Kerala High Court
Thomas John vs The Branch Manager on 20 June, 2025
M.A.C.A.No.656 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 20TH DAY OF JUNE 2025 / 30TH JYAISHTA, 1947
MACA NO. 656 OF 2020
AGAINST THE AWARD DATED 28.05.2019 IN OP(MV)NO.32 OF
2014 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,
PATHANAMTHITTA.
APPELLANT/PETITIONER IN THE O.P.[M.V]:
THOMAS JOHN,
AGED 59 YEARS,
S/O YOHANNAN @ JOHN, THONATTU PUTHENVEEDU,
KANNAMKODU MURI, ADOOR VILLAGE AND POST,
ADOOR TALUK, PATHANAMTHITTA-691 523.
BY ADV SRI.T.K.BIJU (MANJINIKARA)
RESPONDENT/3RD RESPONDENT IN THE O.P [M.V]:
THE BRANCH MANAGER,
UNITED INDIA INSURANCE COMPANY LIMITED,
CHARUMMOODU P.O.ALAPPUZHA-690 505.
BY ADV.P.K.MANOJKUMAR, SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 20.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A.No.656 of 2020
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C.S.SUDHA, J.
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M.A.C.A.No.656 of 2020
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Dated this the 20th 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.32/2014 on the file of the Additional Motor Accidents Claims
Tribunal-III, Pathanamthitta, (the Tribunal), aggrieved by the amount
of compensation granted by Award dated 28/05/2019. 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 15/11/2013 at
about 08:30 a.m., while he was walking through the northern side of
the Kayamkulam-Punalur road, motor bike bearing registration
No.KL-04-P-701, ridden by the second respondent in a rash and
negligent manner knocked him down as a result of which he
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sustained grievous injuries. An amount of ₹7,00,000/- 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. It was contended that the amount claimed was
exorbitant.
5. Before the Tribunal, no oral evidence was adduced
by either side. Exts.A1 to A14 were marked on the side of the claim
petitioner. No documentary evidence was adduced by the
respondents. Ext.X1 is the disability certificate issued from the Govt.
Medical College Hospital, Kottayam.
6. The Tribunal on consideration of the documentary
evidence and after hearing both sides, found negligence on the part
of the second respondent/rider of the offending vehicle resulting in
the incident and hence awarded an amount of ₹4,20,186/- together
with interest @ 9% per annum from the date of the petition till the
date of realisation with proportionate costs. Aggrieved by the Award,
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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
The learned counsel for the claim petitioner submits that the
latter, a 61 year old driver, was earning an amount of ₹10,000/- per
month. However, the Tribunal fixed the notional income at ₹8,000/-,
which is quite low going by the dictums in Manusha Sreekumar v.
United India Insurance Company Limited., 2022 KHC 7106 :
AIR 2022 SC 5161 and Sushila v. Ram Swaroop, 2023 KHC
7236 : 2023 ACJ 2028. Per contra, it is submitted by the learned
counsel for the third respondent/insurer that, if the Court is inclined
to grant any enhancement, it may be according to the claim that has
been made by the claim petitioner.
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In the claim petition, an amount of ₹10,000/- has been
claimed. In the facts and circumstances of the case, I find that
notional income can be fixed at ₹10,000/-.
Percentage of disability
As per Ext.X1 certificate, the whole body disability is stated
to be 30%. It is pointed out by the learned counsel for the claim
petitioner that it has come on record that the claim petitioner pursuant
to the accident has lost sight of his right eye, as a result of which, he
is unable to carry on with his avocation. Therefore, the Tribunal
committed a gross error in scaling down the disability to 25%, goes
the argument. Per contra, it is submitted by the learned counsel for
the third respondent/insurer that the percentage of disability fixed as
30% is right in the light of the schedule to the Workmen's
Compensation Act and therefore, no further change is required.
Ext.X1 shows that the permanent disability is 30%. The
Tribunal had the advantage of seeing the claim petitioner. It is
observed in the Award that the claim petitioner has lost sight of one
eye and hence he has not been able to renew his driving license and
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therefore unable to carry on with his avocation as a driver. In the
light of the dictum in Raj Kumar v. Ajay Kumar, (2011) 1 SCC
343, it is the functional disability that needs to be taken into account
while computing compensation regarding loss of future prospects.
Ext.A12 reads thus -
"Diagnosis-
Traumatic optic neuropathy (Rt).
Condition at discharge- No perception of light right eye.
RAPD(Rt.) (F) pale disc Rt. eye."
It appears that due to the accident he lost the sight of one eye and
therefore, there cannot be any doubt that there is functional disability.
Therefore, in the facts and circumstances of the case, the functional
disability can be fixed at 50%.
10. The impugned Award is modified to the following
extent :
Sl. Head of claim Amount Awarded Modified in appeal
No. by Tribunal
1. Loss of earnings ₹48,000/- ₹60,000/-
(₹10,000/-
x6months)
2. Medical expenses ₹17,186/- ₹17,186/-
(No modification)
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3. Bystander's expenses ₹10,000/- ₹10,000/-
(No modification)
4. Transport to hospital ₹10,000/- ₹10,000/-
(No modification)
5. Extra diet and ₹5,000/- ₹5,000/-
nourishment (No modification)
6. Damages to clothing ₹2,000/- ₹2,000/-
and other articles (No modification)
7. Pain and sufferings ₹80,000/- ₹80,000/-
(No modification)
8. Compensation for ₹1,68,000/- ₹4,20,000/-
permanent disability (₹10,000/-
x12x7x50%)
9. Loss of amenities ₹80,000/- ₹80,000/-
(No modification)
Total ₹4,20,186/- ₹6,84,186/-
In the result, the appeal is allowed by enhancing the
compensation by a further amount of ₹2,64,000/- (total compensation
₹6,84,186/-, that is, ₹4,20,186/- granted by the Tribunal +
₹2,64,000/- 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 81 days delay in filing the appeal) and proportionate costs.
The third respondent/insurance company 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.
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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
