Kerala High Court

Leelama Sebastian vs Reji Joseph on 26 June, 2025

                                                2025:KER:46398
            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

             THE HONOURABLE MRS. JUSTICE C.S. SUDHA

   THURSDAY, THE 26TH DAY OF JUNE 2025 / 5TH ASHADHA, 1947

                     MACA NO. 1043 OF 2020

        AGAINST THE AWARD DATED 14.08.2019 IN OPMV NO.512 OF

2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA

APPELLANT/PETITIONER:

           LEELAMMA SEBASTIAN
           AGED 53 YEARS
           W/O. SEBASTIAN, POOTHAKUZHIYIL HOUSE,
           PLASSANAL P.O., THALAPPALAM VILLAGE,
           KOTTAYAM DISTRICT-686579.

           BY ADV SRI.P.C.HARIDAS
RESPONDENTS/RESPONDENTS:

    1      REJI JOSEPH,
           S/O. JOSEPH, MOOLECHALIL HOUSE, THALAPPALAM P.O.,
           KOTTAYAM DISTRICT-686579.

    2      ROSHAN JOSEPH,
           AGED 27 YEARS, S/O. JOSEPH ALIAS JOHNY,
           ALAPPAPATTUKUNNEL HOUSE, KALATHUKADAVU P.O.,
           KOTTAYAM DISTRCT-686579.

    3      NATIONAL INSURANCE CO. LIMITED,
           BRANCH OFFICE, PALA, PALA P.O., PIN-686575.

           ADV.K.S.SANTHI


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 26.06.2025, ALONG WITH MACA.1307/2020, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                 2025:KER:46398
MACA NOS.1043 & 1307 OF 2020

                                  2



            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

             THE HONOURABLE MRS. JUSTICE C.S. SUDHA

   THURSDAY, THE 26TH DAY OF JUNE 2025 / 5TH ASHADHA, 1947

                      MACA NO. 1307 OF 2020

        AGAINST THE AWARD DATED 14.08.2019 IN OPMV NO.513 OF

2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA

APPELLANT/PETITIONER:

           SEBASTIAN
           AGED 60 YEARS, S/O. YOHANNAN, POOTHAKUZHIYIL
           HOUSE, PLASSANAL P O, THALAPPALAM VILLAGE,
           KOTTAYAM DISTRICT, PIN - 686579.

           BY ADV SRI.P.C.HARIDAS
RESPONDENTS/RESPONDENTS:

    1      REJI JOSEPH
           S/O.JOSEPH, MOLLECHALIL HOUSE, THALAPPALAM P O,
           KOTTAYAM DISTRICT, PIN - 686579,

    2      ROSHAN JOSEPH,
           AGED 27 YEARS, S/O. JOSEPH ALIAS JOHNY,
           ALAPPAPATTUKUNNEL HOUSE, KALATHUKADAVU P O,
           KOTTAYAM DISTRICT, PIN - 686579.

    3      NATIONAL INSURANCE CO.LTD,
           BARNCH OFFICE, PALA, PALA P O, PIN - 686575.

           BY ADV SMT.K.S.SANTHI
     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 26.06.2025, ALONG WITH MACA.1043/2020, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                              2025:KER:46398
MACA NOS.1043 & 1307 OF 2020

                                      3




                             C.S.SUDHA, J.
             ----------------------------------------------------
                 M.A.C.A. Nos.1043 & 1307 of 2020
             ----------------------------------------------------
                Dated this the 26th day of June 2025

                           JUDGMENT

These appeals have been filed under Section 173 of the Motor

Vehicles Act, 1988 (the Act) by the claim petitioners in O.P.(MV)

Nos.512 & 513 of 2017 respectively on the file of the Motor

Accidents Claims Tribunal, Pala, (the Tribunal), aggrieved by the

amount of compensation granted by the common Award dated

14/08/2019. The respondents in both the appeals are respondents 1

to 3 respectively in the petitions. In these appeals, the parties and

the documents will be referred to as described in the original

petitions.

