Kerala High Court
The New India Assurance Co.Ltd vs Mini.P on 4 August, 2025
2025:KER:57786
MACA Nos.1269 & 1817 of 2013
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 4TH DAY OF AUGUST 2025 / 13TH SRAVANA, 1947
MACA NO. 1269 OF 2013
OPMV NO.524 OF 2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR
APPELLANT/S:
1 MINI P., W/O.LATE SATHEESAN, NANDILATHPARAMBIL HOUSE,
POONTHOLE P.O., THRISSUR DISTRICT.
2 NISHANTH, AGED 23 YEARS
S/O.LATE SATHEESAN, -DO-, -DO-.
3 MINOR ANJANA DEVI, S/O.LATE SATHEESAN, -DO-, -DO-
REPRESENTED BY 1ST APPELLANT MINI P.
BY ADV SRI.P.V.CHANDRA MOHAN
RESPONDENT/S:
1 SHERIYAR, S/O.MUHAMMED IQUBAL, MANNARAMBATH HOUSE,
CHERUVANNUR, NALLADAM, KOZHIKODE DISTRICT-673524.
2 NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE, SHEFEER
COMPLEX, 6/975, KANNUR ROAD, CALICUT-673001.
BY ADV SHRI.RAJAN P.KALIYATH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 03.07.2025, ALONG WITH MACA.1817/2013, THE COURT ON 04.08.2025
DELIVERED THE FOLLOWING:
2025:KER:57786
MACA Nos.1269 & 1817 of 2013
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 4TH DAY OF AUGUST 2025 / 13TH SRAVANA, 1947
MACA NO. 1817 OF 2013
OPMV NO.524 OF 2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR
APPELLANT/S:
THE NEW INDIA ASSURANCE CO.LTD
BRANCH OFFICE, SHEFER COMPLED, 6/975, KANNUR ROAD,
CALICUT, REP. BY THE DEPUTY MANAGER, REGIONAL OFFICE,
KOCHI.
BY ADV SHRI.RAJAN P.KALIYATH
RESPONDENT/S:
1 MINI.P., AGED 48 YEARS
W/O.LATE SATHEESAN, NANDILATHPARAMBIL HOUSE, POOTHOLE
POST, THRISSUR-4.
2 MINOR NISHANTH
S/O.LATE SATHEESAN, -DO-
3 ANJANA DEVI, AGED 15 YEARS
D/O.LATE SATHEESAN, -DO-, (THIRD PETITIONER MINOR REP.
BY THE FIRST RESPONDENT, MOTHER AND NATURAL GUARDIAN
MINI.P. -DO-
BY ADVS.
SRI.P.V.CHANDRA MOHAN
SMT.M.R.ELSIE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 03.07.2025, ALONG WITH MACA.1269/2013, THE COURT ON 04.08.2025
DELIVERED THE FOLLOWING:
2025:KER:57786
MACA Nos.1269 & 1817 of 2013
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JUDGMENT
These appeals arose from the impugned award dated 05.03.2013 in OP(MV) No. 524 of 2005 on the file of the Motor Accidents Claims Tribunal, Thrissur. MACA No.1269 of 2013 is filed by the claimants and MACA No. 1817 of 2013 by the insurer, challenging the finding of contributory negligence as well as the quantum of compensation awarded by the tribunal.
2. Since the parties and the cause of action are the same, the appeals are heard together and are being disposed of by this judgment. For brevity, the parties are referred to as they are arrayed before the tribunal.
3. The case of the claimants is that on 23.05.2004, while the original claimant/deceased was riding a motorcycle bearing Reg.No.KL-8/X 6706 through the Swaraj Road from north to south, a car bearing Reg.No.KL-7/X 1230 driven by the first respondent in a rash and negligent manner, hit the motorcycle, whereby he sustained grievous injuries. The original claimant approached the tribunal claiming a total compensation of ₹44,47,000/-. During the pendency of 2025:KER:57786 MACA Nos.1269 & 1817 of 2013 ..4..
the claim petition, the original claimant, who was quadriplegic following the accident, died on 06.05.2010, i.e., after 6 years of the accident and his legal heirs were impleaded as claimants 2 to 4.
4. The first respondent, the owner-cum-driver of the offending vehicle, remained ex parte before the tribunal. The second respondent insurer filed written statements, admitting the policy coverage for the offending vehicle, but disputing the liability and quantum of compensation claimed. Before the tribunal, PW1 to PW5 were examined and Exts.A1 to A25 & Exts.X1 to X4 were marked on the side of the claimants, and Ext.B1 on the side of the respondent insurer. The tribunal, after analysing the pleadings and materials on record, held that the accident took place on account of the negligence of the deceased/rider of the motorcycle and the first respondent/driver of the car in the ratio of 25:75; and accordingly, though assessed a compensation of ₹20,05,855/- under different heads, awarded only ₹15,04,500/- to the claimants, being 75% of the total compensation, with interest @ 8% per annum from the date of petition till realization, against the second respondent insurer.
