Kerala High Court
T.J.Francis vs Beena O on 17 June, 2025
M.A.C.A.No.866 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 17TH DAY OF JUNE 2025 / 27TH JYAISHTA, 1947
MACA NO. 866 OF 2020
AGAINST THE AWARD DATED 25/04/2019 IN OPMV NO.1278 OF
2015 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,
THIRUVANANTHAPURAM.
APPELLANT/PETITIONER:
T.J.FRANCIS,
AGED 63 YEARS,
S/O.THARUKARA JOSEPH,
TC 513/1, ARCADE APARTMENT,
THARA-233, VANCHIYOOR,
THIRUVANANTHAPURAM, PIN - 695 035.
BY ADVS.
SHRI.BIJU BALAKRISHNAN
SMT.V.S.RAKHEE
SMT.K.J.GISHA
SMT.SAYUJYA RADHAKRISHNAN
RESPONDENTS/RESPONDENTS:
1 BEENA O.,
W/O.SURESHKUMAR, 386 (17/645),
KADAYIL VEEDU, (PUNCHIRI VEEDU),
THACHAPALLI, POTHENCODE, KUDAVOOR P.O.,
THIRUVANANTHAPURAM - 695 313.
2 SREEJITH V.S.,
S/O.VELAPPAN N.,
THIKKINAPURATHU VEEDU, AYIROORPRA,
KATTAYIKONAM P.O., THIRUVANANTHAPURAM,
PIN - 695 584.
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3 THE UNITED INDIA INSURANCE CO.LTD.,
DIVISIONAL OFFICE, MALANKARA BUILDING,
PALAYAM, THIRUVANANTHAPURAM - 695 034.
REPRESENTED BY ITS MANAGER.
4 KISHORE KUMAR R.S.,
S/O.RAJAPPAN, TC 77/843,
KAVADI VEEDU, MOONNAM MANACKAL,
PETTAH P.O., THIRUVANANTHAPURAM - 695024.
5 THE NEW INDIA ASSURANCE CO.LTD.,
THE MOTOR 3RD PARTY CLAIMS HUB,
GOVT. PRESS ROAD, PULIMOODU,
STATUE, THIRUVANANTHAPURAM - 695001
REPRESENTED BY ITS MANAGER.
BY ADV SHRI.P.K.MANOJKUMAR, SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 17.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.866 of 2020
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C.S.SUDHA, J.
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M.A.C.A.No.866 of 2020
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Dated this the 17th 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.1278/2015 on the file of the Motor Accidents Claims Tribunal,
Thiruvananthapuram, (the Tribunal), aggrieved by the amount of
compensation granted by Award dated 25/04/2019. 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 04/02/2015
at about 09:30 p.m., while he was riding his motorcycle bearing
registration No.KL-01/AJ-3436 through the Vanchiyoor-General
Hospital road, and when he reached the place near General
Hospital Junction, tempo traveler bearing registration No.KL-
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22/C-7650 driven by the second respondent in a rash and negligent
manner knocked him down as a result of which he sustained
grievous injuries. An amount of ₹3,00,000/- was claimed as
compensation under various heads.
3. The first respondent/owner and the second
respondent/driver remained ex parte.
4. The third respondent/insurer filed written
statement admitting the policy but denying negligence on the part
of the second respondent/driver. 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 A10 were marked on the side of
the claim petitioner. No documentary evidence was adduced by the
respondents.
6. The Tribunal on consideration of the
documentary evidence and after hearing both sides, found
negligence on the part of the second respondent/driver of the
offending vehicle resulting in the incident and hence awarded an
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amount of ₹1,72,350/- 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.
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 by the claim petitioner-
Notional income
It is submitted by the learned counsel for the claim
petitioner that the latter, a man aged 59 years was a Care Taker
earning an amount of ₹9000/- per month. However, the Tribunal
fixed the notional income at ₹7,500/- only, which is quite low even
compared to the notional income to which a coolie is entitled to.
There is no evidence to substantiate the claim that he was
working as a Care Taker. In the light of the dictum in
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Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Co. Ltd., (2011) 13 SCC 236, I find that the notional
income of the claim petitioner can be fixed at ₹10,000/- per month.
Loss of earnings
The materials on record reveal that the claim petitioner
sustained the following injuries:-
"1. Fracture clavicle left. Managed by
clavicle brace.
2. Fracture scapula
3. Fracture 3rd, 5th and 6th ribs left Major surgery
for ICD Insertion Done Left Side of Chest."
