Kerala High Court
Subair. M P vs M/S. Iffco Tokyo General Insurance ... on 24 June, 2025
M.A.C.A.No.39 of 2020 &
C.O. No. 34 of 2025
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2025:KER:44829
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
MACA NO. 39 OF 2020
AGAINST THE AWARD DATED 26.03.2019 IN OPMV NO.805 OF
2016 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
VADAKARA.
APPELLANT/3RD RESPONDENT:
IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED,
HARYANA NOW REPRESENTED BY ITS LEGAL MANAGER,
IFFCO BHAVAN, THOTTAKKAT ROAD, KOCHI-11.
BY ADV SHRI.P.JACOB MATHEW
RESPONDENT/PETITIONER:
SUBAIR.M.P.,
S/O.UMMERKUTTY, PUTHIYOTTIL HOUSE,
PUDUPPANAM AMSOM DESOM, VATAKARA TALUK,
PIN-673105.
(NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1
AND 2 IN THE ABOVE ORIGINAL PETITION AND HENCE
THEY ARE NOT MADE PARTIES IN THIS APPEAL.)
BY ADVS.
SRI.U.P.BALAKRISHNAN
SRI.C.H.ABDUL RASAC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 19.06.2025, ALONG WITH CO.34/2025, THE COURT ON
24.06.2025 DELIVERED THE FOLLOWING:
M.A.C.A.No.39 of 2020 &
C.O. No. 34 of 2025
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2025:KER:44829
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
CO NO. 34 OF 2025
AGAINST THE AWARD DATED 26.03.2019 IN OPMV NO.805 OF
2016 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
VADAKARA.
CROSS OBJECTOR(S)/RESPONDENT:
SUBAIR. M P,
AGED 47 YEARS,
S/O.UMMERKUTTY, PUTHIYOTTIL HOUSE,
PUTHUPANAM AMSOM, DESOM,
VATAKARA TALUK, KOZHIKODE DISTRICT,
PIN - 673105
BY ADVS.
SRI.U.P.BALAKRISHNAN
SRI.ABDUL RAOOF PALLIPATH
SRI.C.H.ABDUL RASAC
RESPONDENT(S)/APPELLANT:
M/S. IFFCO TOKYO GENERAL INSURANCE CO.LTD
IFFCO TOWERS, PLOT NO.3,
SECTOR 29, HURGAON, HARIYANA,
PIN - 244413
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY
HEARD ON 19.06.2025, ALONG WITH MACA.39/2020, THE COURT ON
24.06.2025 DELIVERED THE FOLLOWING:
M.A.C.A.No.39 of 2020 &
C.O. No. 34 of 2025
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2025:KER:44829
C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.No.39 of 2020
&
Cross Objection No. 34 of 2025
----------------------------------------------------
Dated this the 24th day of June 2025
JUDGMENT
This appeal has been filed under Section 173 of the
Motor Vehicles Act, 1988 (the Act) by the third
respondent/insurer in O.P.(MV) No.805/2016 on the file of the
Motor Accidents Claims Tribunal, Vatakara (the Tribunal),
aggrieved by the Award dated 26/03/2019. The sole respondent
herein is the claim petitioner who has filed Cross Objection 34 of
2025. In this appeal and cross objection the parties and the
documents will be referred to as described in the original petition.
2. According to the claim petitioner, on
28/05/2016 at about 11:00 a.m., while he was driving
autorickshaw bearing registration no.KL-18-H-7960 from
Palayadnada to Payyoli and when he reached near Palayadnada
M.A.C.A.No.39 of 2020 &
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bus stop, car bearing registration no.KL-18-K-2000 driven by the
second respondent in a rash and negligent manner collided with
the autorickshaw, as a result of which he sustained grievous
injuries.
3. The first respondent-owner and second
respondent-driver of the offending vehicle remained ex parte.
4. The third respondent/insurer filed written
statement admitting the policy but denying negligence.
Averments in the petition regarding age and injuries were
disputed. The amount of compensation claimed was contended
to be excessive.
5. Before the Tribunal, PW1 was examined and
Exts.A1 to A21 and Ext.C1 were marked on the side of the
petitioner. No oral or documentary evidence was adduced by the
third respondent.
6. The Tribunal on consideration of the oral and
documentary evidence and after hearing both sides, found
negligence on the part of the second respondent-driver of the
M.A.C.A.No.39 of 2020 &
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offending vehicle resulting in the incident and hence awarded an
amount of ₹10,99,600/- together with interest @ 8% per annum
from the date of the petition till realisation along with
proportionate costs. Aggrieved by the Award, the third
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. The Award of compensation under the
following heads are challenged -
Notional income
It was submitted by the learned counsel for the claim
petitioner that the latter at the time of the incident was a driver
cum owner of autorickshaw earning ₹25,000/- per month. In the
light of the dictum in Manusha Sreekumar v. United India
Insurance Company Limited., 2022 KHC 7106 : AIR 2022 SC
5161, the notional income fixed is liable to be enhanced. Per
M.A.C.A.No.39 of 2020 &
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contra, it was submitted by the learned senior counsel for the
third respondent/insurer that the amount of ₹9,000/- fixed by the
Tribunal is reasonable and in case the court is inclined to accept
the argument of the claim petitioner, it may be fixed in
accordance with the dictum in Ramachandrappa v. Manager,
Royal Sundaram Alliance Insurance Co. Ltd, (2011) 13 SCC
236.
