Kerala High Court
Elsy Benny vs Pradeep on 12 August, 2025
M.A.C.A.Nos.185 of 2020
and 2513 of 2020
1
2025:KER:60766
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 12TH DAY OF AUGUST 2025 / 21ST SRAVANA, 1947
MACA NO. 185 OF 2020
AGAINST THE AWARD DATED 17.07.2019 IN OPMV NO.129 OF
2018 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
PALA.
APPELLANT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE COMPANY LIMITED,
POLACHIRACKAL BUILDINGS, KK ROAD,
COLLECTORATE P.O., KOTTAYAM,
REPRESENTED BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.K.S.SANTHI
SMT.LATHA SUSAN CHERIAN
RESPONDENTS/PETITIONERS:
1 ELCY BENNY
AGED 46 YEARS,
W/O. BENNY PHILIP, PALACKAL HOUSE,
PATTITHANAM, P.O., ETTUMANOOR,
KOTTAYAM DISTRICT, PIN - 686 631.
2 AKSHAYAMOL BENNY ( MINOR)
DATE OF BIRTH 10.01.2007,
D/O. BENNY PHILIP, PALACKAL HOUSE,
PATTITHANAM P.O., ETTUMANOOR,
KOTTAYAM DISTRICT, PIN 686 631,
REPRESENTED BY HER MOTHER ELCY BENNY,
IST RESPONDENT
M.A.C.A.Nos.185 of 2020
and 2513 of 2020
2
2025:KER:60766
3 AKSHARAMOL BENNY ( MINOR)
DATE OF BIRTH 15.08.2008,
D/O. BENNY PHILIP, PALACKAL HOUSE,
PATTITHANAM P.O., ETTUMANOOR,
KOTTAYAM DISTRICT, PIN - 686 631,
REPRESENTED BY HER MOTHER ELCY BENNY,
1ST RESPONDENT.
4 P.P. JOSEPH, AGED 73 YEARS,
S/O. PYLO, PALACKAL HOUSE,
PATTITHANAM P.O., ETTUMANOOR,
KOTTAYAM DISTRICT, PIN - 686 631.
BY ADV SHRI.MANOJ RAMASWAMY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 12.08.2025, ALONG WITH MACA.2513/2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos.185 of 2020
and 2513 of 2020
3
2025:KER:60766
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 12TH DAY OF AUGUST 2025 / 21ST SRAVANA, 1947
MACA NO. 2513 OF 2020
AGAINST THE AWARD DATED 17/07/2019 IN OPMV NO.129 OF
2018 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
PALA.
APPELLANTS/PETITIONERS:
1 ELSY BENNY
AGED 46 YEARS,
(WIFE OF THE DECEASED),
W/O.LATE BENNY PHILIP,
PALACKAL HOUSE,
PATTITHANAM P.O.,
ETTUMANOOR,
KOTTAYAM DISTRICT-686 631
2 AKSHYAMOL BENNY (MINOR)
AGED 12 YEARS
(DAUGHTER OF THE DECEASED),
D/O.LATE BENNY PHILIP,
PALACKAL HOUSE,
PATTITHANAM P.O., ETTUMANOOR,
KOTTAYAM DISTRICT-686 631
(FOR AND ON BEHALF OF THE MINOR 2ND PETITIONER AS
HER MOTHER AND GUARDIAN)
3 AKSHARAMOL BENNY (MINOR)
AGED 11 YEARS
(DAUGHTER OF THE DECEASED),
D/O.LATE BENNY PHILIP, PALACKAL HOUSE,
PATTITHANAM P.O., ETTUMANOOR,
KOTTAYAM DISTRICT-686 631
(FOR AND ON BEHALF OF THE MINOR 3RD PETITIONER AS
HER MOTHER AND GUARDIAN)
M.A.C.A.Nos.185 of 2020
and 2513 of 2020
4
2025:KER:60766
4 P.P.JOSEPH
AGED 73 YEARS
S/O.PYLO, (FATHER OF THE DECEASED),
PALACKAL HOUSE, PATTITHANAM P.O.,
ETTUMANOOR, KOTTAYAM DISTRICT-686 631
BY ADV SHRI.MANOJ RAMASWAMY
RESPONDENTS/RESPONDENTS:
1 PRADEEP
S/O.CHANDRAN,
THURUTHEPARAMBIL HOUSE,
WEST MANGAD P.O.,
THRISSUR DISTRICT-685 042.
2 RAJESH K.R.
S/O.RAVEENDRAN,
KULAPARAMBIL HOUSE,
THIRUTHIKAD,
PORKULAM P.O.,
THRISSUR DISTRICT-685 042
3 THE NEW INDIA ASSURANCE CO LTD.
REP.BY ITS MANAGER,
POLACHIRACKAL BUILDINGS,
K.K.ROAD, KOTTAYAM COLLECTORATE P.O.,
KOTTAYAM DISTRICT-686 002
BY ADV SMT.LATHA SUSAN CHERIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 12.08.2025, ALONG WITH MACA.185/2020, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos.185 of 2020
and 2513 of 2020
5
2025:KER:60766
C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.Nos.185 of 2020
and 2513 of 2020
----------------------------------------------------
Dated this the 12th day of August 2025
JUDGMENT
These appeals have been filed under Section 173 of the
Motor Vehicles Act, 1988 (the Act) by the third
respondent/insurer and the claim petitioners respectively in O.P.
(MV) No.129/2018 on the file of the Motor Accidents Claims
Tribunal, Pala (the Tribunal), aggrieved by the Award dated
17/07/2019. In these appeals, the parties and the documents will
be referred to as described in the original petition.