He was hospitalized for a period of 8 days. In the light of
the injuries sustained, the period of hospitalization and the surgery
undergone, I find that in all probability he might have been unable
to work for a period of 6 months. Therefore, the compensation
under this head would be ₹10,000/- x 6 months= ₹60,000/-
Percentage of disability
It is quite persuasively argued by the learned counsel for
the claim petitioner that though Ext.A10 disability certificate
shows that the claim petitioner has sustained 18% disability, the
Tribunal without any reasons has scaled down the disability to
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11%. It is also submitted that Ext.A10 has been accepted in
evidence without any objection from the third respondent/insurer
and so the Tribunal committed a gross mistake/error in scaling
down the percentage of disability. In support of her argument she
relies on the dictum in Manikantan G. v. K. Janardhanan Nair,
2021 (5) KHC 305.
The Apex Court in Raj Kumar v. Ajay Kumar, (2011)1
SCC 343 followed in Anthony Swami v. M.D., KSRTC, (2020)7
SCC 161 held that where the claimant suffers a permanent
disability as a result of injuries, the assessment of compensation
under the head of loss of future earnings, would depend upon the
effect and impact of such permanent disability on his earning
capacity. The Tribunal should not mechanically apply the
percentage of permanent disability as the percentage of economic
loss or loss of earning capacity. What requires to be assessed by
the Tribunal is the effect of the permanently disability on the
earning capacity of the injured; and after assessing the loss of
earning capacity in terms of a percentage of the income, it has to
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be quantified in terms of money, to arrive at the future loss of
earnings (by applying the standard multiplier method used to
determine loss of dependency).
Therefore, it is the functional disability that needs to be
taken into account and not the whole body disability. Ext.A10
certificate reads thus:
"Permanent Disability Certificate
Mr.Francis T.J. aged 63 yrs, residing at TC 513/1, Arcade
Apartment, Thara, 233. Vanchiyoor, Trivandrum was admitted
in Trivandrum Medical College with IP No.93697/15 on 5/2/15
following an alleged h/o road traffic accident on 3/2/2015. He
sustained the following injuries due to the accident.
1. Fracture 1,2,3,4,5 Ribs Lt chest
2. Fracture Lt clavicle
3. Lung Injury due to fracture ribs
4. Intramuscular emphysema in the paratracheal region
5. Pneumomediastinum
6. Pneumothorax
7. Left lower lobe collapse consolidated of lung
Emergency Thoracotomy and insertion of ICD done/
Discharged on 13/2/15.
We examined him in the Surgery OP in Trivandrum
Medical College on 22/11/2018 with OP No.3008/18 and he has
the following permanent disabilities.
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1. Chronic chest pain.
2. Difficulty in breathing
3. Difficulty in lifting weight with Lt hand
4. Chronic pain in the back
5. Recurrent chest infection
6. Difficulty in turning from one side of other
7. Deformity of chest
With reference to the Mc Bride's scale he has 18% (Eighteen
percent) permanent disabilities... ... ..."
In the light of Ext.A10 and the dictum in Raj Kumar (Supra) I
find that the Tribunal has rightly fixed the disability at 11% and
therefore it does not require any interference.
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 ₹54,000/- ₹30,000/- ₹60,000/-
earnings (₹10,000/-x6
months)
2 Transport to ₹5,000/- ₹2,000/- ₹2,000/-
hospital (No modification)
3 Extra ₹3,000/- ₹2,000/- ₹2,000/-
nourishment (No modification)
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4 Damages to ₹1,000/- ₹500/- ₹500/-
clothings and (No modification)
other personal
articles
5 Cost of ₹10,000/- Nil Nil
Medicines & (No modification)
Hospital
Expenses
6 Bystander ₹12,000/- ₹2,000/- ₹2,000/-
expenses (No modification)
7 Compensation ₹10,000/- ₹20,000/- ₹20,000/-
for Pain and (No modification)
sufferings
8 Compensation ₹1,00,000/- ₹89,100/- ₹1,18,800/-
for permanent (₹10,000/-
or continued x12x9x11/100)
disability
12 Compensation ₹50,000/- Nil Nil
for the loss of (No modification)
future earning
power
13 Compensation ₹50,000/- ₹26,750/- ₹26,750/-
for deprival of (No modification)
amenities in
life
Total ₹3,25,000/- ₹1,72,350/- ₹2,32,050/-
Limited to
₹3,00,000/-
In the result, the appeal is allowed by enhancing the
compensation by a further amount of ₹59,700/- (total
compensation ₹2,32,050/-, that is, ₹1,72,350/- granted by the
Tribunal + ₹59,700/- granted in appeal) with interest at the rate of
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8% per annum from the date of petition till the date of realization
(excluding the period of 142 days representation delay in filing the
appeal) 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 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
