Kerala High Court

Bajaj Alliance General Insurance ... vs Subair on 17 February, 2025

                                                    2025:KER:14957
              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
      MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
                         MACA NO. 126 OF 2016
 AGAINST THE AWARD DATED 21.04.2015 IN OPMV NO.1302 OF 2010 OF
     ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA

APPELLANT/3RD RESPONDENT :-

             THE DIVISIONAL MANAGER
             BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LTD.,
             REGIONAL OFFICE, 3RD FLOOR, FINANCE TOWER,
             REPRESENTED BY ITS MANAGER, KALOOR,
             COCHIN-682017, ERNAKULAM.

             BY ADV SEBASTIAN VARGHESE(K/141/2000)


RESPONDENTS/PETITIONERS 1 TO 4 AND RESPONDENTS 1 AND 2 :-

      1      SUBAIR, S/O.SULAIMAN, THOPPIL VALIYAPARAMBIL,
             KANNAMKARA, PATHANAMTHITTA P.O.-689645.

      2      SAJITHA, D/O.JASMIN SUBAIR, THOPPIL VALIYAPARAMBIL,
             KANNAMKARA, PATHANAMTHITTA P.O.-689645.

      3      AJMAL S., S/O.SUBAIR, THOPPIL VALIYAPARAMBIL,
             KANNAMKARA, PATHANAMTHITTA P.O.-689645.

      4      ALFIYA SUBAIR (MINOR), D/O.JASMIN SIBAIR,
             THOPPIL VALIYAPARAMBIL, KANNAMKARA,
             PATHANAMTHITTA P.O., REPRESENTED BY FATHER AND
             NATURAL GUARDIAN NAMELY MR.SUBAIR-689645.

      5      RENJITH KUMAR C.S.
             S/O.SREEDHARAN, CHETTIYAMPARAMBIL HOUSE,
             KULAYETTIKKARA P.O., KECHERRY, ERNAKULAM-682315.

      6      MS/.POMANNY'S RITE CHOICE, SUPER STORES PVT.LTD.,
             PENTA TOWER, KALOOR, ERNAKULAM-682017.

             BY ADV A.N.SANTHOSH

       THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON   17.02.2025,   THE   COURT     ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 MACA NO. 126 OF 2016

                                      2


                                                             2025:KER:14957




                                 JUDGMENT

The 3rd respondent in O.P.(M.V.) No.1302/2010 on the file of the

Motor Accident Claims Tribunal, Pathanamthitta, is the appellant herein. (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 husband and children of the deceased by name

Jasmin Subair, who died in a motor vehicle accident that occurred on

05.08.2010. According to the petitioners, on 05.08.2010, while the deceased

along with others were travelling in a maruti car along the Alappuzha -

Pandalam through M.C road, a lorry bearing registration No.KL-07-BM-3946

driven by the 1st respondent in a rash and negligent manner hit against the

maruti car and as a result of which, he sustained severe injuries. He succumbed

to the injuries on 08.08.2010.

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.26,81,000/-. MACA NO. 126 OF 2016

2025:KER:14957

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 oral testimonies of PWs

1 and 2 and documentary evidence Exts.A1 to A36.

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.20,45,805/- and directed the insurer to pay the same.

7. Challenging the order of the Tribunal 3rd respondent preferred this

appeal.

8. Now the point that arises for consideration is the following:

Whether the quantum of compensation awarded by the Tribunal is just

and reasonable?

9. Heard Sri.Sebastian Varghese, the learned Standing Counsel

appearing for the appellant/insurance company, and Sri.A.N.Santhosh, the

learned counsel appearing for the petitioners/claimants.

10. The Point: The Tribunal fixed the notional income of the

deceased at Rs.7500/-. The notional income fixed by the Tribunal is only just

and reasonable; hence, no interference is called for. One of the contentions

raised by the learned counsel for the 3 rd respondent is that towards future

prospects, the Tribunal has added 30% of the income instead of 25%. MACA NO. 126 OF 2016

2025:KER:14957

11. On the date of accident, the deceased was aged 40 years.

Therefore, only 25% 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 15, as

held in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121.

Since the deceased was married who left behind 4 dependants, towards

personal and living expense, 1/4 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.12,65,625/-.

12. Another contention raised by the learned counsel for the 3rd

respondent is that the Tribunal has awarded Rs.50,000/- towards pain and

suffering, Rs.1,00,000/- towards loss of estate, Rs.25,000/- towards funeral

expenses, Rs.1,00,000/- towards loss of consortium and Rs.2,00,000/- towards

love and affection, which are on the higher side. 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, 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, MACA NO. 126 OF 2016

2025:KER:14957

petitioners together are entitled to get a sum of Rs.1,93,600/- (48,400 x 4).

13. 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.

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

awarded Rs.50,000/-, which according to the learned counsel for the 3rd

respondent, is on the higher side. The deceased died in this case three days

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

awarded towards pain and suffering is on the higher side and hence it is

reduced to Rs.30,000/-.

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

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

16. Therefore, the petitioners/ appellants are entitled to get a total

compensation of Rs.15,77,580/-, as modified and recalculated above and given

in the table below, for easy reference.

Sl.

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

            1     Loss of dependency             1518750           12,65,625
 MACA NO. 126 OF 2016




                                                                       2025:KER:14957

            2   Pain and sufferings               50000                 30,000

            3   Funeral expenses                  25000                 18,150

            4   Transport to hospital             1000                   1000

            5   Loss of consortium               1,00,000              1,93,600

            6   Damage to clothes                 1000                   1000

            7   Loss of love and affection       2,00,000                 Nil

            8   Loss of estate                   1,00,000               18,150

            9   Medical& Treatment               50,055                 50,055
                expenses

                Total                            2045805               15,77,580

                 Amount reduced                             4,68,225

17. In the result, this Appeal is allowed in part, and the 3rd

respondent is directed to deposit a total sum of Rs.15,77,580/- (Rupees Fifteen

Lakh Seventy Seven Thousand Five Hundred and Eighty Only), less the

amount already deposited, if any, along with interest at the rate ordered by the

Tribunal, from the date of the petition till realisation/deposit, excluding interest

for a period of 145 days, the period of delay in filing the appeal, within a

period of two months from today. (enhanced compensation will carry interest

@8%).

MACA NO. 126 OF 2016

2025:KER:14957

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

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