Kumar vs T.N Unnikrishnan
2025 Latest Caselaw 5431 Ker

Kerala High Court

Kumar vs T.N Unnikrishnan on 24 March, 2025

MACA NO. 2870 OF 2018

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             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
   MONDAY, THE 24TH DAY OF MARCH 2025 / 3RD CHAITHRA, 1947
                      MACA NO. 2870 OF 2018
 AGAINST THE AWARD DATED 29.09.2016 IN OPMV NO.2598 OF 2011
        OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR

APPELLANT/PETITIONER :-

         KUMAR, AGED 58 YEARS
         S/O UTHRALI, RESIDING AT 834, KADAMBATT HOUSE, P.O
         WADAKANCHERY, THRISSUR DISTRICT 680582

         BY ADVS.
         P.S.APPU
         A.R.NIMOD
RESPONDENTS/RESPONDENTS :-

    1    T.N UNNIKRISHNAN
         RESIDING AT THAZHATH HOUSE, P.O PURANATTUKARA,
         THRISSUR 680551

    2    SHAJU
         S/O.YOHANNA, RESIDINAT AT CHIRAYATH
         MOORKKANATTUKARA HOUSE, NEDUMPAL,P.O.THOTTIPPAL,
         THRISSUR-680310.

    3    THE ORIENTAL INSURANCE
         COMPANY LIMITED, ROUND WEST, THRISSUR-680001.

         BY ADV RINNY STEPHEN CHAMAPARAMPIL


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 24.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 2870 OF 2018

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                                 JUDGMENT

The petitioner in O.P.(M.V.) No.2598 of 2011 on the file of the

Motor Accident Claims Tribunal, Thrissur is the appellant herein. (For the

purpose of convenience, the parties are hereafter referred to as per their rank

before the Tribunal).

2. The petitioner filed the above O.P. under Section 166 of the

Motor Vehicles Act, 1988, claiming compensation for the injuries sustained

in a motor vehicle accident that occurred on 27.09.2011. According to the

petitioner, on 27.09.2011 at about 10.15 a.m., while he was riding a scooty, a

bus bearing Registration No.KL-8/Q-1461 driven by the 2 nd respondent in a

rash and negligent manner hit against the scooty. As a result of the accident,

the petitioner sustained serious injuries.

3. The 1st respondent is owner and 3rd respondent is the insurer of

the offending vehicle. According to the petitioner, the accident occurred due

to the negligence of the driver of the offending vehicle. The quantum of

compensation claimed in the O.P. is Rs.10,68,500/-, limited to

Rs.10,00,000/-.

4. The insurance company filed a written statement, admitting the MACA NO. 2870 OF 2018

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accident as well as policy, but disputing the negligence on the part of the

driver of the offending vehicle.

5. The evidence in the case consists of the documentary evidence

Exts.A1 to A14.

6. After evaluating the evidence on record, the Tribunal found

negligence on the part of the driver of the offending vehicle, awarded a total

compensation of Rs.2,16,350/-and directed the insurer to pay the same.

7. Aggrieved by the quantum of compensation awarded by the

Tribunal, the petitioner preferred this appeal.

8. Now the point that arises for consideration is the following:

Whether the quantum of compensation awarded by the

Tribunal is just and reasonable?

9. Heard Sri.Nimod A.R, the learned Counsel appearing for the

petitioner/appellant, and Smt.Rinny Stephen, the learned Standing Counsel

for the 3rd respondent.

10. The Point: In this case the accident as well as valid insurance

policy of the offending vehicle are admitted. One of the contentions raised by

the learned counsel for the petitioner is regarding the income of the petitioner

as fixed by the Tribunal. According to him, the petitioner was working as

Chemical mixturer earning Rs.25,000/- per month, but the Tribunal fixed his MACA NO. 2870 OF 2018

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monthly income at Rs.6,000/-. The learned counsel for the insurer would

argue that the income fixed by the tribunal is reasonable.

11. The learned counsel has also relied upon Ext.A12 salary

certificate to prove the income of the petitioner. However, nobody was

examined to prove the same. That is why the Tribunal has fixed his notional

income at Rs.6,000/-. It is true that the petitioner could not prove his income,

as claimed in the OP. However it is proved that the petitioner was a Chemical

mixturer by profession. As per the dictum laid down by the Hon'ble Supreme

Court in the decision in Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Co. Ltd. [2011 (13) SCC 236], the notional income of a

coolie, in the year 2011 will come to Rs.800/-. Therefore, the petitioner being

a Chemical mixturer by profession, his notional income is fixed at Rs.9000/-,

for the purpose of computing the loss of disability.

12. In the accident the petitioner sustained the following injuries:

"Right iliac wing fracture, open chip fracture lateral condyle and right humerus."

13. As per Exhibit A147 disability certificate issued by the Medical

Boar, the permanent physical disability of the petitioner was assessed as 60%.

However, the Tribunal has scaled down the percentage of disability to 15%.

The learned counsel for the petitioner relied upon the decision of this Court in MACA NO. 2870 OF 2018

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Thresiamma Sebastian v. Dr.Renu Swamidas in MACA No.1820 of 2021

decided on 02.08.2024, and would argue that in case, the insurance company

disputes the percentage of disability assessed by the Medical Board, it is the

burden of the insurance company to summon the doctor and prove their case.