5. Though the claim petition was originally filed claiming compensation for the injuries sustained, later, on the death of the 2025:KER:57786 MACA Nos.1269 & 1817 of 2013 ..5..
injured, the legal heirs were impleaded and the claim was treated as a death case. Challenging the finding of contributory negligence and the quantum of compensation awarded, the claimants as well as the insurer have come up in appeal.
6. I have heard the learned counsel for the claimants and the learned Standing Counsel for the insurer.
7. The learned Standing Counsel for the insurer submitted that it has come out in evidence of PW1, who was the original claimant/deceased, that he had consumed alcohol before riding the motorcycle and that he was not licensed to ride two-wheelers. The learned Standing Counsel further submitted that the accident took place on his wrong side and the deceased alone is responsible for causing the accident.
8. The learned counsel for the claimants, on the other hand, submitted that the accident occurred at the Swaraj Round near the General Hospital while the deceased was riding the motorcycle from north to south; and the car, which came from the opposite direction violating the one way traffic rules, hit the motorcycle. Hence, according to the learned counsel for the claimants, it cannot be said that the deceased was on his wrong side since the car entered the Swaraj Round 2025:KER:57786 MACA Nos.1269 & 1817 of 2013 ..6..
violating the one way traffic rules.
9. The tribunal, finding that the contention regarding one way traffic was not proved by either side, held that since the accident was in the middle of the road, the deceased also contributed to the accident and accordingly, attributed 25% contributory negligence on his part. On a perusal of the materials on board, the deceased/original claimant while examined as PW1, deposed that the Swaraj Round follows the one way traffic system and the car entered the Swaraj Round violating one way traffic rules, resulting in the accident. When a question was put forth regarding consumption of alcohol, he answered that he had consumed alcohol in the afternoon. It is also seen from records that a petty case was also charged against the deceased for consuming alcohol. It was the specific case of the insurer that during night hours, there was relaxation of one way traffic rules and since the accident occurred at 10 pm, it cannot be found fault with the first respondent/driver of the car for coming from the opposite direction through the Swaraj Round.
10. When the case came up for hearing on 12.06.2025, this Court directed the learned Government Pleader to get instructions whether the traffic on 23.05.2004 around the Swaraj Round was one 2025:KER:57786 MACA Nos.1269 & 1817 of 2013 ..7..
way or not, and also whether there was any relaxation for one way traffic during night after 9 pm. Pursuant to the direction, the learned Government Pleader filed a report of the Assistant Commissioner of Police, Thrissur Sub Division, along with a memo dated 17.06.2025, which reads as follows:
"It is reported that the Swaraj Round is customarily used as one way since a long time ago in order to smooth and regulate vehicular traffic. It is known that in the past, during odd hours at night, people used to travel both the sides. There was no restriction imposed by police upon this. But as the vehicular traffic is augmented as time passed, Swaraj Round road is now used as one way almost all the time. But no order regarding these regulations is available. So, the Thrissur Municipal Corporation authorities has been requested for the above said details if any. But no reply was received from them."
11. It is reported by the Assistant Commissioner of Police, Thrissur Sub Division, that during night hours, people used to travel to both sides and there was no restriction imposed by the police upon this. It is also to be noted that the deceased was a resident of Thrissur. If he was a non-resident of Thrissur district, he might not have known whether there was any relaxation to the one way traffic. Here, being a resident of Thrissur, he would certainly be aware of the relaxation of the one way traffic system during night hours. It is further stated in the report that presently, the Swaraj Round road is being used as one way almost all the time. The accident occurred in the middle of the road. The 2025:KER:57786 MACA Nos.1269 & 1817 of 2013 ..8..
charge sheet was drawn against the driver of the car. If both the driver of the car as well as the rider of the motorcycle was cautious enough, the accident could have been avoided. The finding of the tribunal attributing 25% negligence on the part of the deceased/rider of the motorcycle and 75% on the driver of the car are on valid reasons. Hence, I do not find any reason to interfere with the ratio of negligence fixed by the tribunal.
12. The learned counsel for the claimants and insurer challenged the compensation awarded under the following heads:
12.1. Notional income - The learned counsel for the claimants submitted that the tribunal has fixed the monthly income of the deceased at ₹8,000/- including future prospects as well, which is unsustainable. As per Ext.A4 salary certificate, the gross salary of the deceased was ₹16,759/-, which included Basic Pay, DA, HRA, etc., and the total deduction is shown as ₹3,375/-. Since no other documents are produced to prove his actual income after deduction of income tax, in order to award a just and reasonable compensation, I deem it appropriate to refix the income of the deceased at ₹15,000/- per month.
