National Insurance Co.Ltd vs Sadanandan
2025 Latest Caselaw 7941 Ker

Kerala High Court

National Insurance Co.Ltd vs Sadanandan on 11 April, 2025

                                                 2025:KER:31702
MACA NO. 954 OF 2021
                               1

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

             THE HONOURABLE MR. JUSTICE EASWARAN S.

 FRIDAY, THE 11TH DAY OF APRIL 2025 / 21ST CHAITHRA, 1947

                      MACA NO. 954 OF 2021

        AGAINST THE AWARD DATED 11.10.2019 IN OPMV NO.1344 OF

2018 OF ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM

APPELLANT/3RD RESPONDENT:

           NATIONAL INSURANCE CO.LTD.,
           COCHIN DIVISIONAL OFFICER, RAVIPURAM, M.G.ROAD,
           KOCHI - 682 016, REPRESENTED BY ITS MANAGER,
           KOCHI REGIONAL OFFICE, OMANA BUILDINGS, JEWS
           STREET, MG ROAD, ERNAKULAM - 682 035.


           BY ADV P.G.JAYASHANKAR


RESPONDENTS/PETITIONERS IN OP(MV) AND RESPONDENTS 1 AND 2
IN OP(MV):

    1      SADANANDAN
           AGED 62 YEARS
           S/O.KRISHNAN, PADIKKAL, ERAMALLOOR P.O.,
           EZHUPUNNA, ALAPPUZHA - 688 537.

    2      SOUMYA
           AGED 33 YEARS
           W/O.SUJEESH, KAITHAKUZHY, NADUVATH NAGAR P.O.,
           PANAVALLY, CHERTHALA - 688 526.

    3      REMYA P.S.
           AGED 30 YEARS
           W/O.SUBEESH KUMAR, AZHAKANTHARA VELI, AROOR P.O.,
           ALAPPUZHA - 688 534.
                                               2025:KER:31702
MACA NO. 954 OF 2021
                            2

    4    THE MANAGING DIRECTOR
         K.S.R.T.C., FORT P.O., TRIVANDRUM - 695 023.

    5    ANEESH MANIKANDAN P.C.
         S/O.CHITHRA BANU P.K, H.NO.805A, PALLIPARAMBIL
         HOUSE, CHATIATH, PACHALAM P.O., KOCHI - 682 012.


         BY ADVS.
         ANIL S.RAJ
         SRI.P.C.CHACKO(PARATHANAM) FOR R4
         K.N.RAJANI FOR R1 TO R3
         RADHIKA RAJASEKHARAN P.
         ANILA PETER
         ALEX ANTONY SEBASTIAN P.A.



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 07.04.2025, THE COURT ON 11.04.2025 DELIVERED THE
FOLLOWING:
                                                            2025:KER:31702
MACA NO. 954 OF 2021
                                     3


                          EASWARAN S., J.
                    ------------------------------------
                        MACA No.954 of 2021
                    -------------------------------------
                Dated this the 11th day of April, 2025

                              JUDGMENT

This appeal is preferred by the Insurance Company aggrieved

by the award passed by the Addl.Motor Accidents Claims Tribunal,

Ernakulam in OP(MV) No.1344/2018.

2. The brief facts necessary for the disposal of the appeal are

as follows:

The claimants are the legal heirs of one Remani, who died in a road

traffic accident on 21.4.2018 at 5 pm. While she was crossing

Alappuzha-Ernakulam NH Zebra line, a KSRTC bus bearing

registration No.KL-15/7317 hit on the scooter. Due to the impact of

the accident, the deceased fell down and sustained fatal injuries.

Though she was taken to Lakeshore Hospital, Nettoor, she succumbed

to the injuries on the same day.

3. The claimants contended that the deceased was a cook in

a hotel and was earning a sum of Rs.18,000/- per month. In support

of their contention, the claimants produced Exts.A1 to A3 documents.

