Kerala High Court

Manoj Kumar T.V vs The New Inidia Assurance Company Ltd on 8 September, 2025

M.A.C.A.No.999 of 2020

                                  1

                                                2025:KER:66817
             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

              THE HONOURABLE MRS. JUSTICE C.S. SUDHA

 MONDAY, THE 8TH DAY OF SEPTEMBER 2025 / 17TH BHADRA, 1947

                         MACA NO. 999 OF 2020

        AGAINST THE AWARD DATED 20.09.2019 IN OPMV NO.441 OF

2017 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,

IRINJALAKUDA.

APPELLANT/PETITIONER:

             MANOJ KUMAR T.V.
             AGED 52 YEARS,
             S/O. VELAYUDHAN, THEKKETHALA HOUSE,
             NEAR MUNICIPAL BUS STAND,
             IRINJALAKUDA P.O,
             MUKUNDAPURAM TALUK,
             THRISSUR DISTRICT 680 121


             BY ADV SHRI.A.N.SANTHOSH

RESPONDENT/3RD RESPONDENT:

             THE NEW INIDIA ASSURANCE COMPANY LTD
             2ND FLOOR, K.K ABDU BUILDING,
             ROOM NO. 4/1145, VADAKKENADA,
             KODUNGALLUR 680 664
             REPRESENTED BY ITS MANAGER.

             BY ADVS.
             SMT.K.S.SANTHI
             SMT.LATHA SUSAN CHERIAN



       THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 08.09.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 M.A.C.A.No.999 of 2020

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                                                              2025:KER:66817



                              C.S.SUDHA, J.
                ----------------------------------------------------
                          M.A.C.A.No.999 of 2020
                ----------------------------------------------------
                Dated this the 8th day of September 2025

                               JUDGMENT

This appeal has been filed under Section 173 of the

Motor Vehicles Act, 1988 (the Act) by the claim petitioner in

O.P.(MV) No.441/2017 on the file of the Motor Accidents

Claims Tribunal, Irinjalakuda (the Tribunal), aggrieved by the

amount of compensation granted by Award dated 20/09/2019.

The 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

15/12/2016 at about 08:30 a.m., while he was riding motorcycle

bearing registration no.KL-45-H-1831 through Irinjalakuda -

Kodungallur public road and when he reached at Karupadana

Palli nada, car bearing registration no.KL-07-T-777 driven by the

2025:KER:66817 second respondent in a rash and negligent manner knocked him

down, as a result of which he sustained grievous injuries.

3. The first respondent-owner and the second

respondent-driver of the offending vehicle remained ex-parte.

4. The third respondent-insurer filed written

statement admitting the policy but denying negligence on the part

of the second respondent. The compensation claimed under

various heads was contended to be exorbitant.

5. Before the Tribunal, no oral evidence was

adduced by either side. Exts.A1 to A12 were marked on the side

of the claim petitioner. Ext.B1 was marked on the side of the

third respondent.

6. 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 ₹2,26,600/- together with interest @ 8% per annum

from the date of the petition till realisation along with

2025:KER:66817 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 is challenged by the claim petitioner-

Notional income

It is submitted by the learned counsel for the claim

petitioner that the notional income of ₹15,000/- fixed by the

Tribunal is against the dictum in Raju Sebastian v. United

India Insurance Co. Ltd, 2021 (5) KHC 662 wherein the

income after retirement of the claimant was fixed as half of the

monthly income that he was drawing while in service. Ext.A11

certificate will show that he was earning ₹52,128/- per month and

therefore the Tribunal was not justified in fixing the notional

income at ₹15,000/- in the light of the dictum in Raju Sebastian

2025:KER:66817 (Supra), goes the argument.

9.1. Ext.A11 shows that the claim petitioner was

drawing ₹52,128/- as his salary. In the light of the judgment

dated 18/08/2025 of this Court in MACA No.576 of 2020

(Surendran v. Branch Manager, United India Insurance

Company Ltd.), I find that the notional income for the period

after his retirement can be fixed as ₹26,000/- per month.

Loss of earnings

10. An amount of ₹3,00,000/- was claimed. The

Tribunal did not grant any amount under this head. Hence the

learned counsel for the claim petitioner submitted that the

Tribunal went wrong in not awarding any amount when evidence

on record shows that he was on leave for three months. Per

contra, it is submitted by the learned counsel for the third

respondent-insurer that there is no evidence to show that there

was any loss of earnings and hence the Tribunal was right in not

awarding any amount. Therefore, no interference is called for.

10.1. It is true that the claim petitioner was in service

2025:KER:66817 and there is no evidence to show that there was any loss of

income while he was in service. However, the materials on

record show that he had availed three months leave pursuant to

the accident. This leave as pointed out by the learned counsel for

the claim petitioner could have been availed for some other

purpose. Therefore, I find that an amount of ₹50,000/- in the

facts and circumstances of the case would be just and reasonable.

