Kerala High Court
The National Insurance Co.Ltd vs Babu on 5 August, 2025
M.A.C.A.No.412 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 5TH DAY OF AUGUST 2025 / 14TH SRAVANA, 1947
MACA NO. 412 OF 2020
AGAINST THE AWARD DATED 19.02.2019 IN OPMV NO.276 OF
2017 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH PARAVUR.
APPELLANT/3RD RESPONDENT:
THE NATIONAL INSURANCE CO.LTD.
BRANCH OFFICE, MUNICIPAL SHOPPING COMPLEX,
MAIN ROAD, NORTH PARAVOOR,
REPRESENTED BY ITS MANAGER,
REGIONAL OFFICE, 2ND FLOOR,
OMANA BUILDING, M.G.ROAD, KOCHI-35.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.ALEXY AUGUSTINE
RESPONDENTS/PETITIONERS:
1 BABU
S/O.GANGADHARAN,
AGED 57 YEARS, KALATHIPARAMBIL HOUSE,
MALIANKARA KARA, MALIANKARA (PO),
MOOTHAKUNNAM VILLAGE - 683 516.
2 RADHIKA
W/O.BABU, AGED 49 YEARS,
KALATHIPARAMBIL HOUSE,
MALIANKARA KARA,
MALIANKARA (P.O.)
MOOTHAKUNNAM VILLAGE - 683 516.
M.A.C.A.No.412 of 2020
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3 ATHIRA
D/O.BABU, AGED 22 YEARS,
KALATHIPARAMBIL HOUSE,
MALIANKARA KARA, MALIANKARA (P.O.),
MOOTHAKUNNAM VILLAGE - 683 516.
BY ADV SHRI.A.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 05.08.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.412 of 2020
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C.S.SUDHA, J.
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M.A.C.A.No.412 of 2020
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Dated this the 5th day of August 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.276/2017 on the file of the
Motor Accidents Claims Tribunal, North Paravur (the Tribunal),
aggrieved by the amount of compensation granted by Award
dated 19/02/2019. The respondents herein are the claim
petitioners in the petition. In this appeal, the parties and the
documents will be referred to as described in the original petition.
2. The claim petitioners are the parents and sister
of deceased Ajaykumar. According to the claim petitioners, on
19/02/2016 at 11:35 a.m., while the deceased was travelling in
pick up van bearing registration no.KL8-AQ-1778 driven by the
first respondent through Cherthala - Ernakulam road and when
they reached the place by name Aroor, due to the rash and
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negligent driving of the first respondent, the vehicle dashed on the
backside of a lorry which was parked by the side of the road, as a
result of which he sustained grievous injuries, to which he
succumbed.
3. The first respondent-driver and the second
respondent-owner of the offending vehicle remained ex-parte.
4. The third respondent-insurer filed written
statement admitting the policy. It was contended that the deceased
was travelling as a gratuitous passenger and hence liability was
denied.
5. Before the Tribunal, no oral evidence was
adduced by either side. Exts.A1 to A7 were marked on the side of
the claim petitioners. No documentary evidence was adduced by
the third respondent.
6. The Tribunal on consideration of the
documentary evidence and after hearing both sides, found
negligence on the part of the first respondent-driver of the
offending vehicle resulting in the incident and hence awarded an
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amount of ₹33,61,896/- together with interest @ 7.5% per annum
from the date of the petition till the date of award and @9% per
annum from the date of award 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 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 by the Tribunal
under the following head is challenged by the third respondent-
Notional income
It is submitted by the learned counsel for the third
respondent/insurer that the notional income of the deceased fixed
as ₹16,000/- by the Tribunal is on the higher side as there are no
materials on record to substantiate the allegation regarding the
monthly income. Per contra, it is submitted by the learned
counsel for the claim petitioners that the fact that the latter was a
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businessman dealing in second hand fishing net as stated in
Ext.A1 FIR has not been disputed and that being the position, the
amount of ₹16,000/- fixed by the Tribunal is reasonable and does
not call for any interference.
9.1. It is true that in Ext.A1 FIR/FIS, it is stated that
the deceased was a businessman dealing in the sale of second
hand fishing net. However, the document does not help this
Court in finding out the income of the deceased. Going by the
dictum in Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Ltd, (2011) 13 SCC 236, the
income of a coolie in the year 2016 is liable to be fixed at
₹10,500/- per month. Hence in the facts and circumstances of the
case, I find that an amount of ₹12,000/-, in the absence of any
other evidence, can be fixed as the notional income of the
deceased.
Additions to be made towards future prospects
10. It is submitted by both sides that the deceased
being aged 24 years old, it was 40% of the income that was liable
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to be added towards future prospects. But the Tribunal had
wrongly added 50%. Hence, the addition to be made shall be
40% of the income towards future prospects.
Compensation for loss of consortium and love and affection
11. An amount of ₹6,00,000/- was claimed. The
Tribunal granted an amount of ₹2,50,000/- under this head. 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. vs 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, claim petitioners 1 and 2, who are the parents of the
deceased are entitled to an amount of ₹40,000/- each towards
filial consortium. The third claim petitioner being the sister of the
deceased, is not entitled to any amount towards loss of
consortium. However, she can be granted an amount of ₹40,000/-
towards loss of love and affection. Therefore, the total amount to
which the claim petitioners are entitled is ₹1,20,000/-. An
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amount of ₹2,50,000/- though under a wrong head has been
awarded and hence the excess amount of ₹1,30,000/- awarded
shall be deducted.
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. Damage to 5,000/- 2,000/- 2,000/-
clothing (No modification)
2. Funeral expenses 50,000/- 15,000/- 15,000/-
(No modification)
3. Transportation 25,000/- 10,000/- 10,000/-
expenses (No modification)
4. Medical expenses 7,00,000/- 3,77,896/- 3,77,896/-
(No modification)
5. Compensation for 3,00,000/- 1,00,000/- 1,00,000/-
pain and suffering (No modification)
6. Compensation for 32,40,000/- 25,92,000/- 18,14,400/-
loss of 12,000
dependency +(12,000/- x
40%) x 18 x 12
7. Compensation for 6,00,000/- 1,00,000/- 1,20,000/-
loss of love and (40,000/- x 3)
affection, service,
companionship 1,00,000/-
to the first
petitioner second 50,000/-
petitioners third
petitioner
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8. Compensation for 1,00,000/- Nil Nil
loss of company, (No modification)
security, service
and dependency
etc to the
petitioners
9. Compensation for 1,00,000/- Nil Nil
mental agony (No modification)
pain etc to the
petitioners
10. Compensation for 2,00,000/- 15,000/- 15,000/-
loss of estate (No modification)
Total 53,20,000/- 33,61,896/- 24,54,296/-
In the result, the appeal is allowed by deducting the
compensation by an amount of ₹9,07,600/- (total compensation =
₹24,54,296/-, that is, ₹33,61,896/- granted by the Tribunal minus
₹9,07,600/- deducted in appeal).
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
