,000/- Covered by Sl. Covered by Sl.
for loss of No.7 No.7
amenities (No modification)
10 Compensation 50,000/- Covered by Sl. Covered by Sl.
for the loss of No.7 No.7
future prospects (No modification)
Total Limited to ₹1,45,500/- ₹ 4,45,500/-
₹4,50,000/-
In the result, the appeal is allowed by enhancing the
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compensation by a further amount of ₹3,00,000/- (total
compensation is ₹4,45,500/-, that is, ₹1,45,500/- granted by the
Tribunal + ₹3,00,000/- 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 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 petitioners 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
ami/
