Kerala High Court
Kanakam K.K vs The Oriental Insuramce Co.Ltd on 21 July, 2025
2025:KER:53594
M.A.C.A.No.12 of 2020 and 1
Cross Objection No.40 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
MACA NO. 12 OF 2020
AGAINST THE AWARD DATED 05/04/2019 IN OP(MV) NO.511 OF
2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR
APPELLANT/3RD RESPONDENT:
THE ORIENTAL INSURANCE COMPANY LIMITED
BR.OFFICE, KODUNGALLUR, PIN-680 664, REPRESENTED
BY ITS REGIONAL MANAGER, REGIONAL OFFICE,
ERNAKULAM NORTH, KOCHI-18.
BY ADVS. SRI.GEORGE CHERIAN (SR.)
SMT.K.S.SANTHI, STANDING COUNSEL
SMT.ALEXY AUGUSTINE
RESPONDENTS/CLAIMANTS:
1 KANAKAM.K.K
AGED 83 YEARS
HOUSE WIFE, W/O LATE MURALEEHARAN, "MIDHILA",
THEKKOOT KALARIKKAL HOUSE, KANIMANGALAM P.O.
THRISSUR DT.-680027
2 BEENA GOPAL,
AGED 58 YEARS
ASST EXE.ENGINEER, W/O LATE RAGHUNATH T.M,
"MIDHILA", THEKKOOT KALARIKKAL HOUSE,
KANIMANGALAM P.O., THRISSUR DISTRICT.680027
3 MYDHILI.T.R
AGED 31 YEARS
EMPLOYED, B PHARM, D/O LATE RAGHUNATH T.M,
"MIDHILA", THEKKOOT KALARIKKAL HOUSE,
KANIMANGALAM P.O.THRISSUR DISTRICT.680027
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M.A.C.A.No.12 of 2020 and 2
Cross Objection No.40 of 2022
4 OORMILA T.R
AGED 28 YEARS
CIVIL ENGG.STUDENT, D/O LATE RAGHUNATH T.M,
"MIDHILA", THEKKOOT KALARIKKAL HOUSE,
KANIMANGALAM P.O.THRISSUR DISTRICT.680027
5 MURALEEKRISHNA T.R,
AGED 22 YEARS
STUDENT, S/O LATE RAGHUNATH T.M, "MIDHILA",
THEKKOOT KALARIKKAL HOUSE,
KANIMANGALAM P.O.THRISSUR DISTRICT.680027
6 MAHESHKRISHNA T.R,
AGED 22 YEARS
STUDENT, S/O LATE RAGHUNATH T.M, "MIDHILA",
THEKKOOT KALARIKKAL HOUSE,
KANIMANGALAM P.O.THRISSUR DISTRICT.680027
BY ADV SRI.P.V.CHANDRA MOHAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN COME UP
FOR FINAL HEARING ON 14.7.2025, THE COURT ON 21.07.2025,
ALONG WITH CO.40/2022, DELIVERED THE FOLLOWING:
2025:KER:53594
M.A.C.A.No.12 of 2020 and 3
Cross Objection No.40 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
CO NO. 40 OF 2022
ARISING FROM MACA NO.12 OF 2020
AGAINST THE AWARD DATED 05/04/2019 IN OP(MV) NO.511 OF
2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR
CROSS OBJECTORS/RESPONDENTS:
1 KANAKAM K.K.
AGED 84 YEARS
W/O.LATE MURALEEDHARAN, 'MIDHILA',
THEKKOTT KALARIKKAL HOUSE, KANIMANGALAM P.O.,
THRISSUR DISTRICT.
2 BEENA GOPAL
AGED 59 YEARS
ASST. EXE, ENGINEER, W/O.LATE REGHUNATH,
'MIDHILA', THEKKOOT KALARIKKAL HOUSE,
KANIMANGALAM P.O., THRISSUR DISTRICT.
3 MYDHILI T.R.
AGED 32 YEARS
EMPLOYED, B.PHARM, D/O.LATE REGHUNATH, 'MIDHILA',
THEKKOOT KALARIKKAL HOUSE, KANIMANGALAM P.O.,
THRISSUR DISTRICT.
4 OORMILA T.R.
AGED 29 YEARS
CIVIL ENGG. STUDENT, D/O.LATE REGHUNATH,
'MIDHILA', THEKKOOT KALARIKKAL HOUSE,
KANIMANGALAM P.O., THRISSUR DISTRICT.