Permanent disability

11. It is submitted by the learned counsel for the

claim petitioner that as per Ext.A8 disability certificate, the

percentage of disability has been assessed as 13.35%. However,

the Tribunal wrongly referred to the disability fixed by the doctor

as 9.45% and consequently scaled down the functional disability

to 5%, which is apparently wrong in the light of the materials on

record. Per contra, it is submitted by the learned counsel for the

third respondent-insurer that it is the functional disability that has

been fixed and therefore, there is no infirmity calling for an

interference.

2025:KER:66817 11.1. The materials on record show that the claim

petitioner sustained the following injuries-

" 1. Fracture (Rt) tibial condyle sctzker type VI.

2. Fracture proximal phalanx of (Rt) big toe."

11.2. Ext.A8 disability certificate reads thus-

" DISABILITY CERTIFICATE 8/12/17

This is to certify that Mr. Manojkumar, 50, s/o Velayudhan, Thekkethala, P.O. Irinjalakuda, following alleged RTA on 15/12/16 was admitted on 15/12/16 in Jubilee Mission Medical College Hospital, Trichur as HP No. S 552317.

1.Fracture Rt Tibial Condyle Sctzker Type VI.

2.Fracture Left Temporomandibular joint.

3. Fracture Proximal Phalanx of Rt Big toe.

4. Nail avulsion of Rt Big toe.

and managed by ORIF and discharged on 30/12/16

Now on clinical and radiological examination he is having

1. Fracture Rt Tibial Lateral Condyle malunited with 30% fibrous and rest bony union with implants in rt knee.

2. Anterolateral instability of right knee.

2. Limitation of flexion of right knee from 90 deg and lateral rotation of rt knee from 10 deg due to soft tissue

2025:KER:66817 fibrosis and adhesions at injured site and partial ankylosis of right knee with pain on terminal degrees.

3. Weakness of right knee extensors of 20% and flexors of 20% due to musculotendinous injuries at fracture, site

4. Thin adherent ugly scar on rt leg 10 cms.

Functionally he cannot squat, sit cross legged and is having difficuty to climb up and down, to stand on right lower limb for long to kneel, to run, jump, walk on uneven grounds, to drive auto.

He is assessed to have a permanent disability as per National Guidelines as

1.Right Lower Limb:-

a. Mobility:-

i) Right Knee :- ROM:-6% Strength :- 3% Total =8.8%

b.Stability :- 27%

Total :- 30(.8.8X 60/90) =30+5.86= =35.86%

Extras; Fibrous union, Scar, pain =3

Total for Right Lower Limb =38.16%

Total for whole body in relation to right lower limb

=38.16x35 =13.35%

He is assessed to have a permanent disability for whole body as per National Guidelines as 13.35% (Thirteen point thirty five) only."

Therefore, the finding in paragraph 13 of the impugned Award

2025:KER:66817 that the doctor has assessed the whole body disability as 9.45% is

apparently incorrect. The total whole body disability has been

assessed as 13.35%. Therefore, taking into account the disability

caused, the functional disability can be fixed as 10%.

Loss of amenities

12. An amount of ₹50,000/- was claimed. The

Tribunal granted an amount of ₹25,000/-. In the facts and

circumstances of the case, an amount of ₹45,000/- would be just

and reasonable under this head.

13. The impugned Award is modified to the

following extent:

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

1. Loss of earnings 3,00,000/- Nil 50,000/-

2. Transportation 10,000/- 3,000/- 3,000/-

          expenses                                           (No modification)
3.         Damage to            5,000/-         2,000/-          2,000/-
            clothing                                         (No modification)


4.          Extra              10,000/-         1,000/-          1,000/-
         nourishment                                         (No modification)
5.        Bystander's          10,000/-         4,500/-          4,500/-
           expenses                                          (No modification)




                                                       2025:KER:66817
6.          Medical       1,50,000/-       60,090/-        60,090/-
            expenses                                    (No modification)
7.          Pain and      1,00,000/-       50,000/-        50,000/-
           sufferings                                   (No modification)
8.         Permanent      2,00,000/-       81,000/-       2,80,800/-
           disability                                    (26,000/- x
                                                       10/100 x 12 x 9)
9.      Loss of earning   3,00,000/-         Nil              Nil
            power                                       (No modification)
10.         Loss of        50,000/-        25,000/-        45,000/-
           amenities
11.      Disfiguration     50,000/-          Nil              Nil
                                                        (No modification)
12.     Anticipated        50,000/-          Nil             Nil
       medical expense                                  (No modification)
13.    Mental dejection    50,000/-          Nil             Nil
       and unhappiness                                  (No modification)
            in life
             Total        14,85,000/-     2,26,590/-      4,96,390/-
                          is limited to   rounded to
                           6,00,000/-     2,26,600/-

In the result, the appeal is allowed by enhancing the

compensation by a further amount of ₹2,69,790/- (total

compensation = ₹4,96,390/- that is, ₹2,26,600/- granted by the

Tribunal + ₹2,69,790/- 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 142 days delay in filing the appeal) and

proportionate costs. The third respondent/insurer is directed to

2025:KER:66817 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.