2. The claim petitioners are the wife, children and
father of deceased Benny Philip. According to the claim
petitioners, on 17/12/2017 at about 06:15 p.m., while the
deceased was driving an autorickshaw through the MC road and
when he reached at Pattithanam junction, car bearing registration
and 2513 of 2020
2025:KER:60766
no.KL-48-J-3246 driven by the second respondent in a rash and
negligent manner dashed on the rear side of the autorickshaw, as
a result of which he sustained grievous injuries to which he
succumbed.
3. The first respondent-owner filed written
statement stating that the vehicle was insured with the third
respondent.
4. The third respondent-insurer filed written
statement admitting the policy, but denying negligence on the part
of the second respondent. The compensation claimed was
contended to be exorbitant.
5. Before the Tribunal, no oral evidence was
adduced by either side. Exts.A1 to A9 were marked on the side of
the claim petitioners. No evidence was adduced by the
respondents.
6. The Tribunal on consideration of the
documentary evidence and after hearing both sides, found
negligence on the part of the second respondent-driver of the
and 2513 of 2020
2025:KER:60766
offending vehicle resulting in the incident and hence awarded an
amount of ₹24,60,000/- together with interest @ 8% per annum
from the date of the petition till the date of realisation along with
proportionate costs. Aggrieved by the Award, the third
respondent/insurer and the claim petitioners have come up in
appeal.
7. The only point that arises for consideration in
these appeals 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
head is challenged by the third respondent-insurer-
Notional income
It is submitted by the learned counsel for the third
respondent/insurer that in the absence of any evidence, the
Tribunal fixing the notional income of the deceased at ₹14,000/-
is on the higher side and the same needs to be appropriately
and 2513 of 2020
2025:KER:60766
reduced. Per contra, it is submitted by the learned counsel for the
claim petitioners that the notional income fixed by the Tribunal is
reasonable and hence does not call for any interference.
9.1. It is true that no evidence has been adduced to
prove the income of the deceased. However, the fact that he was
an autorickshaw driver is not seen disputed. Going by the dictum
in Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Company Ltd, (2011) 13 SCC 236 the notional
income of even a coolie in the year 2017 is liable to be fixed at
₹11,000/-. That being the position and as the avocation of the
deceased is not seen disputed, I find that fixing the notional
income at ₹13,000/- would be just and reasonable.
10. The learned counsel for the third respondent-
insurer also advanced arguments relating to the amounts awarded
under the other heads, which according to the learned counsel is
on the higher side. On going through the impugned Award, I find
that reasonable amounts have been granted by the Tribunal under
the other heads and therefore, I do not find any reason for
and 2513 of 2020
2025:KER:60766
interference.
11. The award of compensation under the following
head is challenged by the claim petitioners-
Compensation towards loss of consortium
It is submitted by the learned counsel for the claim
petitioners that no amount is seen awarded to the father of the
deceased under the head loss of filial consortium.
11.1. Admittedly the claim petitioners, four in
number, are the wife, children and father of the deceased. The
Tribunal granted an amount of ₹1,20,000/- towards loss of
consortium to the wife and children of the deceased. 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, I find that the fourth claim petitioner, who is the
and 2513 of 2020
2025:KER:60766
father of the deceased is also entitled to an amount of ₹40,000/-
towards filial consortium. As per the dictum in National
Insurance Company Limited v. Pranay Sethi, 2017 (5) KHC
350: (2017) 16 SCC 680, pronounced on 31/10/2017, the
consortium amount has to be enhanced every three years by 10%.
Hence, the fourth claim petitioner is entitled to two enhancements
at the rate of 10% every three years. Therefore, the fourth claim
petitioner will be entitled to ₹48,400/-. ₹40,000/- + (40,000 x
10%) = ₹44,000/- ₹44,000/- +(44,000/- x 10%) = ₹48,400/-
12. The impugned Award is modified to the
following extent:
Sl. Head of claim Amount Amount Modified in appeal
No. claimed Awarded by
Tribunal
(in ₹) (in ₹) (in ₹)
1. Loss of earnings Nil Nil Nil
(No modification)
2. Transport to 4,000/- 4,000/- 4,000/-
hospital (No modification)
3. Other incidental 20,000/- Nil Nil
expenses (No modification)
and 2513 of 2020
2025:KER:60766
4. Damage to 2,000/- 1,000/- 1,000/-
clothing (No modification)
5. Pain and 50,000/- 1,00,000/- 1,00,000/-
sufferings (No modification)
6. Funeral expenses 50,000/- 15,000/- 15,000/-
(No modification)
7. Loss of
consortium 1,00,000/-
1st claim 40,000/- 40,000/-
petitioner - (No modification)
2nd and 3rd claim 80,000/- 80,000/-
petitioners- (No modification)
4th claim - -
petitioner- 48,400/-
8. Compensation for 2,00,000/- Nil Nil
loss of love and (No modification)
affection
9. Compensation for 38,00,000/- 22,05,000/- 20,47,500/-
loss of
dependency [13,000/- + (13,000/-
x 25%) x 12 x 14 x ¾]
10. Loss of estate Nil 15,000/- 15,000/-
(No modification)
Total 40,00,000/- 24,60,000/- 23,50,900/-
and 2513 of 2020
2025:KER:60766
In the result, both the appeals are partly allowed by
deducting the compensation by an amount of ₹1,09,100/- (total
compensation = ₹23,50,900/-, that is, ₹24,60,000/- granted by the
Tribunal minus ₹1,09,100/- deducted in appeal).
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
