Kerala High Court

Saji Thomas vs Cholamandalam M S General Insurance ... on 7 April, 2025

MACA NO. 1783 OF 2013 & CO NO. 12 OF 2015

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          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

         THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

   MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947

                    MACA NO. 1783 OF 2013

AGAINST THE AWARD DATED 19.02.2013 IN OPMV NO.737 OF 2011 OF

          MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM

APPELLANT/3RD RESPONDENT :-

          CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED
          KOTTAYAM NOW REPRESENTED BY ITS DEPUTY MANAGER-
          CLAIMS, ACEL ESTATE, IYYATTYIL JUNCTION,
          CHITTOOR ROAD, KOCHI -11.

          BY ADVS.
          SRI.MATHEWS JACOB (SR.)
          SRI.P.JACOB MATHEW


RESPONDENTS/PETITIONERS AND RESPONDENTS 1 & 2 :-

    1     JACOB THOMAS
          CHIRAKULAKATTU HOUSE, VELLAVOOR, MANIMALA NOW
          RESIDING AT CHIRAKULAKKATTU HOUSE, PULICKAL
          KAVALA, VAZHOOR PO,PIN 6876 320.

    2     THANKAMMA(DECEASED)
          W/O. JACOB THOMAS,CHIRAKULAKATTU HOUSE, VELLAVOOR,
          MANIMALA NOW RESIDING AT CHIRAKULAKKATTU HOUSE,
          PULICKAL KAVALA, VAZHOOR PO,PIN 6876 320

          (DEATH OF R2 RECORDED AS PER ORDER DATED 03/04/2025
          VIDE MEMO DATED 15/11/2024)

    3     ANIL, S/O.GOPALAN,MANIMALETHU KALLUMKAL HOUSE,
          NELLIKKKAMON, RANNI,PIN 689 315.

    4     SAJI THOMAS, S/O.THOMAS, VILAYIL, THOTTAMAN PO,
 MACA NO. 1783 OF 2013 & CO NO. 12 OF 2015

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          RANNI, PIN 689 315.

          BY ADVS.
          MATHEWS K.PHILIP KALAPPURACKAL PHILIPOSE
          SRI.S.JUSTUS
          SRI.T.K.KOSHY
          SRI.V.SETHUNATH
          T.MANASY(K/1628/2001)
          MINISHA K DAS(K/807/2008)



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 07.04.2025, ALONG WITH CO.12/2015, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 1783 OF 2013 & CO NO. 12 OF 2015

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                                                2025:KER:30797


          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
         THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
   MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947
                      CO NO. 12 OF 2015
AGAINST THE AWARD DATED 19.02.2013 IN OPMV NO.737 OF 2011 OF
          MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM

CROSS OBJECTOR/4TH RESPONDENT :-


          SAJI THOMAS, S/O.THOMAS, VILAYIL,
          THOTTAMAN PO, RANNI, PIN 689 315

          BY ADV SRI.T.K.KOSHY


RESPONDENTS/APPELLANT & RESPONDENTS 1 TO 3 :-

    1     CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED
          KOTTAYAM NOW REPRESENTED BY ITS DEPUTY MANAGER-
          CLAIMS, ACEL ESTATE, IYYATTYIL JUNCTION,
          CHITTOOR ROAD, KOCHI -11.

    2     JACOB THOMAS, CHIRAKULAKATTU HOUSE, VELLAVOOR,
          MANIMALA NOW RESIDING AT CHIRAKULKKATTU HOUSE,
          PULICKAL KAVALA, VAZHOOR PO, PIN-686504

    3     THANKAMMA, W/O JACOB THOMAS, CHIRAKULAKATTU HOUSE,
          VELLAVOOR, MANIMALA NOW RESIDING AT CHIRAKULAKATTU
          HOUSE, PULICKAL KAVALA, VAZHOOR PO, PIN-686504

    4     ANIL, S/O GOPALAN, MANIMALALETHU, KALLUMKAL HOUSE,
          NELLIKKAMON, RANNI, PIN-689672

          BY ADV SRI.P.JACOB MATHEW

     THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY
HEARD ON 07.04.2025, ALONG WITH MACA.1783/2013, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 1783 OF 2013 & CO NO. 12 OF 2015

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                          COMMON JUDGMENT

