Kerala High Court
Abhilash vs National Insurance Co. Ltd on 10 June, 2025
M.A.C.A. No. 526 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 10TH DAY OF JUNE 2025 / 20TH JYAISHTA, 1947
MACA NO. 526 OF 2020
AGAINST THE AWARD DATED 25.09.2019 IN OP(MV)NO.164
OF 2015 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS
TRIBUNAL, NEYYATTINKARA.
APPELLANT/APPLICANT:
ABHILASH,
AGED 18 YEARS,
S/O.VINUKUMAR, VISHNU BHAVAN,
THEMBAMUTTOM, BALARAMAPURAM.P.O.,
THIRUVANANTHAPURAM - 695 501.
BY ADVS.
SRI.R.T.PRADEEP
SMT.M.BINDUDAS
SRI.K.C.HARISH
RESPONDENT/3RD RESPONDENT:
NATIONAL INSURANCE CO. LTD.,
REPRESENTED BY THE DIVISIONAL MANAGER,
ST.JOSEPH'S PRESS BUILDING, VAZHUTHACAUD,
THIRUVANANTHAPRUAM-695 014.
BY ADV SHRI.LAL K.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 05.06.2025, THE COURT ON 10.06.2025 DELIVERED THE
FOLLOWING:
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C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A. No. 526 of 2020
----------------------------------------------------
Dated this the 10th day of June, 2025
JUDGMENT
This appeal under Section 173 of the Motor Vehicles
Act, 1988 (the Act) has been filed by the claim petitioner in O.P.
(MV) No.164/2015 on the file of the Motor Accidents Claims
Tribunal, Neyyattinkara, (the Tribunal), aggrieved by the amount
of compensation granted by Award dated 25/09/2019. The sole
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
02/01/2015 at 09:30 am, while he was walking along the
Balaramapuram-Kattakada public road, motorcycle bearing
registration no. KL-20-G-8734, ridden by the second respondent,
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rashly and negligently knocked him down causing grievous
injuries to him.
3. The first respondent/owner and the second
respondent/rider remained ex parte.
4. The third respondent/insurer filed written
statement admitting the existence of a valid policy in respect of
the offending vehicle, but contended that the amount claimed was
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. No documentary evidence was adduced
by the respondents.
6. The Tribunal on consideration of the
documentary evidence and after hearing both sides, found
negligence on the part of the second respondent/rider of the
motorcycle resulting in the incident and hence awarded an
amount of ₹1,31,000/- together with interest @ 8% per annum
from the date of the petition till the date of realisation with
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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. It was quite vehemently argued by the learned
counsel for the claim petitioner that the Tribunal committed a
gross illegality/mistake in relying on the dictum in Master
Mallikarjun v. Divisional Manager, National Insurance
Co.Ltd., 2013 KHC 4670 ; (2014) 14 SCC 396 in granting
compensation. Ext.A9 disability certificate shows that due to the
injuries, 13% permanent disability was caused to the claim
petitioner. Therefore, the Tribunal based on the dictum in Raj
Kumar v. Ajay Kumar, (2011) 1 SCC 343 ought to have taken
the functional disability as 26%. However, the Tribunal without
any reason or justification fixed the disability at 7%, which is
liable to be interfered with. It was also submitted that if the
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Tribunal had any doubts about Ext.A9 certificate, it ought to have
referred the claim petitioner to a Medical Board or summoned the
doctor concerned to get necessary clarifications, and fix the
percentage of disability accordingly. In support of the
arguments, reference was made to the dictums in Kajal v.
Jagdish Chand, (2020) 4 SCC 413 ; Master Ayush v. Branch
Manager, Reliance General insurance Company Limited,
(2022) 7 SCC 738 and Branch Manager, United India
Insurance Company Limited v. Mujeeb Rahman A.P., 2025
(1) KHC 606.
10. Per contra, it was submitted by the learned
counsel for the third respondent/insurer that the Tribunal has not
committed any infirmity in relying on the dictum in Master
Mallikarjun (Supra) and granting compensation and therefore
the Award calls for no interference.
11. The claim petitioner was a 13 year old boy
when the incident occurred on 02/01/2015. Ext.A2 wound
certificate; Ext.A3 discharge summary and Ext.A9 disability
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certificate show the injuries sustained in the incident. Ext.A3
discharge summary dated 14/01/2015 issued by the Medical
College Hospital, Thiruvananthapuram reads thus –
“FINAL DIAGNOSIS
BIMALLEOLAR # (TYPE 2 EPIPHYSEAL INJURY
LATERAL MALLEOLUS, TYPE 1 EPIPHYSEAL INJURY
MEDIAL MALLEOLUS)CLINICAL FEATURES
Admitted as a case of pain and deformity (R) ankle, patient
was clinically and radiologically diagnosed as bimalleolar
#(TYPE 2 EPIPHYSEAL INJURY LATERAL MALLEOLUS,
TYPE 1 EPIPHYSEAL INJURY MEDIAL MALLEOLUS),
patient was managed operatively with 1/3rd tubular plate
for fibula and k wire fixation for medial malleolus, post op
uneventful. W/I: clean. edema decreased, hence discharged.TREATMENT GIVEN AND COURSE IN HOSPITAL
1/3rd tubular plate for fibula and k wire fixation for medial
malleolus”
The Apex Court in Raj Kumar v. Ajay Kumar, (2011)1 SCC
343 followed in Anthony Swami v. M.D., KSRTC, (2020)7
SCC 161 held that the heads under which compensation is
awarded in personal injury cases are the following:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization,
medicines, transportation, nourishing food, and miscellaneous
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expenditure.