12.2. Funeral expenses - The learned counsel for the claimants submitted that the tribunal awarded only an amount of 2025:KER:57786 MACA Nos.1269 & 1817 of 2013 ..9..
₹5,000/- towards funeral expenses. However, going by the judgment in National Insurance Co. Ltd. v. Pranay Sethi [2017(4) KLT 662(SC)], the compensation under conventional heads ought to have been ₹15,000/- and further, 10% enhancement has to be given in a span of three years from 2017. Thus, following the judgment in Pranay Sethi (supra), I deem it appropriate to award to the claimants a total compensation of ₹18,150/- towards funeral expenses. Hence, the claimants will be entitled to get an additional compensation of ₹13,150/- under this head.
12.3. Loss of estate - It is seen that the tribunal has awarded only an amount of ₹5,000/- towards loss of estate. Following the judgment in Pranay Sethi (supra), the compensation under conventional heads ought to have been ₹15,000/- and further, 10% enhancement has to be given in a span of three years from 2017. Thus, following the judgment in Pranay Sethi (supra), I deem it appropriate to award to the claimants a total compensation of ₹18,150/- towards loss of estate. Hence, the claimants will be entitled to get an additional compensation of ₹13,150/- under this head.
12.4. Permanent disability - The learned Standing Counsel for the insurer submitted that the tribunal awarded ₹5,76,000/- and ₹8,32,000/- as compensation towards permanent disability as well as 2025:KER:57786 MACA Nos.1269 & 1817 of 2013 ..10..
loss of dependency respectively, considering the case as both injury case as well as death case, which is not legally sustainable. The deceased was 100% disabled due to the injuries sustained in the accident. The accident was on 23.05.2004 and the death occurred on 06.05.2010, i.e., almost after six years of the accident. Once the claim is considered as a death case, no compensation shall be payable towards permanent disability since the multiplier adopted for awarding compensation for loss of dependency, is on the basis of the age at the time of accident. Moreover, the victim is no longer alive to suffer disability; and compensation is given to the dependents for loss of support. The period, during which the injured was bedridden or was disabled before death, gets merged with the age as on the date of accident. Under such circumstances, if compensation is awarded under both the heads, permanent disability and loss of dependency, there will be duplication of compensation. The tribunal, however, considering the period during which he was bedridden, adopted '6' as the multiplier for awarding compensation under permanent disability, and also, considering the age as on the date of death of the deceased, adopted '13' as the multiplier for awarding compensation under loss of dependency, which is also improper as held by the apex court in Puttamma and Others v. K.L.Narayana Reddy and Another [2013 (15) 2025:KER:57786 MACA Nos.1269 & 1817 of 2013 ..11..
SCC 45] that in the absence of any specific reason and evidence on record, the tribunal or the court should not apply split multiplier in routine course and should apply multiplier as per the judgment in Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802(SC)], which is affirmed in Reshma Kumari & others v. Madan Mohan & another [2013 KHC 4253]. In the present case, since the claim is treated as a case of death, for the reasons stated above, I am of the opinion that the claimants are not entitled to get compensation towards permanent disability. Accordingly, the compensation of ₹5,76,000/- awarded towards permanent disability is deleted.
12.5. Loss of dependency - The deceased was 42 years old at the time of accident. Hence, the multiplier to be adopted is '14'. Since the monthly income of the deceased is refixed at ₹15,000/-, compensation towards loss of dependency has to be recalculated. The deceased was a permanent employee and was aged 42 years at the time of the accident. Thus, after adding 30% future prospects to the refixed income, the amount would be arrived at ₹19,500/- (15000 + 4500). Accordingly, following the judgments in Pranay Sethi (supra) and Sarla Verma (supra), the claimants will be entitled to get a total compensation of ₹21,84,000/- (19500 x 12 x 14 x 2/3) towards loss of dependency. Hence, there will be an additional amount of ₹13,52,000/- under this 2025:KER:57786 MACA Nos.1269 & 1817 of 2013 ..12..
head.
12.6. Pain and suffering - The learned counsel for the claimants submitted that though a compensation of ₹1,50,000/- was claimed towards pain and suffering, the tribunal awarded only ₹20,000/-. It is true that the injured was completely bedridden for six years. However, the claim is treated as a death case. Considering the sufferings undergone by the injured, I find it just and reasonable to award an amount of ₹50,000/- towards pain and suffering.
