Kerala High Court
The New India Assurance Co.Ltd vs Mini.P on 4 August, 2025
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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:
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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:
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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
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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
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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
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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
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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
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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
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₹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
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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)
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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
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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
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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
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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:
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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
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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/-
