KUMAR v. T.N UNNIKRISHNAN, SHAJU & ORIENTAL INSURANCE COMPANY LIMITED

``` MACA NO. 2870 OF 2018 ``` ``` 1 ``` ``` 2025:KER:28654 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR MONDAY, THE 24[TH] 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`** ``` 2SHAJU S/O.YOHANNA, RESIDINAT AT CHIRAYATH MOORKKANATTUKARA HOUSE, NEDUMPAL,P.O.THOTTIPPAL, THRISSUR-680310. ``` ``` 3THE 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 ``` ``` 2 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:28654 ``` ## **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 1[st] respondent is owner and 3[rd] 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 ``` ``` 3 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:28654 ``` 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 3[rd ] 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 ``` ``` 4 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:28654 ``` 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 ``` ``` 5 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:28654 ``` **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 ``` ``` 6 ``` **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:28654` 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 ``` ``` 7 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:28654 ``` 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 ``` ``` 8 ``` **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:28654` |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded by**<br>**Tribunal (in Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of earnings|24,000|72,000| |2|Medical and miscellaneous<br>expenses|5,150|5,150| |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<br>earning in future/disability|1,18,800|7,84,080| |9|Loss of amenities and<br>convenience etc|15,000|1,00,000| ||**Total**|**216,350**|**10,69,630**| ||**Enhanced to Rs. 8,53,280**||| 22. In the result, this Appeal is allowed in part, and the 3[rd] 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 ``` ``` 9 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:28654 ``` 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