12.7. Loss of consortium/loss of love and affection - The learned counsel for the claimants submitted that the tribunal has not awarded any amount towards loss of consortium, whereas, the claimants 2 to 4 are entitled to get a compensation of ₹40,000/- each, totalling to ₹1,20,000/-. It is further submitted that following the judgment in Pranay Sethi (supra), they are also entitled to get 10% enhancement in a span of three years from 2017. Accordingly, the claimants are awarded a compensation of ₹48,400/- each towards loss of consortium, totalling to ₹1,45,200/- (48400 x 3).
12.7.1. The learned Standing Counsel for the insurer submitted that the tribunal awarded ₹20,000/- towards loss of love and affection, which is impermissible and runs against the mandate in 2025:KER:57786 MACA Nos.1269 & 1817 of 2013 ..13..
Pranay Sethi (supra). I find force in the submission of the learned Standing Counsel. Once compensation is awarded under the head loss of consortium, no amount shall be awarded towards loss of love and affection as it amounts to duplication of compensation as held in New India Assurance Company Ltd. v. Somwati and others [2020 (5) KLT OnLine 1198 (SC)]. Therefore, the compensation of ₹20,000/- awarded by the tribunal towards loss of love and affection is deleted.
12.8. Loss of earnings, Bystander expenses, Personal attendants, Loss of amenities & Loss of expectancy of life - The claimants have claimed enhancement of compensation under the heads; loss of earnings, bystander expenses and personal attendants. Originally, the claim petition was filed by the injured and later, on the death of the injured, the legal heirs were impleaded in the petition as additional claimants 2 to 4 and the claim was shifted to one under death from injury. As per the judgments in Sarla Verma (supra), Reshma Kumari (supra) and Pranay Sethi (supra), the compensation payable in death cases are under the heads; medical expenses, funeral expenses, transportation expenses, damages to clothing, loss of dependency, loss of estate, loss of consortium etc. Therefore, the compensation of ₹28,000/-, ₹1,45,800/-, ₹1,00,000/-, ₹20,000/- and ₹20,000/- awarded by the tribunal towards loss of earnings, bystander expenses, personal 2025:KER:57786 MACA Nos.1269 & 1817 of 2013 ..14..
attendants, loss of amenities and loss of expectancy of life respectively are hereby deleted.
12.9. However, in the present case, though the date of the accident was on 23.05.2004, the date of death was only on 06.04.2010, i.e., almost six years after the accident. Hence, in order to award a just and reasonable compensation, though the claimants have opted to convert the injury case to a death case, I find it appropriate to award a consolidated amount of ₹2,50,000/-. It is made clear that the above compensation is awarded specifically based on the facts of this case and it shall not be cited as a precedent.
13. Though the claimants and the insurer challenged the compensation awarded by the tribunal under other heads as well, on a perusal of the records available and the impugned award, I am not inclined to interfere with the same since it appears to be just and reasonable.
14. Since the appeal is of the year 2013, I fix the interest on the enhanced compensation @ 7% per annum from the date of the claim petition till realization. Thus, the impugned award of the tribunal is modified as follows:
2025:KER:57786 MACA Nos.1269 & 1817 of 2013 ..15..
Sl.
No. Head of Claim Amount Amount Modified Total
claimed awarded in appeal compensation
(in ₹) by the (in ₹) (in ₹)
tribunal
(in ₹)
1. Loss of earnings 864000 28000 -28000 deleted
2. Medical expenses 500000 209055 - 209055
3. Funeral expenses 7500 5000 13150 18150
4. Bystander 220000 145800 -145800 deleted
expenses
5. Personal 15000 100000 -100000 deleted
attendants
6. Transportation 15000 15000 - 15000
expenses
7. Extra 20000
nourishment
8. Damages to 500 10000 - 10000
clothing
9. Pain and suffering 150000 20000 30000 50000
10. Disability 576000 -576000 deleted
11. Loss of 2400000 832000 1352000 2184000
dependency
12. Loss of estate 25000 5000 13150 18150
13. Loss of love and 25000 20000 -20000 deleted
affection
14. Loss of amenities 100000 20000 -20000 deleted
15. Loss of 20000 20000 -20000 deleted
expectancy of life
16. Loss of 20000 - 145200 145200
consortium
17. Consolidated - - 250000 250000
head
Total 4447000 2005855 893700 2899555
1504500 670275
(75%) (75%)
Accordingly, the appeals are allowed in part. The claimants are awarded an additional compensation of ₹6,70,275/- (Rupees six lakh 2025:KER:57786 MACA Nos.1269 & 1817 of 2013 ..16..
seventy thousand two hundred and seventy five only), being 75% of ₹8,93,700/-, over and above the compensation awarded by the tribunal with interest @ 7% per annum from the date of petition till realization and proportionate costs. The insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimants shall furnish copies of the PAN Card, AADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the claimants at the earliest in accordance with law.
Sd/-
SHOBA ANNAMMA EAPEN JUDGE bka/-