Kerala High Court
Shafi vs Mohanan Nair (Deleted)* on 23 June, 2025
M.A.C.A.No.949 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 23RD DAY OF JUNE 2025 / 2ND ASHADHA, 1947
MACA NO. 949 OF 2020
AGAINST THE AWARD DATED 25.10.2019 IN OPMV NO.292 OF
2015 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,
THIRUVANANTHAPURAM.
APPELLANT/PETITIONER:
SHAFI,
AGED 49 YEARS,
S/O.ALIYAR KUNJU,
ALINSHA HOUSE, KATTUMPURAM P.O.,
KALLARA, THIRUVANANTHAPURAM-695608.
BY ADV SRI.M.A.AUGUSTINE
RESPONDENTS/RESPONDENTS:
*1 MOHANAN NAIR (DELETED);
S/O.PONNAPPAN NAIR, 5/463 (9/505),
SIVAKRIPA, THRIKKADAVOOR, PERINADU P.O.,
KOLLAM-691601.
*2 NAVANEETH MOHAN (DELETED);
S/O.MOHANAN NAIR, 5/463 (9/505),
SIVAKRIPA, THRIKKADAVOOR, PERINADU P.O.,
KOLLAM-691601.
*(RESPONDENT NO.1 AND 2 ARE DELETED FROM PARTY
ARRAY AT THE RISK OF APPELLANT AS PER ORDER DATED
08/11/2021 IN IA.NO.1/2021 IN MACA 949/2020)
M.A.C.A.No.949 of 2020
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3 M/S.NATIONAL INSURANCE CO.LTD.,
DIVISIONAL OFFICE, ST.JOSEPH'S PRESS BUILDING,
COTTON HILL, VAZHUTHACAUD, THIRUVANANTHAPURAM-
695014, REPRESENTED BY BRANCH MANAGER.
BY ADV SRI.E.M.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 23.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.949 of 2020
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C.S.SUDHA, J.
-----------------------------------------------------------
M.A.C.A.No.949 of 2020
-----------------------------------------------------------
Dated this the 23rd 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.292/2015 on the file of the Motor Accidents Claims Tribunal,
Thiruvananthapuram, (the Tribunal), aggrieved by the amount of
compensation granted by Award dated 25/10/2019. 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 17/05/2014,
at about 05:30 p.m., while he was walking through the side of
Kadappakkada Chinnakkada N.H. Road and when he reached near
Upasana Hospital, Kadappakkada, motorcycle bearing registration
No.KL-02/Y-783 ridden by the second respondent in a rash and
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negligent manner knocked him down as a result of which he
sustained grievous injuries. An amount of ₹10,00,000/- was claimed
as compensation under various heads.
3. The first respondent/owner and the second
respondent/rider filed joint written statement admitting the policy. It
was also contended that the amount claimed was excessive.
4. The third respondent/insurer filed written
statement admitting the policy. It was also contended that the
amount claimed was exorbitant.
5. Before the Tribunal, no oral evidence was adduced
by either side. Exts.A1 to A8 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/rider of the offending vehicle resulting in
the incident and hence awarded an amount of ₹3,56,600/- together
with interest @ 8% per annum from the date of the petition till the
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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 44 year old timber merchant was earning
₹10,000/- per month. However, the Tribunal fixed the notional
income at ₹7,500/- which is quite low even going by the dictum in
Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Co. Ltd., (2011) 13 SCC 236.
9.1. Though the allegation was that he was a timber
merchant, there is no evidence adduced to substantiate the same.
Therefore, going by the dictum in Ramachandrappa (Supra), I find
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that the notional income can be fixed at ₹9,500/- per month.
