Kerala High Court
Jayasurya @ Jayan vs Raju on 7 March, 2025
MACA NO. 668 OF 2018 1 2025:KER:19981
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946
MACA NO. 668 OF 2018
AGAINST THE AWARD DATED 28.10.2017 IN OPMV NO.951
OF 2010 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
MAVELIKKARA
APPELLANT/PETITIONER:
JAYASURYA @ JAYAN, PANATHODATHU VEEDU,
EDAYARANMULA CHERI, ARANMULA NOW RESIDING AT
VADAKKEVILA VEEDU, KALLUMALA P.O., MAVELIKKARA.
BY ADVS.
SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.P.J.JOE PAUL
RESPONDENTS/RESPONDENTS:
1 RAJU, KATTUVILA PUTHEN VEEDU, NEAR EZHAMKUTTI,
KARINGANOOR CHERI, VELINALLOOR-691510.
2 SURESH BABU, DEVANATHA HOUSE, NEDUGOLAM P.O.,
PARAVUR, KOLLAM-691301.
3 ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD.
D1 2ND FLOOR, AMRITHA NIVAS, KPCC, JUNCTION,
OPP. MAHARAJA GROUND, M. G. ROAD, COCHIN-682016.
ADV.SRI. P. JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 07.03.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
The petitioner in O.P.(M.V.) No. 951/2010 on the file of
the Motor Accident Claims Tribunal, Mavelikkara has filed this
appeal seeking enhancement of compensation awarded by the
Tribunal on account of the injuries sustained by him in a
motor accident that occurred on 02.02.2010.
2. The case of the petitioner in brief is as follows:-
On 02.02.2010, at 09.00 a.m., while the petitioner was
driving a car bearing registration No. KL-4-X-234 with four
passengers along Kollam-Thiruvananthapuram National
Highway, and when the car reached near Varanam Cheriyil
Para Junction, a lorry bearing registration No. KL-02-R-5706
driven by the first respondent in a rash and negligent manner
came from the opposite direction, hit on the car driven by the
petitioner. Due to the impact of the hit, the petitioner as well
as the passengers in the car sustained very serious injuries.
3. The driver and the owner of the lorry bearing
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registration number KL-02-R-5706 were arrayed as the first
and second respondents respecitvely, whereas, the Insurer of
the said lorry was arrayed as the third respondent.
4. The third respondent contested the petition by
filing a written statement mainly disputing the quantum of
compensation claimed. However, the third respondent
admitted the insurance coverage for the vehicle involved in
the accident. During the trial, from the side of the petitioner,
two witnesses were examined as PW1 and PW2 and marked
Exts. A1 to A26. From the side of the respondents, no
evidence, whatsoever, has been produced.
5. After trial, the tribunal came to a conclusion that
the accident occurred solely due to the rash and negligent
driving of the lorry by the first respondent and the third
respondent, being the insurer, was held liable to pay the
compensation. The compensation was fixed at Rs. 5,33,283/-,
with interest at the rate of 7.5% per annum from the date of
petition till realisation with proportionate costs. Dissatisfied by
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the quantum of compensation awarded, the petitioner has
come up with this appeal.
6. Heard Sri.George Varghese Perumpallikuttiyil, the
learned counsel appearing for the appellant, and Sri. Jacob
Mathew, the learned counsel appearing for the third
respondent, the Insurance Company.
7. From the rival contentions raised, it is gatherable
that the main dispute that revolves around this appeal is with
respect to the quantum of compensation awarded by the
tribunal. The learned counsel for the petitioner would submit
that the compensation awarded by the Tribunal under various
heads is too meager and the impugned award was passed
without considering the gravity and the nature of the injuries
sustained to the petitioner in the accident as well as the
consequent hardships and inconveniences caused to him. Per
contra, the learned counsel for the third respondent, the
Insurance Company would submit that the compensation
awarded by the Tribunal is just, fair, reasonable, and adequate
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and warrants no interference.
8. From a perusal of the award, it is gatherable that
for the purpose of determining the compensation under the
head of permanent disability and loss of earnings, the Tribunal
assessed the monthly income of the petitioner at Rs.5,000/-.
In the petition, it is claimed that the petitioner was a driver by
profession earning a monthly income of Rs. 7,500/-. In order
to prove the occupation, the petitioner had produced a driving
license along with a badge permitting him to drive heavy
vehicles. However, the production of a driving license alone is
not sufficient to enter into an automatic conclusion that the
petitioner was a driver by profession. Merely because of the
reason that a person is holding a driving license, it cannot be
presumed that he is engaged in the profession of driving.
