Kerala High Court
Nicy Wilson vs Future General India Insurance Company ... on 4 July, 2025
M.A.C.A.No.226 of 2020 &
Cross Objection No. 34 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
MACA NO. 226 OF 2020
AGAINST THE AWARD DATED 13.11.2019 IN OPMV NO.218 OF
2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR.
APPELLANT/3RD RESPONDENT IN OP(MV):
FUTURE GENERAL INDIA INSURANCE COMPANY LIMITED,
A COMPANY INCORPORATED UNDER THE COMPANIES ACT,
HAVING ITS REGISTERED OFFICE AT INDIA BULLS
FINANCE CENTRE, TOWER 3,
6TH FLOOR, SENAPATI BAPAT MARG,
ELPHINSTONE (W), MUMBAI, PIN 400 013
AND REGIONAL OFFICE AT 3RD FLOOR,
CENTRAL WAREHOUSING CORPORATION BUILDING,
MAVELI ROAD, KADAVANTHARA,
KOCHI, PIN 682 020
REPRESENTED BY ITS ASSISTANT MANAGER-LEGAL,
ALICE JOHN, AGED 40 YEARS,
W/O. RONIO BABU, RESIDING AT FLAT NO. 304,
IBIZA-1, DREAM FLOWER FLATS,
SHENOY ROAD, COCHIN 682 017
BY ADV SRI.THOMAS M.JACOB
RESPONDENTS/PETITIONERS AND 1ST ADN 2ND RESPONDENTS IN
OP(MV):
1 NICY WILSON
AGED 45 YEARS,
W/O. WILSON, VADAKKUMCHERY HOUSE,
KAPRASSERY, NEDUMBASSERY P.O,
KERALA , PIN 683585
M.A.C.A.No.226 of 2020 &
Cross Objection No. 34 of 2020
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2025:KER:49045
2 NEROME WILSON,
AGED 14 YEARS, ( DATE OF BIRTH 23-01-2006)
S/O. WILSON, VADAKKUMCHERY HOUSE, KAPRASSERY,
NEDUMBASSERY P.O., KERALA, PIN - 683 585,
REPRESENTED BY HIS MOTHER LEGAL GUARDIAN AND NEXT
FRIEND, NICY WILSON, AGED ABOUT 45 YEARS, W/O.
WILSON, VADAKKUMCHERY HOUSE, KAPRASSERY,
NEDUMBASSERY P.O., KERALA PIN - 683 585.
3 V.A.JALEEL,
AGED NOT KNOWN, FATHERS NAME NOT KNOWN,
PROPRIETOR, JEMIS ENTERPRISES,
NEAR UNIVERSITY ARC. SOUTH KALAMASSERY P.O.,
PIN - 683 104.
4 RIYAS M.A.,
AGE NOT KNOWN, S/O. ASHARAF,
MATTATHIL HOUSE, CHALAYAPILLY,
NOCHIMA, NAD P.O., ALUVA, PIN - 683 563.
BY ADV SHRI.A.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 04.07.2025, ALONG WITH CO.34/2020, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.226 of 2020 &
Cross Objection No. 34 of 2020
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2025:KER:49045
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
CO NO. 34 OF 2020
AGAINST THE ORDER/JUDGMENT DATED IN MACA NO.226 OF
2020 OF HIGH COURT OF KERALA
CROSS OBJECTORS/RESPONDENTS 1 AND 2:
1 NICY WILSON,
AGED 45 YEARS,
W/O.WILSON,
VADAKKUMCHERRY HOUSE,
KAPRASEERY,
NEDUMBASSERY - 683 585.
2 JEROM WILSON
AGED 14 YEARS
S/O.WILSON, MINOR,
VADAKKUMCHERRY HOUSE,
KAPRASEERY,
NEDUMBASSERY,
REPRESENTED BY NEXT FRIEND AND GUARDIAN
MOTHER 1ST APPELLANT,
NICY WILSON,
W/O.WILSON,
AGED 45 YEARS,
VADAKKUMCHERRY HOUSE,
KAPRASEERY,
NEDUMBASSERY,
PIN - 683 585.
