Kerala High Court
Prince vs United India Insurance Company Limited on 18 June, 2025
M.A.C.A.No.801 of 2020 and Cross Objection No.53 of 2020
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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. 801 OF 2020
AGAINST THE AWARD DATED 15.10.2019 IN OPMV NO.1835 OF
2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM.
APPELLANT/2ND RESPONDENT:
UNITED INDIA INSURANCE COMPANY LTD.
CHINNAKADA, KOLLAM,
REPRESENTED BY ITS ADMINISTRATIVE OFFICER,
A.SHOBHA, UNITED INDIA INSURANCE CO.LTD.,
REGIONAL OFFICE, SHARANYA,
HOSPITAL ROAD, KOCHI - 682011.
BY ADV SRI.S.K.AJAY KUMAR
RESPONDENTS/PETITIONER & 1ST RESPONDENT:
1 PRINCE,
AGED 28 YEARS,
SON OF PRABHAKARAN, VALIYA VEETTIL MELATHIL,
VEEDU, NELLICODE, OTTOOR, VADASSERIKONAM P.O.,
VARKALA NOW RESIDING AT ASWATHY BHAVAN,
THRIKKOVILVATTOM, MUKHATHALA, KOLLAM - 691577.
2 SWARAJ S.
AGE NOT KNOWN, SON OF ASHOKAN, B.L.HOUSE,
THANNIMOODU, CHERUNNIYOOR, VARKALA,
THIRUVANANTHAPURAM - 695 142.
BY ADVS. SRI.K.SIJU
SRI.G.RADHAKRISHNAN
SMT.ANJANA KANNATH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
18.06.2025, ALONG WITH CO.53/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
M.A.C.A.No.801 of 2020 and Cross Objection No.53 of 2020
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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
CO NO. 53 OF 2023
AGAINST THE AWARD DATED 15.10.2019 IN MACA NO.801 OF 2020
OF HIGH COURT OF KERALA
CROSS OBJECTOR/1ST RESPONDENT/CLAIMANT:
PRINCE,
AGED 28 YEARS,
SON OF PRABHAKARAN, VALIYA VEETTIL MELATHIL, VEEDU,
NELLICODE, OTTOOR, VADASSERIKONAM P.O., VARKALA NOW
RESIDING AT ASWATHY BHAVAN, THRIKKOVILVATTOM,
MUKHATHALA, KOLLAM - 691577.
BY ADVS.
SRI.K.SIJU
SMT.ANJANA KANNATH
RESPONDENTS/APPELLANT & 2ND RESPONDENT/RESPONDENTS:
1 UNITED INDIA INSURANCE COMPANY LTD.
CHINNAKADA, KOLLAM REPRESENTED BY ITS ADMINISTRATIVE
OFFICER, A.SHOBHA, UNITED INDIA INSURANCE CO.LTD.,
REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI -
682011.
2 SWARAJ S.
AGE NOT KNOWN, SON OF ASHOKAN, B.L.HOUSE,
THANNIMOODU, CHERUNNIYOOR, VARKALA,
THIRUVANANTHAPURAM - 695 142.
BY ADVS.
SRI.S.K.AJAYAKUMAR
SRI.G.RADHAKRISHNAN
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY
HEARD ON 18.06.2025, ALONG WITH MACA.801/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.801 of 2020 and Cross Objection No.53 of 2020
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2025:KER:42706
C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.No.801 of 2020
&
Cross Objection No. 53 of 2023
----------------------------------------------------
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 second respondent in
O.P.(MV) No.1835/2016 on the file of the Motor Accidents
Claims Tribunal, Kollam (the Tribunal), aggrieved by the Award
dated 15/10/2019. The respondents herein are the claim
petitioner and the first respondent respectively in the petition.
Cross Objection 53 of 2023 has been filed by the claim petitioner
in O.P.(MV) No.1835/2016, who is the first respondent in the
appeal. The parties and the documents will be referred to as
described in the original petition.
2. According to the claim petitioner, on
24/05/2015 at 01:30 p.m., while the claim petitioner was riding
M.A.C.A.No.801 of 2020 and Cross Objection No.53 of 2020
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his motorcycle bearing registration No.KL-16-M-8530 through
Cheruniyoor - Palachira road, motorcycle bearing registration
no.KL-16-J-1777 driven by the first respondent in a negligent
manner knocked him down, as a result of which he sustained
grievous injuries.