Percentage of disability
10. The learned counsel for the claim petitioner
relying on the judgment dated 10/2/2025 in Prakash Chand
Sharma v. Rambabu Saini in SLP(C)No.3066 of 2024 and
Thresiamma Sebastian v. Dr.Renu Swamidas, 2024(5) KHC 520,
submitted that when a Medical Board as per Ext.A7 has fixed the
disability at 9%, the Tribunal was totally unjustified in scaling down
the disability to 7% without giving any reasons. Therefore, he
submits that Ext.A7 issued by the Medical Board has to be accepted
as such and the finding could not have been interfered with by the
Tribunal without examining the doctor(s) who issued the same. Per
contra, it was submitted by the learned counsel for the third
respondent/insurer that the Tribunal has every power to fix the
functional disability taking into account the disabilities suffered by
the claimant and therefore, there is no infirmity committed by the
Tribunal calling for an interference by this Court.
10.1. In the judgment dated 10/02/2025 in Prakash
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Chand Sharma (Supra), the claimant was aggrieved by the fact that
the opinion of the Medical Board computing disability had been
ignored by the Tribunal substituting its own view. This was
submitted to be in the teeth of the judgment in Union of India v.
Talwinder Singh, (2012) 5 SCC 480 and Raj Kumar v. Ajay
Kumar, (2011) 1 SCC 343. The duly constituted Medical Board
had ascertained the permanent disability of the claimant to be 100%.
The relevant extract of the opinion of the Medical Board reads:
-"(a)Permanent privation of the sight of either eye or the hearing or
either ear or any member of joint (mention if any): Now the patient
has no speech and his intellectual functions are completely
impaired. He cannot stand and walk. He is catheterized till now. (b)
Destruction or permanent impairing of the power of any member of
joint mention (if any). He is dependent on others on Activities of
Daily Living (ADL) = 100%. He falls from bad(sic)(bed?) several
times. He got many times during infection. Total permanent,
physical impairment is 100%. (c) Permanent disfiguration of head
or face (mention if any) ..... (d) The other material observation
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having adverse bearing on the life expectancy or normal functioning
of the body/limb injured/affected: Total Permanent Impairment is
100% one hundred percent." The Tribunal questioned the
competence of the Medical Board to assess the permanent disability
of the claimant, terming the certificate as not completely reliable.
The Apex court held that if the Tribunal had reason to doubt the
medical certificate, the option available before it was to have the
disability re-assessed and that it could not have gone into the details
of the determination of disability. Since that course of action had not
been adopted, the opinion of the Medical Board, being an opinion of
the experts is to be treated as such. That apart, the comatose state of
the claimant was also not in dispute.
10.2. In Talwinder Singh (Supra), the question involved
was whether an injury sustained by a person enrolled in the
Army when on leave at his home, could be attributable to or
aggravated by the military service thus entitling him to disability
pension. He was examined by the Release Medical Board (RMB)
for assessment of degree and attributability / aggravation factors of
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the disability 'Perforating Injury Left Eye' and it concluded that
disability was 30% for life. However, the Board further declared that
the said disability was neither attributable to nor aggravated by
military service. In view thereof, the claim for disability pension
was rejected by the competent authority. The suit and the appeal
filed by him were dismissed. In second appeal, the High Court
reversed the concurrent finding of facts by the trial and appellate
Courts and allowed the appeal decreeing the suit issuing direction to
the Union of India to release payment of disability pension. In
appeal, the Apex Court held that it is a settled legal proposition that
opinion of the Medical Board should be given primacy in deciding
cases of disability pension and the Court should not grant such
pension brushing aside the opinion of the Medical Board. (Union of
India v. Baljit Singh, (1996)11 SCC 315; Union of India v. Dhir
Singh China, Colonel (Retd.), (2003)2 SCC 382; Controller of
Defence Accounts (Pension) v. S. Balachandran Nair, AIR 2005
SC 4391; Union of India v. Keshar Singh, (2007)12 SCC 675;
and Union of India v. Surinder Singh Rathore, (2008)5 SCC
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747). Reference was also made to the dictum in the Secretary &
Curator, Victoria Memorial Hall v. Howrah Ganatantrik
Nagrik Samity, AIR 2010 SC 1285, wherein the Apex Court
placing reliance upon a large number of earlier judgments including
the Constitution Bench judgment in University of Mysore v. C.D.
