Kerala High Court

Asyaumma vs Shafeek on 18 June, 2025

                                                  2025:KER:43458

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

             THE HONOURABLE MRS. JUSTICE C.S. SUDHA

 WEDNESDAY, THE 18TH DAY OF JUNE 2025 / 28TH JYAISHTA, 1947

                      MACA NO. 775 OF 2020

        AGAINST THE AWARD DATED 16.08.2019 IN OPMV NO.935 OF

2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA

APPELLANT/PETITIONER:

           ASYAUMMA
           AGED 49 YEARS
           NADEPARAMBU, KAROOR, PURAKKADU P.O, AMBALAPPUZHA

           SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
           SRI.A.R.DILEEP
           SRI.P.J.JOE PAUL
           SRI.MANU SRINATH


RESPONDENTS/RESPONDENTS:

    1      SHAFEEK
           MADATHILPARAMBIL VEEDU, KAOOR MURI,
           PURAKKADU P O, AMBALAPPUZHA - 688561.

    2      NABEESA
           MADATHILPARAMBIL VEEDU, KAROOR MURI,
           PURAKKADU PO, AMBALAPPUZHA - 688561.

    3      THE ORIENTAL INSURANCE CO.LTD
           REPRESENTED BY ITS BRANCH MANAGER,
           BRANCH OFFICE, ALAPPUZHA - 688001.

           BY ADV SHRI.P.JACOB MATHEW
     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 18.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                                              2025:KER:43458
MACA NO. 775 OF 2020

                                      2



                             C.S.SUDHA, J.
             ----------------------------------------------------
                       M.A.C.A. No.775 of 2020
             ----------------------------------------------------
                Dated this the 18th day of June 2025

                           JUDGMENT

This appeal has been filed under Section 173 of the Motor

Vehicles Act, 1988 (the Act) by the claim petitioner in O.P.(MV)

No.935/2011 on the file of the Motor Accidents Claims Tribunal,

Alappuzha, (the Tribunal), aggrieved by the amount of

compensation granted by Award dated 16/08/2019. The respondents

herein are respondents 1 to 3 respectively 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 23/01/2010 while

she was travelling in autorickshaw bearing registration

no.KL4W2015 driven by the first respondent through the

Ambalappuzha-Karoor road, the latter in a rash and negligent

manner applied brake, as a result of which the autorickshaw 2025:KER:43458 MACA NO. 775 OF 2020

overturned and she sustained grievous injuries. A sum of

₹2,50,000/- 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 in respect of the offending

vehicle but denied negligence on the part of the first

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 and PW2 were examined and

Exts.A1 to A14 and Ext.X1 were marked on the side of the claim

petitioner. RW1 was examined 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 first respondent/driver of the offending 2025:KER:43458 MACA NO. 775 OF 2020

vehicle resulting in the incident and hence awarded an amount of

₹1,77,212/- together with interest @ 9% per annum from the date

of the petition till realisation along 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 lady aged 40 years, at the time of the incident was

earning an amount of ₹7,000/- per month as a prawn peeler.

However, the Tribunal fixed the notional income at ₹4,000/- under

the mistaken premise that no documents had been produced to 2025:KER:43458 MACA NO. 775 OF 2020

substantiate the same. The learned counsel draws my attention to

Ext.A12, which is copy of the passbook of the claim petitioner

issued by the Kerala Fisheries Welfare Board. In Ext.A12, it was

specifically stated that the claim petitioner is engaged in peeling

and therefore the conclusion of the Tribunal that there is no

evidence is apparently wrong, goes the argument. It is also

submitted that going by the dictum in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Co. Ltd, (2011)

13 SCC 236, the notional income of even a coolie was liable to be

fixed at ₹7,500/-. Hence, the same may be appropriately enhanced.

Per contra, it is submitted by the learned counsel for the third

respondent/insurer that only an amount of ₹7,000/- was claimed in

the petition and if at all this Court is inclined to enhance the

notional income, the same may be fixed at ₹7,000/- as claimed in

the petition.

The fact that the claim petitioner was a prawn peeler is

established by Ext.A12. Therefore, the conclusion that has been 2025:KER:43458 MACA NO. 775 OF 2020

arrived at by the Tribunal that there is no evidence to substantiate

her claim regarding her avocation is apparently incorrect. In the

facts and circumstances of the case, I find that an amount of

₹7,500/- can be fixed as the notional income of the claim petitioner,

which would be just and reasonable.