9.1. In Manusha Sreekumar (Supra), the deceased
was a self employed man, who is described by the Apex Court as
a person, who donned multiple hats so as to provide a
comfortable living for his family. It was alleged that the deceased
was a fish vendor cum driver earning at least ₹25,000/- per
month. In support of the claim, various documentary evidences
were produced to prove his financial capacity, which were- (i)
course certificate showing that the deceased had completed two
years course in electronic mechanic trade; (ii) a job training
certificate at Sun Generic Cables Pvt. Ltd.; (iii) Passport of the
deceased indicating that he was earlier employed in the Sultanate
M.A.C.A.No.39 of 2020 &
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of Oman ; (iv) a certificate to show that he was receiving rent
from a shop in the Municipal Market shopping complex; (v) a job
offer letter dated 11/12/2014 from the United Kingdom, offering
the position of Telecom Rigger; (vi) bank statements of the
deceased and (vii) certificate of Kerala Motor Transport Workers'
Welfare Fund Board. The Tribunal fixed the notional income at
₹17,500/- per month (₹14,000/- + ₹3,500/- rent). The High Court
relying on the dictum in Ramachandrappa (Supra), fixed the
monthly income at ₹10,000/-. In appeal, one of the issues that
was considered by the Apex Court was whether the High Court
was right in reducing the income from ₹17,500/- to ₹10,000/- on
the ground of want of sufficient documentary evidence. From the
evidence on record, the Apex Court found that it was
undoubtedly established that the deceased was a fish vendor cum
driver with a valid license. The certificate issued by the Kerala
Motor Transport Workers' Welfare Fund Board certified that the
deceased was a driver of light motor goods vehicle. It was also
found that he had also paid all his subscriptions to the Board
M.A.C.A.No.39 of 2020 &
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without fail. In the light of the evidence produced, the notional
income of the deceased was fixed at ₹15,600/-.
9.2. In the present case Exts.A18 and A19, the copy
of the driving license and registration certificate establish his
claim that he was a driver-cum-owner of the autorickshaw he was
driving at the relevant time. In the facts and circumstances of the
case, I find that the notional income of the claim petitioner can be
fixed at ₹13,000/-.
Percentage of permanent disability
10. The main grievance of the third
respondent/insurer is that the Tribunal ought not to have added
40% towards future prospects while computing compensation for
permanent disability as the disability involved in this case is only
17%. It was submitted that only in cases where grievous injuries
are caused resulting in permanent disability affecting the claim
petitioner's discharge of duties, addition ought to have been made
towards future prospects. Per contra, it was submitted by the
learned counsel for the claim petitioner relying on the dictums in
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Mohan Soni v. Ram Avtar Tomar, 2012 KHC 4012; Syed
Sadiq v. Divisional Manager, United India Ins.Co.Ltd., CDJ
2014 SC 044; The Manager, Universal Sompo General
Insurance Co.Ltd. v. Suja George, MACA No.1860 of 2015;
Jagdish v. Mohan, CDJ 2018 SC 173; Vijay Kumar Rastogi v.
Uttar Pradesh State Roadways Transport Corporation, CDJ
2018 SC 218; Lalan D. @ Lal v. The Oriental Insurance
Company Limited, CDJ 2020 SC 731; Erudhaya Priya v.
State Express Transport Corporation Ltd., 2020 KHC 6460;
Pappu Deo Yadav v. Naresh Kumar, CDJ 2020 SC 727;
Satheesh E. v. The New India Assurance Co. Ltd., Civil
Appeal No.8059-8060 of 2022 (SLP (C) Nos.775-776 of 2022);
Sidram v. Divisional Manager, United India Insurance
Co.Ltd., 2022 KHC 7206; Muhammed v. United India
Insurance Co.Ltd., 2023 KHC 3015; Mubarak v. Divisional
Manager, New India Assurance Co.Ltd., Kollam, 2024 KHC
675 and Prakash Bhimkappa @ Fakirappa Bhajantri etc. v.
the M.D. NWKRTC, Unnumbered Civil Appeal of 2025 (SLP
M.A.C.A.No.39 of 2020 &
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[C] No.19220-19221/2023] that, when injuries are grievous,
additions have to be made towards future prospects also. Here the
disability as per Ext.C1 is 17%, but the same is whole body
disability. 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 and in the light of the injuries
sustained, it can be seen that the functional disability would be
50% and therefore the percentage of disability fixed by the
Tribunal needs to be raised, goes the argument.
10.1. There can be no doubt on the proposition that
even in cases of permanent disablement incurred as a result of the
motor accident, the claimant can seek apart from compensation
for future loss of income, amounts for future prospects as well. In
the case on hand the injuries sustained are:
"1. Segmental fracture bilateral femur.