2. According to the claim petitioners, on 16/04/2017,

while the claim petitioner in O.P.(MV) No.513/2017 was riding

bike bearing registration no.KL5W7526 with the petitioner in 2025:KER:46398 MACA NOS.1043 & 1307 OF 2020

O.P(MV) No.512/2017, his wife, as pillion rider through Kalaketty-

Plassanal road and when they reached near the Carmilite Convent at

the place by name Plassanal, car bearing registration

no.KL05AE7907 driven by the second respondent in a rash and

negligent manner knocked them down, as a result of which they

sustained grievous injuries. A sum of ₹2,50,000/- was claimed by

the petitioner in O.P(MV) No.512/2017 and a sum of ₹2,80,000/-

was claimed by the petitioner in O.P(MV) No.513/2017 as

compensation under various heads.

3. The first respondent/owner of the offending vehicle

remained ex parte.

4. The second respondent/driver filed written statement

denying negligence on his part.

5. The third respondent/insurer filed written statement

admitting the existence of a valid policy in respect of the offending

vehicle. It was contended that the accident occurred due to the

negligence of the petitioner in OP(MV) No.513/2017. It was also 2025:KER:46398 MACA NOS.1043 & 1307 OF 2020

contended that the compensation claimed was quite excessive.

6. Before the Tribunal, no oral evidence was adduced by

either side. Exts.A1 to A16 were marked on the side of the claim

petitioners. No documentary evidence was adduced by the

respondents.

7. 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 ₹1,41,012/- in

OP(MV) No.512/2017 and ₹1,73,524/- in OP(MV) No.513/2017

together with interest @ 8% per annum from the date of the petition

till realisation along with proportionate costs. Aggrieved by the

Award, the claim petitioners have come up in appeal.

8. The only point that arises for consideration in these

appeals is whether there is any infirmity in the findings of the

Tribunal calling for an interference by this Court.

9. Heard both sides 2025:KER:46398 MACA NOS.1043 & 1307 OF 2020

10. The award of compensation by the Tribunal under the

following heads are challenged by the claim petitioners -

Notional income

It is submitted by the learned counsel for the claim petitioner

that the latter, a coolie aged 51 years, was earning an amount of

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

income at ₹10,000/- which is low and hence needs to be enhanced.

10.1. In the light of the dictum in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Co. Ltd, (2011)

13 SCC 236, I find that fixing the notional income of the claim

petitioner at ₹11,000/- would be just and reasonable.

Loss of earnings

11. The materials on record show that the claim petitioner

had sustained the following injuries:

"1) tenderness and contusion right knee

2) tibial spine fracture

3) fracture right tibia 2025:KER:46398 MACA NOS.1043 & 1307 OF 2020

4) minimally displaced fracture of right tibial spine and tibial intracondylar region"

She was hospitalized for a period of 5 days. In the light of the

injuries sustained, period of hospitalization and the medical

interventions she had to undergo, I find that, in all probability, she

might have been unable to work for a period of 8 months.

Therefore, she can be granted compensation towards loss of

earnings for a period of 8 months, which is ₹88,000/- (11,000 x 8).

Pain and suffering

12. It is pointed out that though an amount of ₹75,000/- was

claimed under this head, the Tribunal has granted an amount of

₹25,000/- only. In the light of the injuries sustained and the medical

interventions she had to undergo, I find that an amount of ₹60,000/-

under this head would be just and reasonable.

Compensation for loss of amenities

13. Though an amount of ₹30,000/- was claimed under this

head, the Tribunal has granted an amount of ₹15,000/- only which

is also stated to be on the lower side.

2025:KER:46398 MACA NOS.1043 & 1307 OF 2020

13.1. In the facts and circumstances of the case, I find that an

amount of ₹30,000/- as claimed under this head would be just and

reasonable.

Percentage of disability

14. It is pointed out by the learned counsel for the claim

petitioner that as per Ext.A11 disability certificate, though the

disability was fixed at 12%, the Tribunal has scaled it down to 5%.

Therefore, it is submitted that the disability may be fixed at 12%.