(ii) Loss of earnings (and other gains) which the injured
would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment.
(b) Loss of future earnings on account of permanent
disability.
(iii) Future medical expenses.
Non – pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and / or loss of prospects of
marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).
In routine personal injury cases, compensation will be
awarded only under heads (i), (ii)(a) and (iv). It is only in serious
cases of injury, where there is specific medical evidence
corroborating the evidence of the claimant, that compensation
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will be granted under any of the heads (ii)(b), (iii), (v) and (vi)
relating to loss of future earnings on account of permanent
disability, future medical expenses, loss of amenities (and / or
loss of prospects of marriage) and loss of expectation of life. It
was further held that where the claimant suffers a permanent
disability as a result of injuries, the assessment of compensation
under the head of loss of future earnings, would depend upon the
effect and impact of such permanent disability on his earning
capacity. The Tribunal should not mechanically apply the
percentage of permanent disability as the percentage of economic
loss or loss of earning capacity. What requires to be assessed by
the Tribunal is the effect of the permanently disability on the
earning capacity of the injured; and after assessing the loss of
earning capacity in terms of a percentage of the income, it has to
be quantified in terms of money, to arrive at the future loss of
earnings (by applying the standard multiplier method used to
determine loss of dependency). However in some cases, on
appreciation of evidence and assessment, the Tribunal may find
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that percentage of loss of earning capacity as a result of the
permanent disability, is approximately the same as the percentage
of permanent disability in which case, of course, the Tribunal
will adopt the said percentage for determination of compensation
(see for example, the decisions in Arvind Kumar Mishra v.
New India Assurance Co.Ltd., 2010 (10) SCALE 298 and
Yadava Kumar v. D.M., National Insurance Co. Ltd., 2010
(8) SCALE 567).
12. In the light of the aforesaid dictum, the
argument that when permanent disability is assessed as 13%,
functional disability ought to have been fixed at 26%, is
apparently incorrect.
13. In Master Mallikarjun (Supra) it has been
held by the Apex court that compensation is to be worked out
under the non-pecuniary heads in addition to the actual amounts
incurred for treatment done and / or to be done, transportation,
assistance of attendant, etc. The main elements of damage in the
case of child victims are pain, shock, frustration, deprivation of
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ordinary pleasures and enjoyment associated with healthy and
mobile limbs. The compensation awarded should enable the
child to acquire something or to develop a lifestyle which would
offset to some extent the inconvenience or discomfort arising out
of the disability. Appropriate compensation for disability should
take care of all the non-pecuniary damages. In other words, apart
from this head, there shall only be the claim for the actual
expenditure for treatment, attendant, transportation, etc. It has
been further held that it is difficult to have an accurate
assessment of the compensation in the case of children suffering
disability on account of a motor vehicle accident and that the
appropriate compensation on all other heads in addition to the
actual expenditure for treatment, attendant etc. should be as
follows – ₹1 lakh if permanent disability is upto 10%, unless
there are exceptional circumstances to take a different yardstick ;
₹3 lakhs if the disability is above 10% and upto 30% , ₹4 lakhs if
the disability is upto 60% ; ₹5 lakhs if the disability is upto 90%
and ₹6 lakhs if the disability is above 90%. In the said case, the
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disability was to the tune of 18%. The claimant therein was
hospitalised for a period of two months causing inconvenience
and loss of earnings to the parents and hence an amount of
₹3,75,000/- along with 6% interest was granted to the claimant.
13.1. In Kajal (Supra) a young girl suffered serious
injuries resulting in damage to her brain. According to the
medical report produced, due to the head injury sustained she
was left with a very low IQ and severe weakness in all her four
limbs. She had severe hysteria and urinary incontinence. Her
disability was assessed as 100%. One of the members of the
Medical Board who had issued the disability certificate deposed
before the Tribunal that as per the assessment done, her I.Q. was
less than 20% of a child of her age and her social age was only of
a 9 month old child. This meant that Kajal while lying on the bed
would grow up to be an adult with all the physical and biological
attributes which a woman would get on attaining adulthood,
including menstruation etc., but her mind would remain of a 9
month old child and she would never understand what was
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happening all around her. Hence, in such circumstances, it was
held that it was a case where departure had to be made from the
normal rule as the pain and suffering suffered by the child was
such that no amount of compensation would be able to
compensate it.
