Kerala High Court
The National Insurance Co. Ltd vs Dhanya on 15 January, 2025
MACA2407/2016 & CO 68/2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 15TH DAY OF JANUARY 2025 / 25TH POUSHA, 1946
MACA NO. 2407 OF 2016
OPMV NO.1052 OF 2011 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL, PERUMBAVOOR
APPELLANT/ADDL.5TH RESPONDENT
THE NATIONAL INSURANCE CO. LTD.
PERUMBAVOOR, REPRESENTED BY ITS DEPUTY MANAGER,
REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING,
M.G.ROAD, KOCHI 35.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.LATHA SUSAN CHERIAN
SMT.K.S.SANTHI
RESPONDENTS/CLAIMANTS
1 DHANYA
W/O.ANEESH, VAZHANGATTIL HOUSE, AIRAPURAM, PIN:
683 541.
2 CHANDRAN, S/O IKKORAN, VAZHANGATTIL HOUSE,
AIRAPURAM 683 541.
3 SANTHA, W/O.CHANDRAN, VAZHANGTTIL HOUSE,
AIRAPURAM, PIN: 683 541.
4 ADITH.V.ANEESH (MINOR), DATED OF BIRTH 20/4/09
S/O.ANEESH, VAZHANGATTIL HOUSE, AIRAPURAM
PIN 683 541 (REPRESENTED BY MOTHER 1ST RESPONDENT)
BY ADV SRI.ELSON SIMON
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FIANLLY
HEARD ON 19.12.2024, ALONG WITH CO.68/2018, THE COURT ON
15.1.2025 DELIVERED THE FOLLOWING:
MACA2407/2016 & CO 68/2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 15TH DAY OF JANUARY 2025 / 25TH POUSHA, 1946
CO NO. 68 OF 2018
MACA NO.2407 OF 2016 OF HIGH COURT OF KERALA
CROSS OBJECTOR/PETITIONER/RESPONDENT
1 DHANYA, W/O. ANEESH, AGED 25, VAZHANGATTIL
HOUSE,AIRAPURAM, ERNAKULAM DISTRICT.
2 CHANDRAN, AGED 58, S/O. IKKORAN, VAZHANGATTIL
HOUSE,AIRAPURAM, ERNAKULAM DISTRICT.
3 SANTHA, W/O. CHANDRAN, AGED 53, VAZHANGATTIL
HOUSE,AIRAPURAM, ERNAKULAM DISTRICT.
4 ADITH V.ANESH, AGED 2 YEARS, REP. BY DHANYA,W/O.
ANEESH, AGED 25, VAZHANGATTIL HOUSE,AIRAPURAM,
ERNAKULAM DISTRICT.
BY ADV SRI.ELSON SIMON
RESPONDENT/APPELLANT/ADDL.5TH RESPONDENT
NATIONAL INSURANCE CO LTD
PERUMBAVOOR, REP. BY DEPUTY MANAGER,REGIONAL
OFFICE, 2ND FLOOR, OMANA BUILDING,M.G. ROAD,
KOCHI-35.
BY ADV SMT.K.S.SANTHI
SMT.LATHA SUSAN CHERIAN-SC
THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION
ON 19.12.2024, ALONG WITH MACA.2407/2016, THE COURT ON
15.1.2025 DELIVERED THE FOLLOWING:
MACA2407/2016 & CO 68/2018
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JUDGMENT
Dated : 15th January, 2025
The 3rd respondent in OP(MV).1052/2011 on the file of the
Motor Accidents Claims Tribunal, Perumbavoor, is the appellant
herein. The petitioners in the OP are the cross objectors. (For the
purpose of convenience, the parties are hereafter referred to as
per their rank before the Tribunal)
2. The petitioners are the wife, parents and minor son of
the deceased Aneesh, who died in a motor vehicle accident that
occurred on 16.4.2011. According to the petitioners, on
16.4.2011, at about 7.15 p.m the deceased was riding motor
cycle bearing No.TN 59/H-2847 through MC road at Pulluvazhy
Nangelipady from south to north direction. At that time a mini
lorry bearing No.KL-17/8853 driven by the 1st respondent in a
rash and negligent manner from the opposite direction, suddenly
turned towards its right-hand side, without giving any signal and
hit down the motor cycle ridden by the deceased resulting in his
death on 25.4.2011.
