Kerala High Court

Benny vs National Insurance Company Ltd on 18 September, 2025

                                              2025:KER:69541

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

           THE HONOURABLE MRS. JUSTICE C.S. SUDHA

THURSDAY, THE 18TH DAY OF SEPTEMBER 2025 / 27TH BHADRA, 1947

                   MACA NO. 1348 OF 2020

     AGAINST THE AWARD DATED 11.12.2018 IN OPMV NO.424 OF

2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR

APPELLANT/PETITIONER:

         BENNY
         AGED 48 YEARS
         S/O.ROSY, VALIYAVEETTIL HOUSE, NANTHIYATTUKUNNAM,
         N.PARAVUR-683513.

         BY ADV SRI.A.N.SANTHOSH
RESPONDENT/2ND RESPONDENT

         NATIONAL INSURANCE COMPANY LTD.
         N.PARAVUR-683513, REPRESENTED BY ITS MANAGER.

         BY ADV SRI.N.S.NAJEEB


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 18.09.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                                              2025:KER:69541
MACA NO. 1348 OF 2020

                                      2



                             C.S.SUDHA, J.
             ----------------------------------------------------
                      M.A.C.A. No.1348 of 2020
             ----------------------------------------------------
             Dated this the 18th 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.424/2017 on the file of the Motor Accidents Claims Tribunal,

North Paravur, (the Tribunal), aggrieved by the amount of

compensation granted by Award dated 11/12/2018. The sole

respondent herein is the second respondent/insurer in the petition.

In this appeal, the parties and documents will be referred to as

described in the original petition.

2. According to the claim petitioner, on 25/08/2017 at

about 09:15 p.m., while he was standing on the southern side of

Mookambi road near KSRTC bus stand, motorcycle bearing

registration no.KL-7/AX-2858 ridden by the first respondent in a

rash and negligent manner knocked him down, as a result of which 2025:KER:69541 MACA NO. 1348 OF 2020

he sustained grievous injuries. A sum of ₹5,00,000/- was claimed as

compensation under various heads.

3. The first respondent/owner-cum-rider of the offending

vehicle filed written statement denying negligence on his part. The

age, occupation, income, etc., of the claim petitioner were disputed.

It was also contended that the amount claimed as compensation was

quite excessive.

4. The second respondent/insurer filed written statement

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

vehicle, but denied negligence on the part of the first

respondent/owner-cum-rider. The age, occupation, income, etc., of

the claim petitioner were disputed. It was also contended that the

amount claimed as compensation was quite excessive.

5. The third respondent/previous owner of the offending

vehicle remained ex parte.

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

either side. Exts.A1 to A8 were marked on the side of the claim 2025:KER:69541 MACA NO. 1348 OF 2020

petitioner. No documentary evidence was produced by the

respondents.

7. The Tribunal on consideration of the documentary

evidence and after hearing both sides, found negligence on the part

of the first respondent/owner-cum-rider of the offending vehicle

resulting in the incident and hence awarded an amount of

₹3,47,300/- together with interest @ 9% per annum along with

proportionate costs. Aggrieved by the Award, the claim petitioner

has come up in appeal.

8. 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.

9. Heard both sides

10. 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 2025:KER:69541 MACA NO. 1348 OF 2020

that the latter, a fisherman, was earning ₹20,000/- per month.

However, the Tribunal fixed the notional income at ₹10,000/-

which is low even going by the dictum in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Co. Ltd, (2011) 13

SCC 236.

10.1. There are no materials on record to substantiate the

claim regarding the income. However, going by the dictum in

Ramachandrappa (Supra), the income of even a coolie in the year

2017 is liable to be fixed at ₹11,000/-. Hence, the notional income

of the claim petitioner can also be fixed as ₹11,000/- per month.

Loss of earnings

11. The materials on record show that following injuries

were sustained by the claim petitioner:

"1) pain and deformity on right foot.

2) fracture of right tibia and fibula"

The claim petitioner was hospitalized for a period of 8 days.

Taking into account the nature of injuries sustained, which include 2025:KER:69541 MACA NO. 1348 OF 2020

two fractures and also the surgery undergone, in all probability, he

might have been unable to work for a period of 6 months.

Therefore, I find that he can be granted compensation towards loss

of earnings for a period of 6 months, which comes to ₹66,000/-

(11,000 x 6 months).

Loss of amenities

12. Though an amount of ₹1,00,000/- was claimed, the

Tribunal has granted an amount of ₹21,000/- only. In the facts and

circumstances of the case, I find that an amount of ₹55,000/- under

this head would be just and reasonable.