Govinda Rao, AIR 1965 SC 491, held that ordinarily, the Court
should not interfere with the order based on opinion of experts on
the subject. It would be safe for the Courts to leave the decision to
experts who are more familiar with the problems they face than the
Courts generally can be.
10.3. In Thresiamma Sebastian (Supra), the original
disability fixed was 88%. However, the insurer disputed the
disability fixed and hence the claimant was referred to the Medical
Board. The Medical Board by Ext.X1 Certificate found that the total
disability suffered by the claimant was 79%. Out of the same, 40%
was visual disability. At the time of the accident, the claimant
therein was Manager, M/s. Muthoot Finance. Pursuant to the
accident he had to discontinue the job. It was also proved that he
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was on loss of pay leave. The original disability fixed at 88% was
proved by examining the doctor who had issued the said certificate.
However, the Tribunal fixed the disability at 35%. Relying on Raj
Kumar (Supra) and Sam K.Mani v. T.N.Sreedhara Kaimal, 2014
KHC 6, a learned Single Judge of this court held that the Tribunal
is not an expert in fixing the disability of the claimant. Once the
claimant has discharged his / her burden in a manner known to law
in respect of a disability certificate, and once the Tribunal exercises
the power under R.387 of the Kerala Motor Vehicles Rules, 1989
and refers the claimant before the Medical Board, the consequent
report must be given due weightage. Unless there are compelling
circumstances before Tribunal, it must accept the certificate and, in
a case, if it chooses to discard the same, then definitely reasoning
has to follow. In other words, a mere opinion of the presiding officer
of the Claims Tribunal is not sufficient to discard the certificate of
disability issued by the Medical Board. Once the Medical Board
gave their opinion in the form of a Certificate and if the insurer has
dispute over the percentage of disability fixed by the Medical Board,
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then it should have summoned the doctors at their instance to prove
their case instead of shifting the burden to the shoulders of the
claimant. Since the insurer did not discharge the burden, the award
of the Tribunal fixing disability at 35% was held to be wholly
fallacious and arbitrary.
10.4. In this context it would be apposite to refer to the
dictum in Raj Kumar (Supra) which has been followed in
Anthony Swami v. M.D., KSRTC, (2020)7 SCC 161 and in many
other subsequent decisions, wherein the heads under which
compensation is awarded in personal injury cases has been
explained:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured
would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment.
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(b) Loss of future earnings on account of permanent
disability.
(iii) Future medical expenses.
Non - pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and / or loss of prospects of
marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).
In routine personal injury cases, compensation will be awarded only
under heads (i), (ii)(a) and (iv). It is only in serious cases of injury,
where there is specific medical evidence corroborating the evidence
of the claimant, that compensation will be granted under any of the
heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on
account of permanent disability, future medical expenses, loss of
amenities (and / or loss of prospects of marriage) and loss of
expectation of life. The Apex Court has lucidly set out the principles
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for grant of compensation in cases of permanent physical functional
disability as follows: 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. In most of the cases, the percentage
of economic loss, that is, the percentage of loss of earning capacity,
arising from a permanent disability will be different from the
percentage of permanent disability. Some Tribunals wrongly assume
that in all cases, a particular extent (percentage) of permanent
disability would result in a corresponding loss of earning capacity,
and consequently, if the evidence produced show 45% as the
permanent disability, will hold that there is 45% loss of future
earning capacity. In most of the cases, equating the extent
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(percentage) of loss of earning capacity to the extent (percentage) of
permanent disability will result in award of either too low or too
high a compensation. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves three steps. The
Tribunal has to first ascertain what activities the claimant could
carry on despite the permanent disability and what he could not do
as a result of the permanent disability (this is also relevant for
awarding compensation under the head of loss of amenities of life).