2025:KER:31702 MACA NO. 954 OF 2021

The tribunal, on appreciation of evidence, found that the deceased

Remani had to be treated as a skilled worker and, therefore,

proceeded to fix her notional income at Rs.13,500/- per month. Since

the deceased was survived by three dependants, 1/3rd of her income

was deducted towards personal and living expenses. The tribunal, in

addition to the above, granted loss of estate and loss of consortium to

the 1st claimant and also Rs.40,000/- each under the head love and

affection to the claimants 2 and 3. Thus, the tribunal awarded the

following compensation:

Sl. Head of claim Amount Amount Basis Vital details in No. Claimed Awarded a nut shell (Rs.) (Rs.) 1 Parental consortium Nil 80000 2x40000 (2nd and 3rd petitioner) 2 Loss of estate 50000 15000 3 Transport to hospital 10000 10000 4 Compensation for love and 100000 80000 2x40000 (P2 and affection P3 5 Funeral expenses 25000 15000 6 Treatment expenses 20000 Nil 7 Compensation for loss of 2000000 1306800 dependency 8 Compensation for pain and 50000 Nil sufferings 9 Loss of consortium 50000 40000 1st petitioner 10 Mental shock and agony 30000 Nil Total 23,35,000 15,46,800 Claim is limited to Rs.23,00,000/-

2025:KER:31702 MACA NO. 954 OF 2021

4. Challenging the quantum of compensation awarded by

the tribunal, the insurance company has preferred the present appeal

by contending that the notional income adopted by the tribunal is

without any rationale and against the principles laid down by the

Supreme Court in Ramachandrappa v. The Manager, Royal

Sundaram Alliance Insurance Company Ltd. (2011 (13) SCC

236). The insurance company further contended that the tribunal

erred egregiously in granting compensation under the head love and

affection in addition to the parental consortium granted to the 2nd and

3rd claimants.

5. Heard Sri.P.G.Jayashankar, the learned counsel

appearing for the appellant-insurance company, and Smt.K.N.Rajani,

the learned counsel appearing for the claimants.

6. On consideration of the rival submissions raised across

the bar, this Court is of the considered view that the appeal preferred

by the insurance company can only be allowed partly. From the facts

narrated above, it is evident that the insurance company questions the

quantum of compensation basically on two heads; (a) fixation of

notional income, and (b) grant of compensation towards love and

affection over and above the compensation granted under the head 2025:KER:31702 MACA NO. 954 OF 2021

loss of consortium. Although it is contended that claimants 2 and 3

cannot be considered dependents, this Court is of the view that in the

light of the decision of the Supreme Court in National Insurance

Company Ltd. v. Birender and Others [(2020) 11 SCC 356]

and this Court in United India Insurance Co. Ltd. v. Shalumol

[2021 (5) KLT 74], the contention of the insurance company

questioning the dependency of claimants 2 and 3 cannot be sustained.

7. As regards the claim that the income fixed by the tribunal

is on the higher side, it must be noted by this Court that the accident

took place in the year 2018. Therefore, prima facie, this Court is of

the view that the income fixed by the tribunal is not proper in terms

of the notification issued by the State of Kerala under the provisions

of the Minimum Wages Act.

8. In Angad Tiwari & Anr v. National Insurance

Company Ltd. (Civil Appeal 10950 of 2024 decided on

1.10.2024 : 2024 KHC 8590), the Supreme Court held that while

fixing the income of the deceased/claimant, the tribunals or courts

shall not fix the same below that of the minimum wage.

9. In G.O.(P) No.56/2017/Fin dated 28.4.2017, the State of

Kerala has fixed the minimum wage and going by the said notification, 2025:KER:31702 MACA NO. 954 OF 2021

it is seen that for a coolie worker, an amount of Rs.17,325/- is fixed as

the minimum wage.

10. However, the learned counsel appearing for the appellant-

insurance company placed extensive reliance on GO(P)

No.196/2016/LBR dated 21.12.2016 pertaining to the revised

minimum wage in shops and commercial establishments in the State

of Kerala and going by the same, according to the learned counsel, the

minimum wage is only around Rs.10,000/-.