Percentage of disability

13. The learned counsel for the claim petitioner submitted

that in the light of Ext.A6 disability certificate, which has fixed the

disability as 13.90%, the Tribunal was not justified in scaling it

down to 7% without assigning any reasons. Hence, the same has to

be fixed according to Ext.A6.

13.1. I have already referred to the injuries sustained by the 2025:KER:69541 MACA NO. 1348 OF 2020

claim petitioner. Ext.A6 disability certificate reads thus:

"This is to certify that Mr.Benny 49, s/o joseph, Valiayaveetil House N.Paravur, P.O. following alleged RTA on 25/8/17 was admitted in S.N Medical College Hospital, Chalakka as IP NO 52585 on 25/8/17 for

1. Fracture Both Bones Rt leg and managed by wound debridement, Closed IM Nailing Rt leg, and discharged on 2/9/17.

Now on clinical and radiological examination he is having

1. Fracture rt tibia united with implant in situ and rt fibula malunited

2. Shortening of 1 cm of right leg component 3 Limitation of plantar flexion and dorsiflexion and inversion 15% and eversion of Right ankle of 15% and flexion and extension of right toes of 15% each 7.20% Weakness of plantar flexion, dorsiflexion, inversion, eversion, of right foot and flexion and extension of Right toes of 20% each

8. Paraesthesia of Right leg medial side due to post traumatic cutaneous neurolysis Functionally he is having difficulty to

1) climb up and down, to squat, to stand on Right Lower limb for >2 mts and to walk for more than 100 mtrs, to run, to jump, to stand on RIGHT tiptoes, to press, pedal, kick with Right foot.

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

1. Right Lower Limb

1. Mobility:- a Right Ankle and Foot :- ROM-3% Strength :-3 Total=5.9%

2. Stability=33% 2025:KER:69541 MACA NO. 1348 OF 2020

Total =33+(5.9x57/90) =33+3.73=36.73%

3. Extras =Malunion, Pain, implant, shortening=2% Total for Right Lower Limb=38.73 Total for Whole body in relation to RLL=38.73%x35=13.90% He is assessed to have a permanent disability for whole body as per National Guidelines as 13.90% (Thirteen point ninty percentage) only."

It is true that the doctor who issued Ext.A6 was not examined

before the court. However, taking into account the injuries

sustained and the avocation of the claim petitioner, who is stated to

be a fisherman, based on the dictum in Raj Kumar v. Ajay Kumar,

(2011) 1 SCC 343, I find that the functional disability of the claim

petitioner can be fixed as 10%.

14. 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 earnings 1,00,000/- 30,000/- 66,000/-

                                          (10,000 x 3)      (11,000 x 6)
 2.   Transportation          5,000/-       4,000/-           4,000/-
      expenses                                           (No Modification)
                                                           2025:KER:69541
MACA NO. 1348 OF 2020





 3.   Bystander expenses     50,000/-       4,000/-           4,000/-
                                                         (No Modification)
 4.   Damage to clothing     5,000/-        2,000/-           2,000/-
      and articles                                       (No Modification)
 5.   Medical expenses      1,00,000/-      66,100/-         66,100/-
                                                         (No Modification)
 6.   Extra nourishment      5,000/-        6,000/-           6,000/-
                                                         (No Modification)
 7.   Pain and sufferings   1,50,000/-     80,000/-          80,000/-
                                                         (No Modification)
 8.   Loss of amenities     1,00,000/-     21,000/-          55,000/-
 9.   Compensation for      3,50,000/-     1,09,200/-       1,71,600/-
      disability                          (10,000 x 12     (11,000 x 12
                                          x13x 7/100)      x13x 10/100)
 10. Partial loss of         30,000/-         Nil              Nil
     earnings                                            (No Modification)
 11. Loss of earning        1,50,000/-        Nil              Nil
     power                                               (No Modification)
 12. Future treatment           -          25,000/-          25,000/-
     expenses                                            (No Modification)
      Total                 10,45,000/-   3,47,300/-        4,79,700/-
                             limited to
                             5,00,000/-

In the result, the appeal is allowed by enhancing the

compensation by a further amount of ₹1,32,400/- (total

compensation = ₹4,79,700/- that is, ₹3,47,300/- granted by the

Tribunal plus ₹1,32,400/- granted in appeal) with interest at the rate

of 8% per annum from the date of petition till date of realization 2025:KER:69541 MACA NO. 1348 OF 2020

(excluding the period of 462 days delay in filing the appeal) and

proportionate costs. The second 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 petitioner at the earliest in accordance with law after making

deductions, if any.