5 MURALEEDKRISHNA T.R.
AGED 23 YEARS
STUDENT, S/O.LATE REGHUNATH, 'MIDHILA',
2025:KER:53594
M.A.C.A.No.12 of 2020 and 4
Cross Objection No.40 of 2022
THEKKOOT KALARIKKAL HOUSE, KANIMANGALAM P.O.,
THRISSUR DISTRICT.
6 MAHESHKRISHNA T.R.
AGED 23 YEARS
STUDENT, S/O.LATE REGHUNATH, 'MIDHILA',
THEKKOOT KALARIKKAL HOUSE, KANIMANGALAM P.O.,
THRISSUR DISTRICT.
BY ADV SRI.P.V.CHANDRA MOHAN
RESPONDENT/APPELLANT:
THE ORIENTAL INSURAMCE CO.LTD
BR. OFFICE, KODUNGALLUR, PIN - 680 664,
REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL
OFFICE, ERNAKULAM NORTH, KOCHI - 18.
BY ADV SMT.K.S.SANTHI, SC, ORIENTAL INSURANCE
COMPANY LTD.
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN COME UP
FOR FINAL HEARING ON 14.7.2025, THE COURT ON 21.07.2025,
ALONG WITH MACA.12/2020, DELIVERED THE FOLLOWING:
2025:KER:53594
M.A.C.A.No.12 of 2020 and 5
Cross Objection No.40 of 2022
C.S.SUDHA, J.
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M.A.C.A.No.12 of 2020 and Cross Objection No.40 of 2022
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Dated this the 21st day of July 2025
JUDGMENT
This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (the Act) by the third respondent/insurer in O.P. (MV) No.511/2011 on the file of the Motor Accidents Claims Tribunal, Thrissur, (the Tribunal), aggrieved by the Award dated 05/04/2019. The respondents herein are the claim petitioners, who have filed cross objection claiming enhancement. In this appeal and cross objection, the parties and the documents will be referred to as described in the original petition.
2. According to the claim petitioners, on 23/08/2010 at about 07:00 p.m. while deceased Raghunath was riding scooter bearing registration no.KL-8/G-610 through Thrissur-Irinjalakuda public road and when he reached the place by name Chevvoor, bus bearing registration no.KL-8/AC-1406 came through the wrong 2025:KER:53594 M.A.C.A.No.12 of 2020 and 6 Cross Objection No.40 of 2022 side of the road in a rash and negligent manner and knocked him down, as a result of which he sustained grievous injuries to which he succumbed. A sum of ₹43,28,000/- was claimed as compensation under various heads.
3. The first respondent/owner and second respondent/driver of the offending vehicle remained ex parte.
4. The third respondent/insurer filed written statement admitting the existence of a valid policy. The age, occupation and income of the deceased were disputed. It was contended that the compensation claimed was quite excessive.
5. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A14 were marked on the side of the claim petitioners. Ext.B1 was marked on the side of the respondents.
6. The Tribunal on consideration of the documentary evidence and after hearing both sides, found that the accident was due to the rash and negligent driving of the second respondent/driver and so awarded an amount of ₹55,84,950/-
2025:KER:53594 M.A.C.A.No.12 of 2020 and 7 Cross Objection No.40 of 2022 together with interest @ 8% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved by the quantum of compensation, the third respondent/insurer has come up in appeal.
7. The only point that arises for consideration in this appeal and cross objection 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 submitted by the learned senior counsel appearing for the third respondent/insurer that the Tribunal went wrong in fixing the income of the deceased as ₹47,000/- when going by their claim, his income was only ₹35,000/- per month. Moreover, Ext.A10 salary pay slip is of August 2010. The deceased died on 23/08/2010. He was on Leave Without Allowance (LWA) from 08/05/2009 to 07/05/2011. Hence, Ext.A10 could not have been relied on and so the Tribunal ought to have relied on Ext.A13 income tax returns and fixed the monthly income of the deceased.
2025:KER:53594 M.A.C.A.No.12 of 2020 and 8 Cross Objection No.40 of 2022 As the income has been wrongly fixed, interference into the same is required. In support of the argument, reference was made to the dictum in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 : AIR 2009 SC 3104 : 2010 (2) KLT 802 (SC). Per contra, it was submitted by the learned counsel for the claim petitioners that the Tribunal ought to have fixed the income taking into account the revised pay during the relevant period and fixed income accordingly. In support of the argument, he relies on the dictum in Shyno M.Aykara v. New India Assurance Company Ltd., 2023 KHC 3017 : 2023 ACJ 901.
