Kerala High Court

Jayakrisnan vs The Oriental Insurance Co. Ltd on 18 June, 2025

M.A.C.A. No.778 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. 778 OF 2020

        AGAINST THE AWARD DATED 30.05.2019 IN OP(MV)NO.1784 OF

2017 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,

PALAKKAD.

APPELLANT/PETITIONER:

              JAYAKRISHNAN,
              AGED 43 YEARS,
              S/O. KESAVAN, 1113,
              PANDAMCODE, ANJUMOORTHY P.O,
              VADAKKENCHERRY-2, PALAKKAD,
              KERALA 678 682.


              BY ADV SRI.BABY MATHEW



RESPONDENT/3RD RESPONDENT:

              THE ORIENTAL INSURANCE CO. LTD.,
              REPRESENTED BY ITS BRANCH MANAGER,
              P L A BUILDING, 1ST FLOOR,
              KOVAI ROAD, KARUR,
              TAMILNAD 639 002.
              WITH COMMUNICATION ADDRESS AT
              THE ORIENTAL INSURANCE CO. LTD.,
              3RD FLOOR BUILTECH FOUNDATIONS,
              CHITTUR ROAD, PALAKKAD 678 003
              (INSURER OF CAR BEARING REG NO TN- 01-AJ-5929)
              (POLICY NO. 454200/31/2017/1526)
              (VALID FROM 16/07/2016 TO 15/07/2017)
 M.A.C.A. No.778 of 2020
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              BY ADVS.
              SHRI.JOMY GEORGE
              SHRI.R.PADMARAJ
              SHRI.P.J.ANTONY JOSEPH MARIADAS
              SRI.DEEPAK MOHAN
              SMT. CHITRA N. DAS
              SHRI.RISHAB S.




       THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 18.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 M.A.C.A. No.778 of 2020
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                                C.S.SUDHA, J.
                ----------------------------------------------------
                          M.A.C.A. No.778 of 2020
                ----------------------------------------------------
                   Dated this the 18th 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.1784/2017 on the file of the Motor Accidents Claims Tribunal,

Palakkad (the Tribunal), aggrieved by the amount of compensation

granted by Award dated 30/05/2019. The sole respondent herein is

the third respondent 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 23/07/2016

at about 07:40 p.m., while he was riding his motorcycle through

Palakkad-Thrissur public road, car bearing registration No.TN-01-

AJ-5929, driven by the second respondent in a rash and negligent

manner knocked him down, as a result of which he sustained

grievous injuries.

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3. The first respondent/owner and the second

respondent/driver remained ex parte.

4. The third respondent/insurer filed written statement

admitted the policy, but denied negligence on the part of the second

respondent/driver. The age, occupation, income and the amount of

compensation claimed under various heads were disputed.

5. Before the Tribunal, no oral evidence was adduced

by either side. Exts.A1 to A18 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 amount of ₹2,49,657/- together

with interest @ 7.5% per annum from the date of 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

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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 40 year old painter was earning an amount

of ₹15,000/- per month. However, the Tribunal fixed the notional

income at ₹7,000/-, which even going by the dictum in

Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Co. Ltd., (2011) 13 SCC 236 is quite low.

In the light of the dictum in Ramachandrappa (Supra),

the notional income is fixed at ₹10,500/- per month.

Loss of earning

The materials on record reveal that the claim petitioner

sustained the following injuries:-

"1) Type-I open fracture tibia lower 3rd right leg

2) Multiple abrasions and skin contusion

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3) Contusion lower leg

4) Deep lacerated wound in upper lip"

He was hospitalized for a period of 5 days and had to undergo one

surgery. In all probability, he might have been unable to work for a

period of 8 months and hence the compensation would be ₹10,500/-x

8 months=₹84,000/-

Extra nourishment

An amount of ₹10,000/- was claimed. The Tribunal granted

an amount of ₹2,000/-. As he was hospitalized for a period of 5 days

and he had to undergo a surgery, I find that an amount of ₹3,000/-

would be just and reasonable.