2. Fracture right side ribs 5to 8, right
hemothorax.
3. Grade 3 live laceration.
4. Lacerated wound over right leg and foot.
5. Lacerated wound over left thigh of about 6x2x4
M.A.C.A.No.39 of 2020 &
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cm.
6. Lacerated wound over dorsum of right ankle
and lower part of leg.
7. Tenderness and swelling and deformity of both
thigh."
The claim petitioner when examined as PW1 described the
difficulties caused as a result of the accident. Taking into account
the said disabilities caused, the Tribunal fixed the disability at
17% and granted compensation towards permanent disability
including loss of future prospects also. The testimony of PW1
regarding the disabilities caused due to the accident has not been
disproved or discredited. Therefore, I find that the Tribunal was
justified in taking the functional disability as 17% and computing
future prospects also for the purpose of granting compensation
under this head. I find no infirmity calling for an interference by
this Court.
Extra nourishment and bystander's expenses and attendance
at home
11. An amount of ₹1,00,000/- was claimed. The
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Tribunal granted an amount ₹19,800/-. The learned counsel for
the third respondent/insurer submits that this is on the higher side
and hence the same is needs to be reduced.
11.1. The materials on record reveal that he was
hospitalized for a period of 22 days and he had to undergo two
surgeries also. The incident took place on 20/05/2016, therefore
he can be awarded an amount of ₹6,000/- towards extra
nourishment. As far as bystander expenses are concerned, I find
that he can be granted compensation at the rate of ₹450/- per day
for 22 days, that is, ₹450/-x22 days=₹9,900/-.
Attendant charge
12. It is pointed out by the learned senior counsel
appearing for the third respondent/insurer that though no amount
was claimed under this head, the Tribunal without any materials
on record granted an amount of ₹27,000/-, which is liable to be
set aside. Per contra, it was submitted by the learned counsel for
the claim petitioner that the Tribunal has given reasons for
awarding the sum and therefore the same does not call for any
M.A.C.A.No.39 of 2020 &
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interference.
12.1. In paragraph 12 of the Award, the Tribunal says
that in the light of the injuries sustained, that is, fracture to femur,
both legs in addition to other fractures, it would have been
impossible for the claim petitioner to carry out his day to day
activities of attending the call of nature, bathing etc on his own at
least for a period of 90 days after discharge from the hospital and
that even if gratuitous service was rendered by any family
member of the claimant, the same cannot be made a ground for
denying compensation. In the words of the Tribunal - " The
service of wife is worth more than those of a house keeper
because she is in constant attendance and does many things than
a house keeper....." Holding so, the Tribunal proceeded to award
an amount of ₹27,000/-, that is at the rate of ₹300/- for a period
of 90 days.
12.2. It is true, as pointed out by the learned senior
counsel for the third respondent/insurer, that there was no
pleadings or evidence to establish the claim under this head.
M.A.C.A.No.39 of 2020 &
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However, in the light of the injuries sustained, I find that an
amount of ₹15,000/- would be just and reasonable.
13. The impugned Award is modified to the
following extent:
Sl. Compensation Amount Amount allowed Modified in appeal
No. claimed under claimed (in ₹) (in ₹)
different heads (in ₹)
1. Loss of Nil 54,000/- 78,000/-
earning 13,000/- x 6 months
2. Transport to 25,000/- 15,000/- 15,000/-
hospital (No modification)
3. Extra 1,00,000/- 19,800/- 6,000/-
nourishment &
bystander's
expenses & 9,900/-
attendance at (450 x 22 days)
home
4. Medical 5,00,000/- 3,72,201/- 3,72,201/-
expenses (No modification)
5. Damage to 5,000/- 1,000/- 1,000/-
clothing and (No modification)
articles
6. Pain & 3,00,000/- 1,00,000/- 1,00,000/-
suffering (No modification)
7. Loss of Nil 75,000/- 75,000/-
amenities and (No modification)
enjoyment of
life
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8. Future 10,00,000/- 50,000/- 50,000/-
treatment (No modification)
9. Permanent 2,00,000/- 3,85,560/- 5,56,920/-
disability
[(13,000 + 40% x
13,000) x 12 x 15 x
10. Loss of 2,00,000/- Nil Nil
earning power (No modification)
11. Compensation 3,00,000/- Nil Nil
for (No modification)
inconvenience
and discomfort
12. Mental shock 2,00,000/- Nil Nil
and agony (No modification)
13. Attendant Nil 27,000/- 15,000/-
charge
Total 28,30,000/- 10,99,561/- 12,79,021/-
20,00,000/- Rounded to
10,99,600/-
In the result, the appeal and cross objection are disposed
of as herein above stated, by enhancing the compensation by a
further amount of ₹1,79,421/- (total compensation ₹12,79,021/-
that is, ₹10,99,600/- granted by the Tribunal + ₹1,79,421/-
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 988 days delay in filing the cross objection) and proportionate
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costs. The third respondent/insurance company 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
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
Jms