The 3rd respondent in O.P.(M.V.) No.737/2011 on the file of the

Motor Accident Claims Tribunal, Kottyam, is the appellant herein. On the

other hand, the 2nd respondent/owner of the vehicle in the O.P filed the Cross

Objection. (For the purpose of convenience, the parties are hereafter referred

to as per their rank before the Tribunal)

2. The O.P. was filed under under Section 166 of the Motor

Vehicles Act, 1988, by the parents of the deceased by name Subith Tom, who

died in a motor vehicle accident that occurred on 25.03.2010. According to

them, on 25.03.2010, at about 09.00 pm, while the deceased was riding a

motorcycle along Ranni - Manimala road, a tipper lorry bearing Registration

No.KL-03/H-7637 driven by the 1st respondent in a rash and negligent manner,

dashed against the motorcycle. As a result of which, he fell down and

sustained serious injuries. He succumbed to the injuries on the very same day.

3. The 2nd respondent is the owner and 3rd respondent is the insurer

of the offending vehicle. According to the petitioners, the accident occurred

due to the negligence of the driver of the offending vehicle. The quantum of

compensation claimed in the O.P. was Rs.10,43,000/-, limited to

Rs.10,00,000/-.

MACA NO. 1783 OF 2013 & CO NO. 12 OF 2015

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4. The insurance company filed a written statement, admitting the

accident as well as policy, but disputing the negligence on the part of the

driver of the offending vehicle.

5. The evidence in the case consists of the documentary evidence

Exts.A1 to A19.

6. After evaluating the evidence on record, the Tribunal found

negligence on the part of the driver of the offending vehicle, awarded a total

compensation of Rs.6,97,000/- and directed the insurer to pay the same and

permitted to recover the same from the 1st and 2nd respondent.

7. Being aggrieved by the quantum of compensation awarded by the

Tribunal, the 3rd respondent preferred this appeal and 2nd respondent preferred

this cross objection against the order for pay and recovery.

8. Now the points that arises for consideration are the following:

1) Whether the quantum of compensation awarded by the Tribunal is just and reasonable?

2) Whether the order for pay and recovery ordered by the Tribunal is justified?

9. Heard Sri.Mathews Jacob, the learned senior standing counsel

appearing for the insurer/appellant, as instructed by Sri.P.Jacob Mathew and

Smt.T.Manasy, the learned counsel appearing for the petitioners/respondents 1 MACA NO. 1783 OF 2013 & CO NO. 12 OF 2015

2025:KER:30797

and 2 and Sri.T.K.Koshi, the learned counsel appearing for cross objectors.

10. One of the arguments advanced by the learned senior counsel

for the appellant/insurer is that there was contributory negligence on the part

of the deceased also, as at the time of the accident, he was not wearing a

helmet. Further, according to him, the tribunal has awarded a sum of

Rs.50,000/- towards loss of love and affection, which cannot be granted.

11. The learned counsel appearing for the cross objector would

argue that at the time of the accident, the 1st respondent had LMV driving

licence and hence the Tribunal was not justified in permitting the 3 rd

respondent to recover the compensation from respondents 1 and 2.

12. The learned counsel for the petitioners would argue that the

compensation awarded by the Tribunal is on the lower side.

13. As per the claim petition, the deceased was an Electrical

Engineering getting a monthly income of Rs.20,000/- dirham, but the Tribunal

has fixed his notional income at Rs.6,000/-. The petitioners could not produce

any evidence to prove the income of the deceased as claimed. However, from

Ext.A8 certificate, it is revealed that he had successfully completed ITI

Certificate Course in Electrical Engineering from Industrial Training Centre,

Mallappally, in April, 1999 and as such it is revealed that he was an electrician

by profession.

MACA NO. 1783 OF 2013 & CO NO. 12 OF 2015

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14. As per the dictum laid down by the Hon'ble Supreme Court in

the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Co. Ltd. [2011 (13) SCC 236], the notional income of a coolie,

during the year 2010 will come to Rs.7,500/-. Considering the fact that the

deceased was an electrician by profession, his notional income is fixed at

Rs.9,000/-, for the purpose of computing the loss of dependency.