Bystander expenses

The incident took place on 23/07/2016. Therefore, I find

that bystander expenses at the rate of ₹450/- for a period of 5 days

would be just and reasonable, that is, ₹450/-x5days=₹2,250/-.

Pain and sufferings

An amount of ₹50,000/- was claimed. The Tribunal granted

an amount of ₹25,000/-. In the light of the injuries sustained and the

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surgery he had to undergo, I find that an amount of ₹40,000/- would

be just and reasonable.

Compensation for loss of amenities and enjoyment in life

An amount of ₹80,000/- was claimed. The Tribunal granted

an amount of ₹10,000/-. Taking into account the nature of injury and

the avocation of the claim petitioner, I find that an amount of

₹30,000/- would be just and reasonable.

Percentage of disability

The learned counsel for the claim petitioner quite

persuasively argued that the Tribunal went wrong in fixing the

functional disability at 6% when the Medical Board as per Ext.X1

had fixed the disability at 10%. He relies on the dictum

Manikantan G. v. K. Janardhanan Nair, 2021 (5) KHC 305 in

support of the same.

In Manikantan (Supra) the disability certificate showed

permanent disability of 12%. However, the Tribunal scaled down the

disability to 8% for the sole reason that the claimant failed to

examine the doctor who issued the certificate. This was held to be

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improper and it was held that if the Tribunal had any doubts about

the same, it ought to have referred the claim petitioner to a Medical

Board instead of taking him unawares by rejecting the document.

The dictum in the said case is not applicable to the facts of the case

on hand because the Tribunal has not rejected Ext.A15. The

Tribunal had the advantage of seeing the claim petitioner based on

which the functional disability was fixed as 6%. As held in Raj

Kumar v. Ajay Kumar, (2011) 1 SCC 343, it is not the whole

body disability that needs to be taken, but it is the functional

disability that needs to be taken into account. Therefore, I do not find

any reasons to interfere with the percentage of disability fixed by the

Tribunal.

10. The impugned Award is modified to the following

extent:

Sl. Head of claim Amount Amount Modified in appeal No. claimed Awarded by Tribunal 1 Loss of earning ₹1,80,000/- ₹28,000/- ₹84,000/-

(₹10,500/-x8 months) 2 Transportation to ₹15,000/- ₹5.000/- ₹5,000/-

       hospital                                           (No Modification)
 3     Damage to            ₹1,000/-          ₹1,000/-          ₹1,000/-




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       clothing and                                               (No Modification)
       articles
 4     Extra                     ₹10,000/-         ₹2,000/-           ₹3,000/-
       nourishment
 5     Expenses of a             ₹3,000/-          ₹1,500/-           ₹2,250/-
       Bystander                                                   (₹450/-x5 days)
 6     Treatment                ₹1,80,000/-       ₹1,06,597/-        ₹1,06,597/-
       expenses                                                   (No Modification)
 7     Compensation              ₹50,000/-        ₹25,000/-           ₹40,000/-
       for pain and
       suffering
 8     Compensation             ₹1,00,000/-       ₹70,560/-           ₹1,05,840/-
       for loss of future                                       (₹10,500/-x12x14x
       earning power                                            6%)
 9     Compensation              ₹80,000/-        ₹10,000/-           ₹30,000/-
       for loss of
       amenities and
       enjoyment in life
             Total              ₹6,19,000/-       ₹2,49,657/-        ₹3,77,687/-

In the result, the appeal is allowed by enhancing the

compensation by a further amount of ₹1,28,030/- (total

compensation ₹3,77,687/- that is, ₹2,49,657/- granted by the

Tribunal + ₹1,28,030/- 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 254 days delay in filing the appeal) and

proportionate costs. The third respondent/insurer is directed to

deposit the aforesaid amount before the Tribunal within a period of

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60 days from the date of receipt of a copy of the judgment. On

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.