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2025 DIGILAW 2374 (KER)

Midhun Babu v. New India Assurance Company Ltd.

2025-09-08

C.S.SUDHA

body2025
JUDGMENT : C.S. Sudha, J. 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.345/2019 on the file of the Motor Accidents Claims Tribunal, N.Paravur (the Tribunal), aggrieved by the amount of compensation granted by Award dated 31/01/2020. 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 24/01/2019 at about 08:20 p.m., while he was riding motorcycle bearing registration no. KL-42-Q-2942 through Varapuzha-Edappilly road, scooter bearing registration no.KL-7/BJ-7985 ridden by the second respondent in a rash and negligent manner collided with his vehicle, as a result of which he sustained grievous injuries. An amount of ?8,00,000/- was claimed as compensation under various heads. 3. The first respondent/owner and the second respondent/rider remained ex parte. 4. The third respondent/insurer filed written statement admitting the policy but denying negligence on the part of the second respondent/rider of the offending vehicle. It was also contended that the amount claimed was exorbitant. 5. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A8 were marked on the side of the claim petitioner. No documentary evidence was produced 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 offending vehicle resulting in the incident and hence awarded an amount of ?3,59,000/- together with interest @ 9% per annum from the date of the petition till the date of 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 - Notional income It is submitted by the learned counsel for the claim petitioner that the latter a 24 year old software developer was earning ?25,000/- per month. However, the Tribunal fixed the notional income at ?12,000/- which is quite low. He also drew my attention to I.A. No.1/2025 filed for receiving additional documents. However, the Tribunal fixed the notional income at ?12,000/- which is quite low. He also drew my attention to I.A. No.1/2025 filed for receiving additional documents. The additional documents produced are an appointment letter issued by Bharathi Information Technologies Pvt. Ltd., as per which his monthly remuneration is ?32,000/-. The other document is a certificate dated 17/01/2019 issued by the Principal, Mar Gregorios Adbul Jaleel Arts and Science College to the effect that the claim petitioner had completed BCA course in the year 2016. On the other hand, it is submitted by the learned counsel for the third respondent/insurer that these documents cannot be accepted in evidence as they ought to have been produced before the Tribunal. The appointment letter cannot be marked without examining the person who issued the same. The second document, that is, the certificate dated 17/01/2019 only shows that the claim petitioner completed his BCA course and that he had not obtained degree from the college. Therefore, she submits that without examining the persons who had issued the certificates the said documents cannot be admitted or received in evidence to substantiate the case of the claim petitioner. 9.1. As pointed out by the learned counsel for the third respondent/insurer, the appointment letter ought to have been produced before the Tribunal and the same cannot be admitted in evidence without examining the person who issued the same. The second document that is produced only shows that the claim petitioner has completed his BCA course in the year 2016. The certificate dated 17/01/2019 is admitted in evidence and marked as Ext.A9. In the facts and circumstances of the case, I find that fixing the notional income at ?20,000/- would be just and reasonable. Loss of earnings 10. The materials on record show that the claim petitioner sustained the following injuries- “comminuted fracture of right tibia and fibula ; deformity with abrasion on right lower leg etc.” He was hospitalized for a period of 24 days. He also underwent a surgery. In the facts and circumstances of the case, in all probability, he might have been unable to work for a period of 6 months. Hence, he can be awarded an amount of ?20,000/-x6 months = ?1,20,000/-. Loss of amenities 11. An amount of ?1,00,000/- was claimed. The Tribunal granted an amount of ?21,000/-. He also underwent a surgery. In the facts and circumstances of the case, in all probability, he might have been unable to work for a period of 6 months. Hence, he can be awarded an amount of ?20,000/-x6 months = ?1,20,000/-. Loss of amenities 11. An amount of ?1,00,000/- was claimed. The Tribunal granted an amount of ?21,000/-. In the facts and circumstances of the case, an amount of ?45,000/- under this head would be just and reasonable. Percentage of disability 12. It is submitted by the learned counsel for the claim petitioner that based on Ext.A7, the Tribunal ought to have fixed the functional disability at 14.53%. However, the Tribunal without any justification scaled down the disability to 7% which was unjustified and hence, the same needs to be fixed as per Ext.A7. Per contra, it is submitted by the learned counsel for the third respondent/insurer that Ext.A7 has been issued by a private doctor and not by a Medical Board and that the doctor who issued the certificate was never examined. Therefore, the Tribunal was right in fixing the functional disability at 7% and which calls for no interference. 