BY ADV SHRI.A.N.SANTHOSH
M.A.C.A.No.226 of 2020 &
Cross Objection No. 34 of 2020
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2025:KER:49045
RESPONDENT/APPELLANT:
FUTURE GENERAL INDIA INSURANCE COMPANY LTD.,
1ST FLOOR, MUSCAT TOWERS,
DOOR NO.28/3318 B1,
SA ROAD,
KADAVANTHRA,
KOCHI- 682020
REPRESENTED BY ITS ASSISTANT MANAGER LEGAL.
BY ADV SRI.THOMAS M.JACOB
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
HEARING ON 04.07.2025, ALONG WITH MACA.226/2020, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.226 of 2020 &
Cross Objection No. 34 of 2020
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2025:KER:49045
C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.No.226 of 2020
&
Cross Objection No. 34 of 2020
----------------------------------------------------
Dated this the 4th 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.218/2017 on the file of the Motor Accidents Claims Tribunal, Perumbavoor (the Tribunal), aggrieved by the Award dated 13/11/2019. The respondents herein are the claim petitioners and respondents 1 and 2 in the petition. Cross Objection No.34 of 2020 has been filed by the claim petitioners. In this appeal and cross objection, the parties and the documents will be referred to as described in the original petition.
2. The claim petitioners are the wife and son of deceased Thomas Wilson. According to the claim petitioners, on M.A.C.A.No.226 of 2020 & Cross Objection No. 34 of 2020 6 2025:KER:49045 01/02/2017 at about 02:30 p.m., while the deceased was riding scooter bearing registration no.KL-41/J-7667 through the Cochin Bank-NAD road and when he reached near Cochin Bank junction, lorry bearing registration no.KL-7/BH-4827 driven by the second respondent in a rash and negligent manner knocked him down as a result of which he sustained grievous injuries, to which he succumbed.
3. The first respondent-owner and second respondent-driver of the offending vehicle filed joint written statement admitting the accident, but denying negligence on the part of the second respondent. The amount claimed under various heads was also disputed.
4. The third respondent/insurer filed written statement admitting the policy but denying negligence. The amount of compensation claimed under various heads was also disputed.
5. Before the Tribunal, PW1 was examined and Exts.A1 to A13 were marked on the side of the claim petitioners. M.A.C.A.No.226 of 2020 & Cross Objection No. 34 of 2020 7 2025:KER:49045 Ext.B1 was marked on the side of the respondents.
6. The Tribunal on consideration of the oral and documentary evidence and after hearing both sides, found negligence on the part of the second respondent-driver of the offending vehicle resulting in the incident and hence awarded an amount of ₹20,77,586/- together with interest @ 8% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved by the Award, 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. The Award of compensation under the following heads is challenged -
Notional income It is submitted by the learned counsel for the third M.A.C.A.No.226 of 2020 & Cross Objection No. 34 of 2020 8 2025:KER:49045 respondent/insurer that the Tribunal without any satisfactory evidence has fixed the notional income at ₹14,500/- and hence the same needs to be appropriately reduced. She also challenges the document that is produced in support of the claim, that is, Ext.A13. Referring to the relevant entries contained in pages 2, 3 and 4, it is submitted that it cannot be believed that the deceased was being paid a salary which is more than what was being paid to the partners of the Firm in which he was working. It is further submitted that the pay slip has not been produced and therefore the Tribunal was not justified in relying on Ext.A13 in fixing the notional income. It is also submitted by the learned counsel for the third respondent that the wife of the deceased had some connection with the Firm in which the deceased was working and therefore the documents produced or the testimony of PW1 cannot be believed as it is an interested testimony. Per contra, it is submitted by the learned counsel for the claim petitioners that the testimony of PW1 proves Exts.A12 and A13 and that the testimony of PW1 has not been disproved or discredited in any M.A.C.A.No.226 of 2020 & Cross Objection No. 34 of 2020 9 2025:KER:49045 way and therefore the Tribunal was justified in relying on the same in fixing the notional income.