3. The driver, owner and insurer of the mini lorry are
respondent Nos.1, and Additional respondents 4 and 5
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respectively. According to the them, the accident occurred due to
the negligence of the driver of the offending vehicle. Therefore,
they filed the OP claiming a compensation of Rs.34,30,000/-
limited to Rs.1500000/-.
4. The respondents 2 and 3 who are the owner and
insurer of the motorcycle were deleted from the party array. The
additional 5th respondent/insurer alone filed a written statement,
admitting the policy and disputing the negligence on the part of
the driver of the offending vehicle. It was further contended that
the accident occurred due to the negligence of the deceased.
5. The evidence in the case consists of the oral testimony
of PW1 and documentary evidence Exts.A1 to A12. No evidence
was adduced by the respondents.
6. After evaluating the evidence on record, the Tribunal
awarded a total compensation of Rs.22,18,955/-
7. Aggrieved by the quantum of compensation awarded by
the Tribunal, the 5th respondent preferred this appeal, while the
petitioners preferred the cross-objection.
8. Now the point that arises for consideration is the
following:
Whether the quantum of compensation awarded by the Tribunal is
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just and reasonable.
9. Heard Sri.George Cherian, the learned Senior Counsel
appearing for the appellant, and Smt.Latha Susan Cherian, the
learned Counsel for the original petitioner.
10. The Point: In this case the accident and valid policy of
the offending vehicle are not disputed in the appeal. Though in the
written statement the 3rd respondent has contended that the
accident occurred due to the negligence of the deceased, at the
time of arguments such a contention was not taken. The
petitioners produced Ext.A5, copy of the charge sheet involved in
the crime registered against the driver of the offending vehicle, in
respect to the above accident. In the light of the above charge
sheet, negligence on the part of the driver of the offending vehicle
stands proved. Therefore, the 5th respondent, being the insurer, is
liable to indemnify the compensation, which is liable to be
awarded against the owner of the offending vehicle.
11. At the time of the incident, the deceased was aged 29
years. The incident was on 16.4.2011. The petitioners claimed
that being a driver, the deceased was having a monthly income of
Rs.8000/- However, they could not prove the said claim, by
adducing evidence. As per the dictum laid down by the Hon'ble
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Supreme Court in Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited, [(2022) 13
SCC 236], the notional income of a Coolie in the year 2004 is to
be fixed on Rs.4,500/- and for every succeeding year, a sum of
Rs.500/- is to be added. If so, the notional income of a Coolie in
the year 2011 will come to Rs.8,000/-.
12. The learned Counsel for the petitioners relying upon the
decision of the Hon'ble Supreme Court in Manusha Sreekumar
vs United India Insurance Co. Ltd 2022 LiveLaw (SC) 858,
would argue that, in an accident in the year 2015, the Hon'ble
Supreme Court has fixed the notional income of a driver in Kerala
at Rs.15,600/- per month. Therefore, by relying upon the above
decision, he submitted to fix the notional income of the deceased
at least at Rs.13,000/-.
13. The prayer was opposed by the learned counsel for the
5th respondent (insurer), by relying upon the decision of the
Hon'ble Supreme Court in Chandra @Chandra @ Chandraram
and Anr. v. Mukesh Kumar Yadav and Ors., [(2022) 1 SCC
198] wherein the notional income of a driver in Rajasthan was
fixed for the year 2016 at Rs.6,000/- per month. Therefore,
considering the entire facts, the notional income of the deceased
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is refixed at Rs.12,000/-
14. Since, on the date of accident, the deceased was aged
29 years, 40% of his income is to be added towards future
prospects, and the multiplier to be applied is 17 in the light of the
decision in National Insurance Co.Ltd v Pranay Sethi [(2017)
16 SCC 680].
15. The deceased being married and having 4 dependents,
deduction towards his personal and living expense is 1/4 of his
income, in the light of the decision of Hon'ble Supreme Court in
Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC
121]. Therefore, the loss of dependency will come to
Rs.2570400/-
16. The Tribunal awarded Rs.15,000/- towards loss of
estate, Rs.25000/- towards funeral expenses, and Rs.1,000,00/-
towards loss of consortium. In the light of the decision in Pranay
Sethi (supra), the appellants are entitled to a consolidated sum of
Rs.15,000/- towards loss of estate, Rs.15,000/- towards funeral
expenses, Rs.40,000/- each towards loss of consortium, with an
increase of 10% for every three years. Therefore, the amount of
compensation on account of loss of estate and funeral expense
will come to Rs.18,150/- each and loss of consortium will come to
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Rs1,93,600/- (48,400 x 4.), to petitioners 1 to 4.