9.1. In Sarla Verma (Supra), the accident and death occurred on 18/04/1988. The Award was passed by the Tribunal in the year 1993. The High Court decided the appeal in 2007. During this time, pay revisions came into force. The claim petitioners claimed that the income of the deceased ought to have been fixed as per the revised pay scales. Rejecting the said argument it was held by the Apex Court that the assumption of the appellants therein that 2025:KER:53594 M.A.C.A.No.12 of 2020 and 9 Cross Objection No.40 of 2022 the actual future pay revisions should be taken into account for the purpose of calculating the income, is not sound. As against the contention of the appellants that if the deceased had been alive, he would have earned the benefit of revised pay scales, it was equally possible that if he had not died in the accident, he might have died on account of ill health or other accident, or lost the employment or met some other calamity or disadvantage. The imponderables in life are too many. It was further held that the pendency of the claim proceedings in appeal for nearly two decades is a fortuitous circumstance and that would not entitle the appellants to rely upon the two pay revisions which took place in the course of the said two decades. If the claim petition filed in the year 1988 had been disposed of in the year 1988-1989 itself and if the appeal had been decided by the High Court in the year 1989-1990, then obviously the compensation would have been decided only with reference to the scale of pay applicable at the time of death and not with reference to any future revision in the scales. It was also observed 2025:KER:53594 M.A.C.A.No.12 of 2020 and 10 Cross Objection No.40 of 2022 that if the contention of the appellants therein was accepted, it would lead to the following anomalous situation - the claimants could only rely upon the pay scales in force at the time of the accident, if they are prompt in conducting the case. But if they delayed the proceedings, they can rely upon the revised higher pay scales that may come into effect during the pendency. Promptness cannot be punished in this manner. Therefore, the contention that revisions in pay scales subsequent to the death and before the final hearing should be taken note of for the purpose of determining the income for calculation of compensation of the deceased, was rejected by the Apex court.
9.2. In Shyno M. Aykara (Supra), the grievance of the appellant therein was that the revised salary and pay benefits accruing to her deceased husband who died as a consequence of the accident, had not been taken into consideration by the High Court. The accident and death took place on 17/11/2012. The pay and other emoluments of the deceased were revised w.e.f. 01/08/2012 2025:KER:53594 M.A.C.A.No.12 of 2020 and 11 Cross Objection No.40 of 2022 by order dated 23/01/2016. Therefore, the appellant contended that the higher pay accruing to her deceased husband, who was in employment as on 01/08/2012, should be the basis for reckoning compensation. This plea was declined by the High Court. When the matter came up before the Apex Court it was held that the deceased was entitled to a pay revision at least three months before the date of his death. The same was evident from the revised arrears calculation sheet for the period August 2012 to January 2016 issued by the employer in respect of the deceased. Therefore in real terms, the income of the deceased had increased. It was also seen that even the arrears for the three months period that he actually worked when he was alive, had also been disbursed to his dependents. In the said circumstances, it was held that the appellant, the legal heir of the deceased was entitled to get compensation based on the revised income of the deceased.
9.3. According to the learned counsel for the claim petitioners, in the case of Sarla Verma (Supra), the pay revision 2025:KER:53594 M.A.C.A.No.12 of 2020 and 12 Cross Objection No.40 of 2022 had occurred after the death of the deceased therein on 18/04/1988 and while the matter was pending in appeal. It was because of the said reason, the Apex Court had held that the benefit of the pay revision could not be given. However, in the case on hand, the pay revision of the year 2011 was given retrospective effect from 01/07/2009. On 01/07/2009, the deceased was very much in service and therefore had he been alive, he would have been entitled to the pay revision including the arrears and therefore, Ext.A10 pay slip ought to have been relied on by the Tribunal, goes the argument.
9.4. It is true that the pay revision took effect from 01/07/2009. However, the materials on record show that the deceased was on LWA from 08/05/2009 to 07/05/2011. Therefore, had he been alive, he would not have got the salary for the said period or the arrears for the said period based on the pay revision. Hence, Ext.A10 pay slip cannot be relied on for fixing the income of the deceased.