14.1. Ext.A11 disability certificate reads thus:

"This is to cerify that Smt.Leelamma Sebastian, 49 years, Poothakuzhiyil (H), Plassanal P.O., sustained fracture right tibial spine and tibial intercondylar region posteriorly following RTA on 16.04.2017 and had undergone treatment at Marian Medical Centre, Pala, as per the available records.

On 02.11.2018, I have examined her and following are the findings:

1. Partial ankylosis (Rt) knee: Motion limited to arc from 160ᵒ to 90ᵒ flexion.

2. She has pain (Rt) knee on long distance walking.

2025:KER:46398 MACA NOS.1043 & 1307 OF 2020

3. She has difficulty in squatting, climbing steps and slopes.

Considering the above findings, Smt.Leelamma Sebastian, 49 years, has disability of 12% (Twelve percentage) only." (Emphasis supplied)

In the light of the injuries sustained and taking into account

the fact that the claim petitioner is a coolie, the disabilities caused

would have certainly affected her occupational/functional ability

and therefore I find that the percentage of disability can be fixed as

12% relying on Ext.A11.

15. The impugned Award is modified to the following

extent:

Sl. Head of claim Amount Amount Modified in No. claimed Awarded by appeal (in ₹) Tribunal (in ₹) (in ₹)

1. Loss of earning 90,000/- 20,000/- 88,000/-

                                          (10,000 x 2)       (11,000 x 8)
 2.   Transport to        5,000/-           2,800/-            2,800/-
      hospital                                             (No Modification)
 3.   Extra               3,000/-           1,000/-            1,000/-
      nourishment                                          (No Modification)
 4.   Damage to           1,000/-           1,000/-            1,000/-
      clothing                                             (No Modification)
                                                            2025:KER:46398
MACA NOS.1043 & 1307 OF 2020




 5.   Medical and       15,000/-            7,712/-            7,712/-
      miscellaneous                                       (No Modification)
      expenses
 6.   Bystander         3,000/-             2,500/-            2,500/-
      expenses                                            (No Modification)
 7.   Pain and         75,000/-            25,000/-           60,000/-
      suffering
 8.   Compensation     2,34,000/-           66,000/-          1,74,240/-
      for disability                     (10,000 x 12 x   (11,000 x 12 x 11
                                           11 x 5/100)        x 12/100)
 9.   Compensation     30,000/-            15,000/-           30,000/-
      for loss of
      amenities
       Total           limited to         1,41,012/-         3,67,252/-
                       2,50,000/-




Notional income

16. It is submitted by the learned counsel for the claim

petitioner that the latter, a coolie aged 58 years, was earning an

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

the notional income at ₹10,000/- which is low and hence needs to

be enhanced.

16.1. In the light of the dictum in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Co. Ltd, (2011) 2025:KER:46398 MACA NOS.1043 & 1307 OF 2020

13 SCC 236, I find that fixing the notional income of the claim

petitioner at ₹11,000/- would be just and reasonable.

Loss of earnings

17. The materials on record show that the claim petitioner

had sustained the following injuries:

"1) lacerated wound 4 x 2 cm Left leg

2) abrasion right ankle

3) closed fracture 2nd, 3rd and 4th metatarsal left foot

4) soft tissue injury left distal 3rd leg with complete cut of extensor digetitorum tendon cut left foot"

He was hospitalized for a period of 5 days. In the light of the

injuries sustained, period of hospitalization and the medical

interventions he had to undergo, I find that, in all probability, he

might have been unable to work for a period of 5 months.

Therefore, he can be granted compensation towards loss of earnings

for a period of 5 months, which is ₹55,000/- (11,000 x 5).

Pain and suffering

18. It is pointed out that though an amount of ₹60,000/- was 2025:KER:46398 MACA NOS.1043 & 1307 OF 2020

claimed under this head, the Tribunal has granted an amount of

₹30,000/- only. In the light of the injuries sustained and the medical

interventions he had to undergo, I find that an amount of ₹50,000/-

under this head would be just and reasonable.