12.1. Ext.A7 disability certificate reads thus- “DISABILITY CERTIFICATE This is to certify that Mr.Midhun Babu, 25 s/o Babu, Valiyaparambil House, P.O. N Paravur . following alleged RTA on 24/1/19 attended, Aster MEDICITY, KOCHI on 24/1/19 and was admitted in Govt Medical College Kochi as I.P No 84835 on 25/1/19 for 1 Communited Fracture Right leg and managed by Interlocking Nailing and discharged on 18/2/19 Now clinical and radiological examination, he is having 1. Fracture Tibia Right united with15 deg anterolateral angulation and 1 cm overlapping with implants in situ and fracture fibula malunited with overlapping 2. Loss of Limitation of plantar flexion from 35 deg and dorsiflexion of right ankle from 15 deg each and inversion of 25 deg (N35) and eversion of right foot of 15 deg each due to parightial ankylosis of subtalar and ankle joints of right foot with pain on terminal degrees. 3.Weakness of plantar flexion, dorsiflexion, inversion, eversion of 20% each due to musculotendinous injuries at fracture site. 3.Weakness of plantar flexion, dorsiflexion, inversion, eversion of 20% each due to musculotendinous injuries at fracture site. 4.Shortening of 1 cm of right leg compartment and thin anesthetic adherent scar on right leg Functionally he is having difficulty to i) climb up and down, to walk on uneven grounds, to squat, to stand on right tiptoes, to run, jump, press, pedal or kick with right foot, to stand for long and walk long. He is assessed to have a permanent disability as per National Guidelines as A Right Lower Limb 1.Mobility:- Right Ankle and Foot :-ROM-3% Strength :- 3%=5.9% 2.Stability = 36 Total = 36+(5.9x54/90)= 36+3.543 =39.54% 3.Extras-Shortening =2% Total for Right lower limb = 41.54 Total for whole body in ration to Right lower limb 41.54x35 =14.53% Total whole body disability =14.53% He is assessed to have a permanent disability for whole body as per National Guideline as 14.53% (Fourteen point fifty three percentage) only Going by the allegations in the claim petition, the claim petitioner is a software developer and therefore, the job seems to be a desk job. In the light of the nature of the employment, the functional disability fixed as 7% in the light of Ext.A7 seems to be quite fair and reasonable and hence, the same does not call for any interference. 13. The impugned Award is modified to the following extent : Sl. In the light of the nature of the employment, the functional disability fixed as 7% in the light of Ext.A7 seems to be quite fair and reasonable and hence, the same does not call for any interference. 13. The impugned Award is modified to the following extent : Sl. No. Head of claim Amount claimed Amount Awarded by Tribunal Modified in appeal 1 Loss of earnings ?1,00,000/- ?36,000/- ?1,20,000/- (?20,000/-x6 months) 2 Transportation expenses ?10,000/- ?6,000/- ?6,000/- (No modification) 3 Bystander expenses ?35,000/- ?12,000/- ?12,000/- (No modification) 4 Damage to clothing and articles ?5,000/- ?2,000/- ?2,000/- (No modification) 5 Medical expenses ?2,00,000/- ?4,500/- ?4,500/- (No modification) 6 Extra nourishment ?10,000/- ?6,000/- ?6,000/- (No modification) 7 Pain and sufferings ?2,50,000/- ?90,000/- ?90,000/- (No modification) 8 Loss of amenities ?1,00,000/- ?21,000/- ?45,000/- 9 Compensation for disability ?5,00,000/- ?1,81,440/- ?3,02,400/- (?20,000/- x12x18x7/100) 10 Partial loss of earnings ?30,000/- -- -- (No modification) 11 Loss of earning power ?1,50,000/- -- -- (No modification) Total ?13,90,000/- (Limited to 8,00,000/-) ?3,58,940/- rounded to ?3,59,000/- ?5,87,900/- In the result, the appeal is allowed by enhancing the compensation by a further amount of ?2,28,900/- (total compensation = ?5,87,900/-, that is, ?3,59,000/- granted by the Tribunal + ?2,28,900/- granted in appeal) with interest at the rate of 8% per annum from the date of petition till date of realization and proportionate costs. The third respondent/insurer 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 the claim petitioner at the earliest in accordance with law after making deductions, if any. Interlocutory applications, if any pending, shall stand closed.