Loss of earnings

The materials on record show that the following injuries were

sustained by the claim petitioner:

"1) lacerated wound 3x2 cm over Lt eyebrow.

2) fracture Rt humerus with radial nerve palsy.

3) vertigo

4) head injury"

The claim petitioner was hospitalized for a period of 49 days.

Therefore, taking into account the nature of injuries sustained

which includes a fracture and the period of hospitalization

undergone by her, I find that, in all probability, she might have been

unable to work for a period of at least 6 months. Therefore, she can

be granted compensation towards loss of earnings for a period of 6 2025:KER:43458 MACA NO. 775 OF 2020

months, which is ₹45,000/- (7,500 x 6).

Compensation for pain and sufferings

It is pointed out that though an amount of ₹45,000/- was

claimed under this head, the Tribunal has granted an amount of

₹20,000/- only. This again is challenged. In the light of the injuries

sustained which includes a fracture also, I find that an amount of

₹35,000/- under this head would be just and reasonable.

Compensation for loss of amenities in life

It is pointed out that though an amount of ₹30,000/- was

claimed under this head, the Tribunal has granted an amount of

₹25,000/- only. In the light of the injuries sustained by the claim

petitioner, I find that an amount of ₹30,000/- as claimed under this

head would be just and reasonable.

Percentage of disability

The Tribunal relying on Ext.X1 took the disability of the

claim petitioner as 12%. The learned counsel for the claim

petitioner submits that in the light of the disability sustained, the 2025:KER:43458 MACA NO. 775 OF 2020

functional disability needs to be taken into account. Therefore, the

disability percentage that has been fixed by the Tribunal needs to be

enhanced. Per contra, it is submitted by the learned counsel for the

third respondent/insurer that there is no infirmity committed by the

Tribunal as it has accepted the disability certificate issued by the

Medical Board.

Ext.X1 reads thus:

"This is to cerify that we, the members of the Medical Board constituted for examining and assessing the ability/state of health/earning capacity have examined Asya Umma, w/o.Ibrahim Kutty, Nadeparambu veedu, Karoor, Purakkad, Ambalapuzha who is directed by the MACT III Alappuzha as per ref. cited and found that he/she is having h/o RTA on 23/01/2010 sustained #SOH (R) with Radial Nerve injury. Ref. 1. Discharge cards (3)

2. Treatment certificate

3. X-rays :- shows malunited #SOH(R) with implant in situ. Post traumatic stiffness of (R)Elbow, (R) Head with weak grip and grip strength.

2025:KER:43458 MACA NO. 775 OF 2020

OPINION As a result of the above, the Board is of opinion that the above person is having 12% (Twelve percentage) permanent partial disability."

In the light of the disability caused due to the incident, I find

that percentage of functional disability being taken as 12% is

reasonable and I do not find any reasons to interfere with the same.

10. 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 ₹) ₹) PART - I a Transport to 10,000/- 4,000/- 4,000/-

hospital and back (No Modification) b Expenses for 40,000/- 15,572/- 15,572/-

      treatment and                                       (No Modification)
      medicine
 c    Damage to              1,000/-         1,000/-           1,000/-
      clothing and                                        (No Modification)
      articles
 d    Bystander             10,000/-         5,000/-           5,000/-
      expenses                                            (No Modification)
 e    Expenses for extra    10,000/-         10,000/-         10,000/-
      nourishment                                         (No Modification)
                                                              2025:KER:43458
MACA NO. 775 OF 2020





 f    Loss of earnings      96,000/-          16,000/-          45,000/-
                                             (4000 x 4)        (7,500 x 6)
                                 PART - II
 g    Compensation for     45,000/-           20,000/-          35,000/-
      pain & sufferings
 h    Compensation for      60,000/-           80,640/-         1,51,200/-
      permanent                             (4,000 x 12 x   (7,500 x 12 x 14 x
      disability &                          14 x 12/100)         12/100)
      consequential loss
      of earning power
 i    Compensation for     30,000/-           25,000/-          30,000/-
      loss of amenities
      in life
     Total                 3,02,000/-        1,77,212/-        2,96,772/-
                           limited to
                           2,50,000/-

In the result, the appeal is allowed by enhancing the

compensation by a further amount of ₹1,19,560/- (total

compensation ₹2,96,772/- that is, ₹1,77,212/- granted by the

Tribunal plus ₹1,19,560/- 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 2025:KER:43458 MACA NO. 775 OF 2020

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