13.2. In Master Ayush (Supra) the victim was a 5
year old child who was rendered paraplegic due to the accident
after having suffered grievous injuries. He was unable to move
both his legs and had complete sensory loss in both legs, urinary
incontinence, bowel constipation and bed sores. He had lost his
childhood and was dependent on others for his routine work.
Hence compensation was accordingly granted.
13.3. In Mujeeb Rahman A.P. (Supra) a learned
Single Judge of this Court was dealing with the case of death of a
minor child. In the said case the argument advanced by the
insurer that the principle laid down by the Apex Court in Kajal
and Master Ayush could not be applied since those cases were
concerning the determination of disability compensation payable
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to a minor child on account of 100% permanent disability and
were lying in a vegetative state, was rejected. It was held that as
the claim arises on account of the death of a minor, the Court
cannot remain oblivious of the fact that non application of the
principle as laid down in Kajal and Master Ayush would lead to
a clear disparity and would create two classes of claimants. In
one class, the victim would be lying in a paraplegic stage and in
the other, the claimants would be imbedded in profound grief
over the death of their child but cannot claim parity in
compensation. In cases of permanent disability, when it is
permissible for the Tribunal and courts to apply the multiplier
system even if the claimant is a minor, to hold that the multiplier
system cannot apply while considering the claim for
compensation on account of death of a minor defies logic and
does not find support of law. In the light of the dictum in Angad
Tiwari v. National Insurance Company Ltd., 2024 KHC
8590, the learned Single Judge concluded that in a case of death
of a minor child, the application of the table formulated in
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National Insurance Company v. K.K.Assainar, 2019 (4) KLT
39 cannot be applied in view of the decision in Kajal (Supra);
Master Ayush (Supra) and Angad Tiwari (Supra). Therefore, it
was held that while calculating the notional income of the
deceased minor child in a claim under Section 166 of the Act, the
notification issued by the State of Kerala in terms of the
provisions contained in the Minimum Wages Act in respect of a
skilled worker has to be applied. The Tribunals throughout the
State have been directed to apply the multiplier system by fixing
the multiplicand in accordance with the notification issued under
the Minimum Wages Act, 1948 while considering a claim
petition under Section 166 of the Act on account of death of a
minor child.
14. Apparently, the facts of the aforesaid cases
relied on by the learned counsel for the claim petitioner cannot be
applied to the facts of the case on hand in the light of the injuries
sustained by the claim petitioner herein. As held in Master
Mallikarjun (Supra) if the disability is above 10% and upto 30%
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of the whole body, the amount of compensation to be awarded is
₹3,00,000/-. As per Ext.A9 the whole body disability caused is
13% and, therefore, the claim petitioner will be entitled to an
amount of ₹3,00,000/- as compensation under this head.
15. The impugned Award is modified to the
following extent :
Sl. Head of Amount Amount Modified in
No. claim claimed Awarded appeal
by Tribunal
1 Loss of -- -- --
earning (No
modification)
2 Transportation ₹10,000/- ₹2,000/- ₹2,000/-
expenses (No
modification)
3 Extra ₹5,000/- ₹5,500/- ₹5,500/-
nourishment (No
modification)
4 Damage to ₹10,000/- ₹500/- ₹500/-
clothing (No
modification)
5 Medical ₹50,000/- ₹3,000/- ₹3,000/-
expenses (No
modification)
6 Bystander's ₹5,000/- -- --
expenses (No
modification)
7 Pain and ₹50,000/- -- --
sufferings (No
modification)
8 Loss of ₹1,50,000/- -- --
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amenities (No
and modification)
enjoyment in
life
9 Permanent ₹30,000/- ₹1,00,000/- ₹3,00,000/-
disability
10 Discomfort, -- ₹20,000/- ₹20,000/-
inconvenience (No
and loss of modification)
earning to the
parents
Total ₹3,10,000/- ₹1,31,000/- ₹3,31,000/-
In the result, the appeal is allowed by enhancing the
compensation by a further amount of ₹2,00,000/- (total
compensation ₹3,31,000/-, that is, ₹1,31,000/- granted by the
Tribunal + ₹2,00,000/- 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 168 days delay in filing the appeal) and
proportionate costs. The third respondent/insurance company is
directed to deposit the compensation with interest and costs
before the Tribunal within a period of 60 days from the date of
receipt of a copy of the judgment. On deposit of the
compensation amount, the Tribunal shall disburse the amount to
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the claim petitioner at the earliest in accordance with law after
making deductions, if any.
Interlocutory applications, if any pending, shall stand
closed.
SD/-
C.S. SUDHA
JUDGE
ak
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