3. The first respondent-rider of the offending
vehicle remained ex parte.
4. The second respondent/insurer filed written
statement disputing the negligence attributed against the first
respondent. The amount of compensation claimed was contended
to be excessive.
5. Before the Tribunal, the claim petitioner was
examined as PW1 and Exts.A1 to A14 and Ext.X1 were marked.
No oral or documentary evidence was adduced by the second
respondent.
6. The Tribunal on consideration of the oral and
documentary evidence and after hearing both sides, found
M.A.C.A.No.801 of 2020 and Cross Objection No.53 of 2020
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negligence on the part of the first respondent-rider of the
offending vehicle resulting in the incident and hence awarded an
amount of ₹61,49,500/- together with interest @ 8% per annum
from the date of the petition till realisation along with
proportionate costs. Aggrieved by the Award, the second
respondent/insurer 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. It was submitted by the learned counsel for the
second respondent/insurer that in the light of the refer report filed
in Crime No.1347/2015, Varkala police station and Annexure -A1
FIR dated 25/09/2021 in O.P.(MV) No.750/2016 and O.P(MV)
No.1716/2016 on the file of the Motor Accidents Claims
Tribunal, Attingal, it can be seen that the claim petitioner herein
was negligent and hence in an application under Section 166 of
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the Act, when negligence is found on the claim petitioner and not
on the first respondent/rider of the alleged offending vehicle, the
insurer has no liability to pay any compensation.
9.1. Per contra, it was submitted by the learned
counsel for the claim petitioner that in the light of the refer report
filed by the investigating officer in the crime, the claim petitioner
examined himself as PW1 and proved negligence of the first
respondent/rider of the offending vehicle. The testimony of PW1
has not been disproved or discredited in any way and hence there
is no infirmity committed by the Tribunal in arriving at a
conclusion that negligence was on the part of the first
respondent/rider.
10. As noticed earlier, there are two vehicles
involved in the incident, one ridden by the claim petitioner herein
and the other by the first respondent along with a pillion rider.
Admittedly, the final report filed in the crime states that the
incident was purely accidental in nature without there being
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negligence on the part of any of the riders. In the light of the
report, the claim petitioner herein examined himself as PW1 to
prove negligence of the 1st respondent. In the proof affidavit
filed in lieu of chief examination, he describes the manner in
which the incident occurred and that the incident occurred due to
the rash and negligent driving of the first respondent rider. This
aspect of his testimony is not seen cross examined, disproved or
discredited by the second respondent/insurer. Hence, the
Tribunal on the basis of the testimony of PW1, found negligence
on the part of the first respondent/rider and so proceeded to pass
the impugned Award.
11. I.A.No.2/2024 filed by the 2nd
respondent/insurer to receive Annexure-A1 common Award in
O.P.(MV)Nos.750/2016 and 1716/2016 on the file of the Motor
Accidents Claims Tribunal, Attingal, is allowed. In Annexure
-A1 Award, the rider and the pillion rider of the offending vehicle
herein are the claimants. In the light of the refer report, the
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claimants therein examined themselves as PWs.1 and 2 and
claimed that it was the claim petitioner herein who was negligent
in riding his vehicle, which resulted in the incident. PW1 and
PW2 therein are seen examined before the Tribunal concerned on
25/03/2021 and 29/03/2021 respectively, which is apparently
after the claim petitioner in this case had adduced evidence before
the Tribunal concerned on 10/07/2019. On the basis of the said
testimony, the impugned Award in this case was passed on
15/10/2019. Annexure-A1 Award is seen passed on 25/09/2021,
which is more than two years after the Award in this case was
passed. The second respondent/insurer had contested Annexure-
A1 case also. But they never seem to have brought the impugned
Award in this case to the notice of the Tribunal, which they ought
to have done. However, for reasons best known to the second
respondent/insurer, the same has not been done. In such
circumstances, I find no infirmity in the Tribunal arriving at a
finding based on the testimony of PW1, the claim petitioner
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herein, which has not been disproved or discredited in any
manner that the first respondent rider was rash and negligent in
driving resulting in the incident.