Compensation for loss of amenities

19. Though an amount of ₹50,000/- was claimed under this

head, the Tribunal has granted an amount of ₹20,000/- only which

is also stated to be on the lower side.

19.1. In the facts and circumstances of the case, I find that an

amount of ₹50,000/- as claimed under this head would be just and

reasonable.

Percentage of disability

20. It is pointed out by the learned counsel for the claim

petitioner that as per Ext.A15 disability certificate, though the

disability was fixed at 10%, the Tribunal has scaled it down to 6%.

Therefore, it is submitted that the disability may be fixed at 10%.

2025:KER:46398 MACA NOS.1043 & 1307 OF 2020

20.1. Ext.A15 disability certificate reads thus:

"This is to cerify that Mr.Sebastian P.G., 58 years, Poothakuzhiyil (H), Plassanal P.O., sustained closed fracture 2nd, 3rd and 4th metatarsals (Lt) foot, soft tissue injury (Lt) leg distal 3rd and complete cut of extensor digitorum longus tendon (Lt) following RTA on 16.04.2017 and had undergone treatment at Marian Medical Centre, Pala, as per the available records.

On 02.11.2018, I have examined him and following are the findings:

1. Partial ankylosis (Lt) ankle: flexion and extension motion limited to arc from 90ᵒ to 110ᵒ

plantar flexion.

2. He has pain (Lt) angle on walking long distance and has difficulty in speedy walking.

3. There is hypertrophic scar on distal 3rd of (Lt) leg.

4. There is sensory loss in the dorsum of (Lt) foot.

Considering the above findings, Mr.Sebastian P.G., 58 years, has disability of 10% (Ten percentage) only." (Emphasis supplied)

In the light of the injuries sustained and taking into account 2025:KER:46398 MACA NOS.1043 & 1307 OF 2020

the fact that the claim petitioner is a coolie, the disabilities caused

would have certainly affected his occupational/functional ability

and therefore I find that the percentage of disability can be fixed as

10% as fixed in Ext.A15.

21. The impugned Award is modified to the following

extent:

Sl. Head of claim Amount Amount Modified in No. claimed Awarded by appeal (in ₹) Tribunal (in ₹) (in ₹)

1. Loss of earning 60,000/- 20,000/- 55,000/-

                                           (10,000 x 2)       (11,000 x 5)
 2.   Transport to      3,000/-              2,800/-            2,800/-
      hospital                                              (No Modification)
 3.   Extra             3,000/-              1,000/-            1,000/-
      nourishment                                           (No Modification)
 4.   Damage to          1,000/-             1,000/-            1,000/-
      clothing                                              (No Modification)
 5.   Medical and       35,000/-             31,424/-           31,424/-
      miscellaneous                                         (No Modification)
      expenses
 6.   Bystander          4,000/-             2,500/-             2,500/-
      expenses                                              (No Modification)
 7.   Pain and          60,000/-             30,000/-           50,000/-
      suffering
 8.   Compensation      1,29,600/-           64,800/-           1,18,800/-
      for disability                      (10,000 x 12 x    (11,000 x 12 x 9 x
                                            9 x 6/100)           10/100)
                                                       2025:KER:46398
MACA NOS.1043 & 1307 OF 2020




 9.    Compensation    50,000/-           20,000/-      50,000/-
       for loss of
       amenities
      Total            limited to        1,73,524/-    3,12,524/-
                       2,80,000/-

In the result, MACA No.1043/2020 is allowed by enhancing

the compensation by a further amount of ₹2,26,240/- (total

compensation ₹3,67,252/- that is, ₹1,41,012/- granted by the

Tribunal plus ₹2,26,240/- granted in appeal) and MACA

No.1307/2020 is allowed by enhancing the compensation by a

further amount of ₹1,39,000/- (total compensation ₹3,12,524/- that

is, ₹1,73,524/- granted by the Tribunal plus ₹1,39,000/- 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 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 petitioners at the

earliest in accordance with law after making deductions, if any.