The second step is to ascertain his avocation, profession and nature
of work before the accident, as also his age. The third step is to find
out whether (i) the claimant is totally disabled from earning any
kind of livelihood, or (ii) whether in spite of the permanent
disability, the claimant could still effectively carry on the activities
and functions, which he was earlier carrying on, or (iii) whether he
was prevented or restricted from discharging his previous activities
and functions, but could carry on some other or lesser scale of
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activities and functions so that he continues to earn or can continue
to earn his livelihood.
10.5. Therefore, it is clear that in all personal injury
cases, compensation will not be awarded for loss of future earnings
on account of permanent disability or towards future medical
expenses or for loss of amenities and/or loss of prospects of
marriage or for loss of expectation of life. It is only in serious cases
of injury, where there is specific medical evidence corroborating the
evidence of the claimant, that compensation will be granted under
any of these heads.
10.6. In the case on hand, Ext.A7 reads thus-
"GOVERNMENT OF KERALA
THIRUVANANTHAPURAM
DISABILITY CERTIFICATE
Sl.No.9
Date:4.01.2018
We, the members of the Medical Board, District
Hospital, Nedumangad, Sri/Smt. Safi A.
aged........49.....residing at ...Alinsha...Home.....Kattumpuram
P.O., Kallara......on 04/01/18.... & found him/her as a person
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with disability by reason of physical/mental/visual/hearing
impairment due to...partial ankylosis of left ankle joint with
degeneration /flexion 90 0 to 105 0 plantar.
The Disability is of temporary/Permanent
/progressive nature & is partial/total, the degree of disability
having been found as- ......9%........ (in words....Nine
percentage). Degree of disability is ....mild...
(mild/moderate/severe)." (Emphasis supplied)
10.7. The dictums in neither Prakash Chand Sharma
nor Thresiamma Sebastian (Supra) can be applied to the facts of
the present case as the facts in the said cases are completely
different. The injuries sustained in the said cases were quite
grievous and the percentage of disability was also quite high. There
was also overwhelming evidence regarding the
difficulties/disabilities caused due to the accident. Hence it was in
such circumstances it was held that scaling down the percentage of
disability by the Tribunal had been totally uncalled for.
10.8. In the case on hand, in the light of the dictum in
Raj Kumar (Supra) and the disability that has been assessed as per
Ext.A7, I find that the Tribunal was justified in fixing the functional
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disability as 7%. I do not find any infirmity in the same calling for
an interference by this Court.
11. The impugned Award is modified to the following
extent :
Sl. Head of claim Amount Amount Modified in
No. claimed Awarded by appeal
Tribunal
PART I
1 Loss of ₹1,00,000/- ₹45,000/- ₹57,000/-
earnings for 10 (₹9,500/- x6
months months)
2 Transport to ₹20,000/- ₹2,000/- ₹2,000/-
hospital (No modification)
3 Extra ₹15,000/- ₹2,000/- ₹2,000/-
Nourishment (No modification)
4 Damages to ₹5,000/- ₹1,000/- ₹1,000/-
clothing and (No modification)
articles
5 Cost of ₹2,50,000/- ₹1,36,900/- ₹1,36,900/-
medicines and (No modification)
future medical
expenses
6 Charges for ₹24,000/- ₹1,500/- ₹1,500/-
bystander (No modification)
PART II
7 Compensation ₹1,00,000/- ₹50,000/- ₹50,000/-
for Pain and (No modification)
Suffering
8 Compensation ₹5,00,000/- ₹88,200/- ₹1,11,720/-
for continuing [₹9,500/-
or permanent x12x14x7%]
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disability
9 Compensation ₹1,00,000/- Nil Nil
for loss of (No modification)
future earning
power
10 Compensation ₹1,00,000/- ₹30,000/- ₹30,000/-
for the loss of (No modification)
amenities in
life
Total ₹12,14,000/- ₹3,56,600/- ₹3,92,120/-
(Claim is
limited to
₹10,00,000/-
only)
In the result, the appeal is allowed by enhancing the
compensation by a further amount of ₹35,520/- (total compensation
₹3,92,120/-, that is, ₹3,56,600/- granted by the Tribunal + ₹35,520/-
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 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.
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Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ak