11. In the considered view of this Court, there are glaring

infirmities in the submissions of the learned counsel for the insurance

company. It must be noted that the notification relied on by the

learned counsel for the insurance company is of the year 2016,

whereas the Government has revised the notification during the year

2017, that is to say, with effect from 1.4.2017. Going by the averments

in the claim petition, the claimants have sought the income of

deceased Remani to be fixed at Rs.18,000/-. Therefore, this Court

will have to balance the case as projected by the claimants as well as

by the insurance company. Admittedly, the State Government has not

come up with a notification pertaining to the fixation of minimum

wage in respect of the shops and commercial establishments for the 2025:KER:31702 MACA NO. 954 OF 2021

relevant year. But, that by itself will not deter this Court from fixing

suitable notional income based on the available notification issued by

the State of Kerala under the provisions of the Minimum Wages Act,

1948. Admittedly, the wages fixed for the year 2016 cannot be form

the basis of determination of the notional income. The claimants are

in a disadvantageous position inasmuch as the Government did not

deem fit to revise the minimum wage for persons who are employed

in shops and commercial establishments after 2016. But at the same

time, it has gone ahead and revised the minimum wage under other

unorganized sectors. Therefore, this Court is of the view that while

fixing the notional income in such circumstances a more reasonable

and realistic approach has to be taken.

12. In Sanjay Kumar Vs Ashok Kumar & ors [(2014)5

SCC 330], the Supreme Court held that even in the absence of any

documentary evidence regarding the proof of income, if the claim

appears to be reasonable based on the ground realities, the tribunal

can fix the income as claimed by the petitioner in the claim petition.

13. The broad principle governing the fixation of the notional

income being stated as above, this Court has to consider the issue as

to whether in an appeal preferred by the insurance company, the 2025:KER:31702 MACA NO. 954 OF 2021

compensation liable to be paid to the claimants can be enhanced. This

question is no longer res integra, in view of the decision of this Court

in Reliance General Insurance v. Bindu & Others [MACA

No.1946/2021 decided on 19.12.2024 : 2025 KHC 228].

Therefore, this Court is of the view that, in the interest of justice, the

income of deceased Remani has to be refixed by exercising the power

under Order-XLI Rule-33 of the Code of Civil Procedure, 1908.

Accordingly, while finding the question of fixation of income against

the insurance company, this Court, in the exercise of its powers under

Order-XLI Rule-33, refix the income of deceased Remani at

Rs.18,000/- per month.

14. Next, it is contended by Sri.P.G.Jayashankar, the learned

counsel appearing for the insurance company, that the tribunal could

not have granted compensation under the head love and affection

after granting the benefit under the head loss of consortium. On this

point, this court finds considerable force in the argument of the

learned counsel for the insurance company and therefore is of the

view that the claimants are not entitled to dual benefit both under the

head loss of consortium and loss of love and affection. Accordingly,

the compensation granted under the head love and affection for the 2025:KER:31702 MACA NO. 954 OF 2021

2nd and 3rd claimants are liable to be deleted accordingly.

15. In the result, the appeal preferred by the insurance

company is partly allowed. In exercise of its powers under Order-XLI

Rule-33 CPC, this Court fixed the notional income of deceased

Remani at Rs.18,000/- and granting 10% future prospects, the

income of the deceased Remani would be Rs.19,800/- per month.

The loss of dependency is thus recalculated as follows:

19,800x12x11x2/3 = 17,42,400-13,06,800

= Rs.4,35,600

The amount of Rs.80,000/- granted under the head love and affection

is to be deleted, and thus, the amount so arrived will be Rs.3,55,600/-.

The insurance company is directed to deposit a further sum of

Rs.3,55,600/- together with interest @ 8% per annum from the date

of petition till realisation. The claimants will also be entitled to

proportionate costs, in tune with the enhancement so granted by this

Court.

Ordered accordingly.

Sd/-

EASWARAN S. JUDGE Jg 2025:KER:31702 MACA NO. 954 OF 2021

PETITIONER ANNEXURES

Minimum Wage Relevant excerpts of Notification Notification bearing No. G.O(P) No. 196/2016/LBR dated 21.12.2016 pertaining to the revised minimum rates of wages in Shops and Commercial Establishments in the State of Kerala