2025:KER:53594 M.A.C.A.No.12 of 2020 and 13 Cross Objection No.40 of 2022 9.5. Now coming to Ext.A13 income tax returns of the deceased. Ext.A13 is for the assessment year 2010-2011, which means, it is for the financial year starting from 01/04/2009 and ending on 31/03/2010. It is the case of the claim petitioners that the deceased, a Civil Engineer, had availed LWA and was doing business and was making more money than what he was drawing as salary. In the absence of better evidence and in the light of Ext.A13, the income of the deceased can be fixed only on the basis of the income tax returns. As per Ext.A13, the gross annual income of the deceased was ₹2,32,659/-. After the permissible deductions, the income tax that is seen to have been paid is ₹942/-. Therefore, the taxable income would be ₹2,31,717/- (₹2,32,659/- - ₹942/-) and so, the monthly salary comes to ₹19,309.75/- (₹2,31,717 / 12 = ₹19,309.75/-), which can be rounded to ₹19,310/-. Accordingly, the claim petitioners would be entitled to an amount of ₹21,98,443.50/- towards 'loss of dependency' (₹19,310/- + 15% of ₹19,310/- x 12x11x3/4).
2025:KER:53594 M.A.C.A.No.12 of 2020 and 14 Cross Objection No.40 of 2022 Loss of consortium
10. Admittedly, the claim petitioners are the mother, wife and four children of the deceased. The Tribunal granted an amount of ₹40,000/- towards 'loss of consortium' and ₹1,50,000/- towards 'loss of love and affection'. In the light of the dictums in Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram, (2018) 18 SCC 130: 2018 KHC 6697, United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur, AIR 2020 SC 3076: 2023 KHC 760 and New India Assurance Co. Ltd. v. Somwati, 2020 KHC 6530 : (2020) 9 SCC 644, the first claim petitioner, the mother of the deceased, is entitled to an amount of ₹40,000/- towards 'loss of filial consortium' ; the second claim petitioner, the wife of the deceased, to an amount of ₹40,000/- towards 'loss of spousal consortium' and claim petitioners 3 to 6, the children of the deceased, to an amount of ₹40,000/- each towards 'loss of parental consortium'. Therefore, the claim petitioners were entitled to a total sum of ₹2,40,000/- under the 2025:KER:53594 M.A.C.A.No.12 of 2020 and 15 Cross Objection No.40 of 2022 head 'loss of consortium'. The Tribunal has granted ₹40,000/- towards 'loss of consortium' and ₹1,50,000/- towards 'loss of love and affection', which means that an amount of ₹1,90,000/- has been given, though the amount of ₹1,50,000/- has been given under a wrong head. Therefore, I find that the claim petitioners are entitled to the balance amount of ₹50,000/- (₹2,40,000 - ₹1,90,000) towards 'loss of consortium'.
11. The impugned Award is modified to the following extent:
Sl. Head of claim Amount Amount Modified in appeal No. claimed Awarded by (in ₹) (in ₹) Tribunal (in ₹)
1. Transport to 2,000/- 3,000/- 3,000/-
hospital (No modification)
2. Damage to 1,000/- 1,000/- 1,000/-
clothing etc. (No modification)
3. Funeral 10,000/- 15,000/- 15,000/-
expenses (No modification)
4. Compensation 20,000/- 10,000/- 10,000/-
for pain and (No modification)
suffering
5. Compensation 30,000/- 1,50,000/- 1,50,000/-
for loss of love (No modification)
and affection
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M.A.C.A.No.12 of 2020 and 16
Cross Objection No.40 of 2022
6. Compensation 25,000/- 15,000/- 15,000/-
for loss of (No modification)
estate
7 Medicine & 5,000/- -- Nil
treatment (No modification)
8 Loss of 20,000/- 40,000/- 40,000/-
consortium (No modification)
50,000/-
(balance amount granted
to the claim petitioners)
(₹2,40,000 - ₹1,90,000/-
= 50,000 )
9 Compensation 15,000/- -- Nil
for shortened (No modification)
expectancy of
life
10 Compensation 42,00,000/- 53,50,950/- 21,98,444/-
for loss of (21,98,443.50/- rounded
dependency to 21,98,444/-)
(₹19,310/- + 15% of
₹19,310/- x 12x11x3/4)
Total 43,28,000/- 55,84,950/- 24,82,444/-
In the result, the appeal is allowed by deducting the compensation awarded, by an amount of ₹31,02,506/- (total compensation = ₹24,82,444/-, that is, ₹55,84,950/- granted by the Tribunal minus ₹31,02,506/- deducted in appeal).
2025:KER:53594 M.A.C.A.No.12 of 2020 and 17 Cross Objection No.40 of 2022 The cross objection is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ami/