JUDGMENT : C.S. SUDHA, J. 1. 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.230/2017 on the file of the Motor Accidents Claims Tribunal, Palakkad (the Tribunal), aggrieved by the amount of compensation granted by Award dated 14/11/2019. 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 18/09/2016 at about 03:05 p.m., while she was walking along the side of Palakkad-Thrissur national highway, tempo van bearing registration no.AP03-TD-3357 driven by the second respondent knocked her down, as a result of which she 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 averments in the petition regarding age, occupation and monthly income of the claim petitioner were disputed. 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 A16 were marked on the side of the claim petitioner. Exts.B1 to B4 were 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 vehile resulting in the incident and hence awarded an amount of ?1,34,800/- together with interest @ 7.5% per annum from the date of the petition till realisation along with 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- Before the appeal is considered on merits, I refer to the argument advanced by the learned counsel for the third respondent/insurer, who drew my attention to paragraph 16 of the impugned award. 8. Heard both sides. 9. The award of compensation by the Tribunal under the following heads is challenged by the claim petitioner- Before the appeal is considered on merits, I refer to the argument advanced by the learned counsel for the third respondent/insurer, who drew my attention to paragraph 16 of the impugned award. In the said paragraph, the Tribunal refers to the contention that has been taken up by the third respondent/insurer that the driver of the offending vehicle, namely, the second respondent, did not have a valid driving license at the time of the accident and that the vehicle did not have a valid permit. The Tribunal rejected this contention on the ground that the same had not been proved by the third respondent/insurer. It is submitted by the learned counsel for the third respondent/insurer that, in the light of the contention taken up in the written statement that there was no valid driving licence or a valid permit for the offending vehicle, the burden of proof was on the claim petitioner to disprove the said contention and establish that there was necessary license and permit. As they have failed to discharge the burden, it has to be found that there has been a fundamental breach, which would entitle the insurer to be exonerated of the liability. On the other hand, it is submitted by the learned counsel for the claim petitioner that the burden is on the third respondent/insurer to prove the violations and even if there is any violation, the insurer can be given the liberty to recover the amount from the first and the second respondents. 9.1. When the insurer takes up a plea of violation of the policy condition(s), it is well settled that the burden is on the insurer to prove the violation. However, no steps are seen taken by the insurer to discharge this burden. It is true that it is a negative fact that needs to be proved by the insurer. This Court in judgment dated 26.08.2025 in MACA No. 767/2020 ( New India Assurance Co. Ltd. v. Ramakrishnan ) had the occasion to consider a similar issue. However, no steps are seen taken by the insurer to discharge this burden. It is true that it is a negative fact that needs to be proved by the insurer. This Court in judgment dated 26.08.2025 in MACA No. 767/2020 ( New India Assurance Co. Ltd. v. Ramakrishnan ) had the occasion to consider a similar issue. As held by the Apex Court in National Insurance Company Ltd. v. Swaran Singh, 2004 (1) KLT 781 (SC) the degree of proof which would satisfy the requirement of the insurer discharging their burden would depend on the facts and circumstances of each case. No hard and fast rule can therefore be laid down. If in a given case there exists sufficient material to draw an adverse inference against either the insurer or the insured, the Tribunal can do so. The party alleging breach must be held to have succeeded in establishing the breach of condition of contract of insurance on the part of the insured by discharging its burden of proof. Hence a finding will have to be arrived at on the basis of materials available on record. In the case on hand, apart from raising a contention in the written statement that there has been violation of the policy conditions as the second respondent had no valid driving licence and that the vehicle did not have a valid permit, no attempt is made to establish the same. The insurer could have filed an application requesting the Tribunal to direct the driver or owner to produce the document and in the event of their failure, an adverse inference could have been drawn. However, no such step is seen taken. Hence the insurer has not discharged their burden of proving violation. Moreover, no appeal or cross objection has been filed by the third respondent- insurer and hence the argument at this stage that there has been violation of the policy condition(s) and that the insurer is liable to be exonerated cannot be accepted. Notional income 10. It is submitted by the learned counsel for the claim petitioner that the latter, a coolie aged 66 years was earning ?14,000/- per month. However, the Tribunal fixed the notional income at ?7,000/-, which is quite low going by the dictum in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. (2011) 13 SCC 236 . 10.1. Notional income 10. It is submitted by the learned counsel for the claim petitioner that the latter, a coolie aged 66 years was earning ?14,000/- per month. However, the Tribunal fixed the notional income at ?7,000/-, which is quite low going by the dictum in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. (2011) 13 SCC 236 . 10.1. In the light of the dictum in Ramachandrappa (Supra) , the notional income of the claim petitioner is fixed as ? 