In the above decision it was also held that in such circumstances, the burden

cannot be shifted to the shoulders of the claimant. The above decision of the

learned Single Bench was challenged before the Apex Court by filing Special

Leave Petition (Civil) Diary No.5996/2025,but the Apex Court dismissed the

SLP.

14. In the decision in Prakash Chand Sharma v. Rambabu

Saini & another [Arising out of SLP (C) No.3066 of 2024], the Apex Court

has held that: "if the Tribunal had reason to doubt the medical certificate, the

option available before it was to have the disability re-assessed, but it could

not have gone into the details of the determination of disability. Since that

course of action has not been adopted, the opinion of the Medical Board,

being an opinion of the experts is to be treated as such".

15. In the instant case, though the Medical Board assessed the

disability as 60% without giving any valid or cogent reasons, the Tribunal has

scaled down the percentage of disability to 15%. The learned counsel for the

insurer would argue that, as per the disability certificate, the Medical Board MACA NO. 2870 OF 2018

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has assessed visual disability also, while in the medical records there is no

evidence to show that the petitioner sustained injuries to his eye. However,

the learned counsel for the petitioner invited my attention to Ext.A1 FIS and

Ext.A5 charge sheet, in which there is specific allegation that the petitioner

sustained injury on his right eyebrow and forehead. As per the above

documents, the petitioner sustained injuries on his forehead, eyebrow and

right cheek. In the above circumstance, without examining the doctors who

constituted the Medical Board, the Tribunal was not justified in finding that

the disability to the eye of the petitioner was not caused by injuries sustained

in the accident. In the above circumstances, I am inclined to accept the

permanent physical disability of the petitioner as assessed by the Medical

Board at 60%.

16. On the date of accident, the petitioner was aged 51 years.

Therefore, 10% of the monthly income is to be added towards future

prospects, as held in the decision in National Insurance Co. Ltd v. Pranay

Sethi [(2017) 16 SCC 680] and the multiplier to be applied is 11, as held in

Sarla Verma v. Delhi Transport Corporation, [(2009) 6 SCC 121]. In the

above circumstances, the loss of disability will come to Rs.7,84,080/-.

17. Towards loss of earning, the tribunal has awarded only

Rs.24,000/- being the income for 4 months @Rs.6,000/-. Considering the MACA NO. 2870 OF 2018

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nature of the injuries sustained and the percentage of disability suffered by the

petitioner, the petitioner might have lost income at least for a period of 8

months. Therefore, towards 'loss of income' the petitioner is entitled to get a

sum of Rs.72,000/- (9,000 x 8 months).

18. Towards the head 'pain and sufferings', the Tribunal has

awarded Rs.20,000/ and towards 'loss of amenities of life' Rs.15,000/- was

awarded. According to the learned counsel for the petitioner, the

compensation awarded on those heads are on the lower side.

19. The petitioner sustained very serious injuries in the accident

and was treated as inpatient for 58 days. Because of the injuries sustained, the

percentage of disability suffered and the length of treatment undergone by the

petitioner, I hold that the compensation awarded by the Tribunal on the heads

'pain and sufferings' and 'loss of amenities of life' are on the lower side and

hence they are enhanced to Rs.75,000/- and Rs.1,00,000/- respectively.

20. No change is required, in the amounts awarded on other heads,

as the compensation awarded on those heads appears to be just and

reasonable.

21. Therefore, the petitioners/appellants are entitled to get a total

compensation of Rs.10,69,630/-, as modified and recalculated above and

given in the table below, for easy reference:

MACA NO. 2870 OF 2018

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Sl.

      No.           Head of Claim          Amount awarded by    Amount Awarded in
                                            Tribunal (in Rs.)     Appeal (in Rs.)


       1    Loss of earnings                       24,000               72,000

       2    Medical and miscellaneous              5,150                5,150
            expenses

       3    Bystander expenses                     17,400               17,400

       4    Transportation expenses                3000                  3000

       5    Extra nourishment                      12,000               12,000

       6    Damage to clothing                     1000                  1000

       7    Pain and suffering                     20000                75,000

       8    Compensation for loss of            1,18,800               7,84,080
            earning in future/disability

       9    Loss of amenities and                  15,000              1,00,000
            convenience etc

            Total                               216,350                10,69,630

            Enhanced to Rs.                                 8,53,280

22. In the result, this Appeal is allowed in part, and the 3rd

respondent is directed to deposit a total sum of Rs.10,69,630/- (Rupees Ten

Lakhs Sixty Nine Thousand Six Hundred and Thirty only), less the amount

already deposited, if any, along with interest at the rate ordered by the

Tribunal), from the date of the petition till deposit/realisation, excluding

interest for a period of 558 days, the period of delay in filing the appeal, with MACA NO. 2870 OF 2018

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proportionate costs, within a period of two months from today. (Enhanced

compensation will carry interest @8%).

On depositing the aforesaid amount, the Tribunal shall disburse the

entire amount to the petitioner, excluding court fee payable, if any, without

delay, as per rules.

Sd/-

C. PRATHEEP KUMAR, JUDGE SMA