12. The award of compensation by the Tribunal
under the following heads are challenged -
Loss of earnings
It was submitted by the learned counsel for the second
respondent/insurer that an amount of ₹2 lakhs only was claimed.
However, the Tribunal granted ₹32,40,000/-. In addition, an
amount of ₹25,92,000/- has been granted as compensation for
continuing or permanent disability. This could not have been
done as it is against the settled principles.
Ext.A8 wound certificate shows that following are the
injuries sustained by the claim petitioner -
Type II compound segmental fracture SO of right and
communated fracture to right tibia.
Type III compound fracture to metatarsal 2, 4 & 5.
M.A.C.A.No.801 of 2020 and Cross Objection No.53 of 2020
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Tibial skeletal traction was applied during the course of
treatment.
He was hospitalised for a period of 58 days and had to undergo
several surgeries. Ext.A9 will show that cast was applied on
22/10/2015. Therefore, in all probability he might have been
unable to work for at least for a period of 18 months. Therefore,
towards loss of earnings, he would be entitled to an amount of
₹15,000/- x 18 months = ₹2,70,000/-
Compensation for pain and sufferings
An amount of ₹1,00,000/- was claimed. The Tribunal
has granted an amount of ₹85,000/- under this head. In the light
of the injuries and the medical interventions he had to undergo, I
find that an amount of ₹95,000/- would be just and reasonable.
Bystander's expenses
An amount of ₹23,000/- was claimed. However, no
amount is seen awarded by the Tribunal. In the light of the long
period of hospitalisation and the subsequent treatment and in the
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light of the injuries, I find that a consolidated amount of
₹1,00,000/- can be awarded under this head.
Disfiguration and loss of marriage prospects
The claim petitioner was a 24 year old welder at the time
of the incident. Ext.A13 photographs show the disfiguration
caused due to the injuries sustained in the incident. No amount is
seen granted under this head. Therefore, I find an amount of
₹1,50,000/- under this head would be just and reasonable.
13. 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 ₹2,00,000/- ₹32,40,000/- ₹2,70,000/-
earnings (15000 x 18 x (₹15,000/- x 18
12) months)
2. Compensation .... .... ....
for anticipated
treatment
3. Transport to ₹10,000/- ₹45,000/- ₹45,000/-
hospital (No modification)
4. Extra ₹75,000/- ₹50,000/- ₹50,000/-
nourishment (No modification)
5. Damage to ₹2,000/- ₹3,500/- ₹3,500/-
M.A.C.A.No.801 of 2020 and Cross Objection No.53 of 2020
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clothing and (No modification)
article
6. Medicine, ₹15,000/- ₹4,000/- ₹4,000/-
Medical (No modification)
expenses
By stander ₹23,000/- - ₹1,00,000/-
expenses
7. Compensation ₹1,00,000/- ₹85,000/- ₹95,000/-
for pain and
suffering
Compensation ₹25,92,000/-
for continuing ₹2,00,000/- ₹25,92,000/- (No modification)
or permanent
disability
8. Compensation ₹5,00,000/- ₹1,00,000/- ₹1,00,000/-
for loss of (No modification)
amenities in
life
9. Compensation ₹75,000/- ₹30,000/- ₹30,000/-
for future (No modification)
treatment
10. Disfiguration - - ₹1,50,000/-
and loss of
marriage
prospects
Total ₹30,00,000/- ₹61,49,500/- ₹34,39,500/-
In the result, the appeal and cross objection are disposed
of as herein above stated, by deducting the compensation awarded
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by an amount of ₹27,10,000/- (total compensation is
₹34,39,500/-, that is, ₹61,49,500/- granted by the Tribunal minus
₹27,10,000/- deducted in appeal).
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
M.A.C.A.No.801 of 2020 and Cross Objection No.53 of 2020
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PETITIONER ANNEXURES
Annexure A1 THE COPY OF THE COMMON AWARD DATED
25.09.2021 IN O.P(MV) NO.750/2016 AND
O.P(MV) NO.1716 OF 2016 OF MACT,
ATTINGAL