10,500 /- per month. Pain and sufferings 11. The materials on record show that the claim petitioner sustained the following injuries: “1) Open fracture both bones of right leg distal 1/3 rd 2) Open fracture 1st and 5th metatarsal head left foot. 3) Fracture P2 left big toe. 4) Degloving injury left foot. 5) Pain all over the body.” She was hospitalized for a period of 38 days. An amount of ? 50,000 /- under this head would be just and reasonable. Expenses for bystander 12. The materials on record show that she was hospitalized for a period of 38 days. The accident occurred on 18/09/2016. Hence, I find that she can be awarded compensation at the rate of ?450/- per day for a period of 38 days, that is ? 17,100 /-. Loss of earnings 13. In the light of the injuries sustained, in all probability she might have been unable to work for a period of 8 months. Therefore, an amount of ? 84,000 /- can be granted under the head loss of earnings, that is, ?10,500/- x 8 months. Compensation for loss of amenities and enjoyment in life 14. In the facts and circumstances of the case, ? 35,000 /- would be just and reasonable under this head. The percentage of disability 15. It is submitted by the learned counsel for the claim petitioner that as per Ext.A13 disability certificate, the disability has been assessed as 18%. However, the Tribunal was not justified in scaling down the percentage of disability to 14%. Therefore, he submits that it must be fixed at least according to the disability that is fixed in Ext.A13. The learned counsel for the third respondent-insurer submits that as the doctor who issued Ext.A13 was not examined, there is no infirmity committed by the Tribunal calling for an interference by this Court on this aspect. 15.1. Therefore, he submits that it must be fixed at least according to the disability that is fixed in Ext.A13. The learned counsel for the third respondent-insurer submits that as the doctor who issued Ext.A13 was not examined, there is no infirmity committed by the Tribunal calling for an interference by this Court on this aspect. 15.1. The fact that the claim petitioner is a manual labourer is not disputed. Ext.A13 disability certificate reads thus: “ DISABILITY CERTIFICATE This is to certify that I have examined smt.Chinna, 65yrs, F, w/oRaman, Karakkode(H), Alathur, Palakkad on 19.9.19 for assessment of permanent physical disability. I have verified the discharge certificate (dt.7.12.16), discharge summary and the fresh X-rays (No. dt.24.9.19) before issuing the certificate. She was a manual labourer by profession. The patient gives a h/o road traffic accident on 19.9.16 following which she was admitted at Govt. Medical college, Thrissur with type 3 open fracture both bones (R)leg, type2 open fracture 1 st and 5th metatarsal head(L), degloving injury (L)foot. She was treated conservatively alongwith other supportive measures and discharged on 26.10.16. On clinicoradiological examination the patient has the following findings: 1. Ugly scar, deformity, SSG scar over (L)foot, (L)big toe nail absent. 2. Deformity and bony angulation (R)lower leg. 3. Range of dorsiflexion of (R)ankle (5 0 ) grossly decreased than the normal (20°). 4. SSG scar over (L)thigh. 5. Difficulty and pain on squatting, climbing stairs, and sitting on the floor. 6. Radiologically, malunited(10°) (R)tibia&fibula L/3. The whole body permanent disability has been calculated using Mcbride scale as follows: % for type3 open fracture both bones (R)leg with 10° angulation with ugly deformity = 14% % for type2 open fracture 1 st and 5 th metatarsal head (L)foot with angulation = 5% Using the combination formula, combined disability = 18% Conclusion Smt.Chinna has got 18(eighteen)% of permanent physical disability (whole body) with respect to her injuries sustained in the accident. I have not treated this patient. I have got more than 18 yrs standing in orthopaedics.” (Emphasis supplied) It is true that the doctor who issued Ext.A13 was not examined. However, in the light of the dictum in Rajkumar v. Ajay Kumar, AIR OnLine 2010 SC 125 , it is the functional disability that needs to be assessed. Here the fact that she is a manual labourer is not seen disputed. However, in the light of the dictum in Rajkumar v. Ajay Kumar, AIR OnLine 2010 SC 125 , it is the functional disability that needs to be assessed. Here the fact that she is a manual labourer is not seen disputed. Therefore, taking into account the difficulties caused due to the disability sustained as stated in Ext.A13, I find that the functional disability can also be fixed as 18 %. 16. The impugned Award is modified to the following extent: S. No. Head of claim Amount claimed (in ?) Amount Awarded by Tribunal (in ?) Modified in appeal (in ?) 1. Loss of earning 1,50,000/- 42,000/- 84,000/- (10,500/- x 8) 2. Transportation to hospital 20,000/- 5,000/- 5,000/- (No modification) 3. Damage to clothing and articles 3,000/- 1,000/- 1,000/- (No modification) 4. Extra nourishment 25,000/- 5,000/- 5,000/- (No modification) 5. Expenses of a bystander 20,000/- 11,400/- 17,100/- 6. Treatment expenses 25,000/- 2,800/- 2,800/- (No modification) 7. Compensation for pain and suffering 1,00,000/- 30,000/- 50,000/- 8. Compensation for loss of future earning power 2,00,000/- 12,600/- 1,13,400/- (10,500/- x 12 x 5 x 18/100) 9. Compensation for loss of amenities and enjoyment in life 1,00,000/- 25,000/- 35,000/- Total 1,34,800/- 3,13,300/- In the result, the appeal is allowed by enhancing the compensation by a further amount of ? 1,78,500 /- (total compensation = ?3,13,300/- that is, ?1,34,800/- granted by the Tribunal + ?1,78,500/- 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 93 days delay in filing the appeal) and proportionate costs. The third 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. Interlocutory applications, if any pending, shall stand closed.