Moreover, no evidence, whatsoever, has been produced from
the side of the petitioner to prove the actual income of the
petitioner. Anyhow, it is an admitted fact that the accident in
this case was occurred in the year 2010. Therefore, in view of
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the principle laid down in Ramachandrappa v. Manager,
Royal Sundaram Alliance Insurance Company Ltd.
[(2011) 13 SCC 236], the Tribunal ought to have assessed
the monthly income of the petitioner at Rs. 7,500/- notionally.
However, no additions can be made to the said income
towards future prospects as there is no convincing evidence or
materials suggesting that the injury sustained by the
petitioner in the accident had a profound impact on the future
earning capacity of the petitioner. The disability certificate
issued by a single doctor was marked in evidence as Ext.A12.
Moreover, the doctor, who issued the disability certificate was
examined as PW1 from the side of the petitioner. A conjoint
reading of the evidence of PW1 and the disability certificate
issued by him reveals that the petitioner suffered a disability
of 20% due to the injuries sustained in the accident. However,
without assigning any convincing reason, the Tribunal scaled
down the disability to 12%. The medical records marked in
evidence in this case show that the petitioner had sustained
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the following injury in the accident:- Type III A open fracture,
fracture patella right distal femur type C2 right side. The nature
of the injuries sustained by the petitioner will certainly justify
the assessment of the disability made by the doctor at 20%.
I find no justification to scale down the said disability assesed
by the doctor. The petitioner was aged 30 at the time of the
accident. In view of the dictum laid down in Sarla Verma v.
Delhi Transport Corporation [2010 (2) KLT 802 (SC)], the
multiplier to be reckoned is 17. Resultantly, the petitioner is
entitled to get an amount of Rs. 3,06,000/- [Rs. 7,500/- x 12
x 17 x 20/100]. Already an amount of Rs. 1,83,600/- has
been awarded by the Tribunal under the said head. After
deducting the said amount, the petitioner is found entitled to
get an amount of Rs. 1,22,400/- (Rupees One Lakh and
Twenty Two Thousand Four Hundred only) (Rs.3,06,000 -
Rs.1,83,600) as additional compensation under the head of
permanent disability.
9. Consequent to the revision in the monthly income,
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a corresponding enhancement must be made to the
compensation awarded under the head of loss of earnings.
The nature of the injuries which, I have mentioned above
persuades me to enter into a conclusion that the petitioner
would have been prevented from doing any work or earning
any income at least for one year. If that be so, the petitioner
is entitled to get an amount of Rs.90,000/- [Rs. 7,500 x 12]
under the head of compensation for loss of earnings entailing
him to get an additional compensation of Rs. 50,000/-
(Rupees Fifty Thousand only) under the said head.
10. The medical records produced in this case reveal
that the petitioner had undergone 30 days of inpatient
treatment in connection with the accident. The pain and
suffering endured by him due to the injuries sustained in the
accident as well as the treatment procedures undergone by
the petitioner cannot be overlooked while awarding the
compensation under the head of pain and suffering. The
tribunal awarded an amount of Rs. 30,000/- under the said
MACA NO. 668 OF 2018 9 2025:KER:19981
head. I am of the considered view that the said amount is on
the lower side. Therefore, the petitioner is found entitled to
get an amount of Rs. 60,000/- under the said head. Hence,
the petitioner is found entitled to get an additional
compensation of Rs.30,000/- (Rupees Thirty Thousand only)
(Rs. 60,000 - Rs. 30,000/-) under the said head. Therefore,
an amount of Rs. 2,02,400/- (Rs.1,22,400/- + Rs.50,000/- +
30,000/-) has to be added towards the total compensation
awarded.
In the light of the aforesaid observations and findings,
the appeal is allowed by enhancing the compensation by a
further amount of Rs.2,02,400/- (Rupees Two Lakhs Two
Thousand and Four Hundred only) with interest at the rate of
7.5% per annum on the enhanced compensation from the
date of claim petition till the date of deposit. The respondent
insurance company is ordered to deposit the enhanced
compensation with interest before the tribunal with
proportionate costs within a period of three months from the
MACA NO. 668 OF 2018 10 2025:KER:19981
date of receipt of a certified copy of the judgment.
Immediately on the compensation amount being deposited,
the tribunal shall, after deducting the liability of the
appellant/petitioner towards the court fee, disburse the
compensation amount to the appellant/petitioner in
accordance with law.
Sd/-
JOBIN SEBASTIAN
JUDGE
DCS