9.1. PW1, the owner, Electromech Agency, Aluva, when examined before the Tribunal, deposed that an amount of ₹14,500/- was being paid as salary to the deceased. In support of the same, Exts.A12 and A13 were produced. On going through the testimony of PW1, I find that the marking of these documents was never objected to when they were attempted to be brought in evidence and marked. PW1 has further deposed that there it was the deceased who was the sole worker in his concern and that till the death of the latter, the salary as stated in Ext.A12 was being paid to him. In the cross examination, PW1 has given an explanation as to how the income/salary shown in the document is more than what was being paid to the partner. The question asked reads thus -
" ...ന ങൾക ക ട ന വര മ നത ക ൾ ക ട തൽ
ശമള ക ട മമന പറയ നത കളവത (Q). അ .
field -ൽ തപ ക ന സ ഫ ആയത ന ൽ ശമള
ക ട തൽ മക ട കണ .....(A)"
M.A.C.A.No.226 of 2020 &
Cross Objection No. 34 of 2020
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2025:KER:49045
This part of the testimony of PW1 is also not seen cross examined. Therefore, he gives an explanation as to how an amount of ₹14,500/- was being paid to the deceased as salary. On going through the testimony of PW1, I do not find any reason(s) to disbelieve him and therefore the Tribunal was justified in relying on his testimony and Exts.A12 and A13 to fix the notional income at ₹14,500/-, though the claim was for ₹30,000/-. Loss of consortium and loss of love and affection
10. The claim petitioners are admittedly the wife and minor son of the deceased and therefore, they are entitled to an amount of ₹40,000/- each towards spousal and parental consortium respectively. The Tribunal has granted the sum also. However, as rightly pointed out by the learned counsel for the third respondent-insurer, that when compensation for loss of consortium is granted, a further compensation under the head loss of love and affection cannot be granted. Therefore, the amount of ₹50,000/- granted towards compensation for love and affection shall stand deducted.
M.A.C.A.No.226 of 2020 & Cross Objection No. 34 of 2020 11 2025:KER:49045
11. Cross Objection has been filed by the claim petitioners seeking enhancement. However, on going through the impugned Award, I find that just and reasonable compensation has been awarded under all the other heads and therefore I do not find any grounds for interference into the same.
12. The impugned Award is modified to the following extent:
Sl. Head of claim Amount Amount Modified in No. claimed Awarded by appeal Tribunal (in ₹) (in ₹) (in ₹)
1. Loss of 30,00,000/- 18,85,000/- 18,85,000/-
dependency (No modification)
2. Expenses for 1,00,000/- 10,000/- 10,000/-
transport (No modification)
3. Damage to 1,00,000/- 1,000/- 1,000/-
clothes (No modification)
4. Funeral expenses 1,00,000/- 15,000/- 15,000/-
(No modification)
5. Love and 10,00,000/- 50,000/- deducted
affection
6. Pain and 1,00,000/- 10,000/- 10,000/-
suffering (No modification)
7. Loss of estate 15,00,000/- 15,000/- 15,000/-
(No modification)
8. Loss of 10,00,000/- 40,000/- 40,000/-
consortium (No modification)
40,000/-
M.A.C.A.No.226 of 2020 &
Cross Objection No. 34 of 2020
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40,000/-
(No modification)
9. Future 20,00,000/- Nil Nil
prospectus (No modification)
10 General 1,00,000/- Nil Nil
expenses (No modification)
Treatment 1,00,000/- 10,586/- 10,586/-
expenses (No modification)
11. Bystander Nil 500/- 500/-
expenses (No modification)
12. Attendance Nil 500/- 500/-
charges (No modification)
Total 91,00,000/- 20,77,586/- 20,27,586/-
limited to
40,00,000/-
In the result, the appeal is partly allowed by deducting the compensation awarded by an amount of ₹50,000/- (total compensation = ₹20,27,586/-, that is, ₹20,77,586/- granted by the Tribunal minus ₹50,000/- deducted in appeal).
The cross objection is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE Jms