15. On the date of accident, the deceased was aged 29 years.

Therefore, 40% of the monthly income is liable to be added towards future

prospects, as held in the decision in National Insurance Co.Ltd v Pranay

Sethi [(2017) 16 SCC 680] and the multiplier to be applied is 17, as held in

Sarla Verma v. Delhi Transport Corporation, [(2009) 6 SCC 121]. Since

the deceased was a bachelor who left behind 2 dependents, towards personal

and living expense, 1/2 of the income is liable to be deducted, as held in Sarla

Verma (supra). In the above circumstances, the loss of dependency will come

to Rs.12,85,200/-.

16. The Tribunal has awarded Rs.10,000/- towards loss of estate,

Rs.6,000/- towards funeral expenses and Rs.50,000/- towards love and

affection. No amount was awarded towards compensation for loss of

consortium. In the light of the decision in Pranay Sethi (supra), the appellants

are entitled to get a consolidated sum of Rs.15,000/- towards loss of estate, MACA NO. 1783 OF 2013 & CO NO. 12 OF 2015

2025:KER:30797

Rs.15,000/- towards funeral expenses, and the dependents (parents, children

and spouse) are entitled to get a sum of Rs.40,000/- each towards loss of

consortium, with an increase of 10% in every three years. Therefore, towards

loss of estate and funeral expense they are entitled to get a sum of Rs.18,150/-

each. Towards loss of consortium, petitioners together are entitled to get a sum

of Rs.96,800/- (48,400 x 2).

17. Since compensation for loss of consortium was given, further

compensation for love and affection cannot be granted, in view of the

decision in New India Assurance Company Ltd. v. Somwati and Others,

[(2020)9 SCC 644]. Therefore, the compensation awarded towards love and

affection is to be deducted.

18. Towards the head 'pain and sufferings', the Tribunal has

awarded Rs.15,000/-, which according to the learned counsel for the

petitioners, is on the lower side. The deceased died in this case on the date of

the accident. In the above circumstances, I hold that the compensation

awarded towards pain and suffering is on the lower side, and hence, it is

enhanced to Rs.25,000/-.

19. No change is required, in the amounts awarded on other heads,

as the compensation awarded on those heads appears to be just and reasonable.

20. In this case, the police after investigation filed Ext.A6 charge MACA NO. 1783 OF 2013 & CO NO. 12 OF 2015

2025:KER:30797

sheet against the 1st respondent/driver of the offending vehicle alone. There is

absolutely no evidence to prove any negligence on the part of the deceased.

Therefore, the Tribunal was justified in finding negligence solely on the part

of the 1st respondent. Accordingly, I do not find any merits in the appeal filed

by the insurer.

21. The Tribunal found that at the time of the accident, the 1 st

respondent had no valid driving licence to drive the tipper lorry. The learned

counsel for the 1st respondent also admitted that he had only LMV licence. In

the above circumstances, the Tribunal was justified in permitting the 3 rd

respondent to recover the compensation from the respondents 1 and 2.

22. Therefore, the appeal and cross objection are liable to be

dismissed and at the same time, the compensation payable to the petitioners

will be enhanced to Rs.14,47,300/- as given in the table below, for easy

reference:

Sl.

  No.          Head of Claim        Amount awarded by     Amount Awarded in
                                     Tribunal (in Rs.)      Appeal (in Rs.)


   1    Transportation                       3000                 3000

   2    Funeral expenses                     6000                18,150

   3    Damage to clothings                  1000                 1000

   4    Loss of dependency                  612000             12,85,200
 MACA NO. 1783 OF 2013 & CO NO. 12 OF 2015



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   5   Pain and sufferings                   15,000                  25,000

   6   Loss of love and affection            50,000                    Nil

   7   Loss of estate                        10,000                  18,150

   8   Loss of consortium                      Nil                   96,800

       Total                                 6,97,000               14,47,300

       Enhanced to Rs.                                  7,50,300

23. In the result, the 3rd respondent is directed to deposit a total sum

of Rs.14,47,300/- (Rupees Fourteen Lakh Forty Seven Thousand Three

Hundred Only), less the amount already deposited, if any, along with interest

@ 8% per annum, from the date of the petition till realisation/deposit, with

proportionate costs, within a period of two months from today.

24. On depositing the aforesaid amount, the Tribunal shall disburse

the entire amount to the petitioners, in the ratio fixed by the Tribunal,

excluding court fee payable, if any, without delay, as per rules.