17. The Tribunal has awarded Rs.3,50,000/- towards love
and affection. Since compensation for loss of consortium was
given, further amount 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 above
sum of Rs.3,50,000/- given towards love and affection is to be
deducted.
18. Towards pain and suffering, the Tribunal has awarded
only a sum of Rs.7,000/-. It was argued by the learned counsel
for the petitioner that though the accident was on 16.4.2011, the
victim died only on 25.4.2011 after undergoing pain and suffering
for ten days. Therefore he would argue that the compensation
awarded under the heard pain and suffering is too meagre.
19. On the other hand, the learned senior counsel for the 5th
respondent would argue that since the victim died, the legal heirs
are not entitled to get any compensation for pain and suffering.
He has also relied upon the decision of the Hon'ble Supreme Court
in Oriental Insurance Company Ltd. v. Kahlon @ Jasmil
Singh Kahion, AIR 2021 SC 3913, in which the Hon'ble
Supreme Court held that the legal heirs are not entitled to get any
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compensation under the head pain and suffering as it is a personal
injury suffered by the deceased.
20. However, in the State of Kerala by virtue of Section 2 of
the Kerala Torts (Miscellaneous Provisions) Act, 1977 (in short the
Act of 1977), the cause of action on account of the personal claim
would survive to the legal heirs. Application of the above
provisions was dealt with by a Division bench of this Court in
Anuradha Varma v. State of Kerala, 1993 (2) KLT 777 in
paragraph 8 the Division Bench observed as follows :
"8. Coming to the merits of the case, we do not think that any
interference is called for in regard to the award of the M.A.C.T.
except in regard to pain and suffering for which no
compensation was awarded by the Tribunal. As stated earlier,
the Tribunal rejected the same on the basis of the concession
made by the advocate that on the death of the original claimant
Santharam Varma that claim abates and the legal
representatives are not entitled to claim the same. In the light
of Section 2 of the Kerala Torts (Miscellaneous Provisions) Act,
1977, even such claims survive the death of the injured. By
Section 9 of the aforementioned Act, Section 306 of the Indian
Succession Act, 1925, so far as it relates to light of action in
torts, shall cease to apply to the State of Kerala. Accordingly
the legal representatives are entitled to initiate an action for
such damages or to proceed with the claim already made by the
injured. It is well settled that a concession by the advocate on a
question of law is not binding on the parties and they are
entitled to challenge the same in appeal.
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21. In the decision in Jaya v. Shaji, 2014 (1) KLT 31,
another Division Bench of this Court also had occasion to consider
the effect of Section 2 of Act of 1977. In paragraph 6 the Division
Bench held that :
"6. It is an admitted fact that Rajesh sustained injuries in a motor
vehicle accident and the Tribunal also found that the accident
occurred due to the negligent driving of the vehicle by its driver.
It is also an admitted fact that he sustained severe injuries and
underwent treatment for long time and thereafter he died later on
25/12/2001. It is true that there is no evidence adduced on the
side of the appellants to prove that he died due to the injuries
sustained by him in the accident. The Tribunal dismissed the
application on the ground that the personal action will not survive
after the death of the person under the principle actio personalis
moritu cum causa (persona) (personal action will die with the
person). But the Tribunal failed to understand that by virtue of
S.2 of the Kerala Torts (Miscellaneous Provisions) Act, 1977 (Act 8
of 1977), (hereinafter called 'the Act'), the cause of action on
account of the personal claim would survive to the legal heirs. S.2
of the Act reads as follows:
"2. Effect of death on certain causes of action.-- On the death of
any person after the commencement of this Act, all causes of
action subsisting against or vested in him shall survive against,
or, as the case may be, for the benefit of, his estate:
Provided that this section shall not apply to causes of action for
defamation or seduction or for inducting one spouse to leave or
remain apart from the other or to claims for damages on the
ground of adultery."
Further, in the decision reported in Ali (Late) v. Sumesh, 2010
KHC 6219 : 2010 (3) KLT 70, this Court has held that S.2 of the
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above Act is incorporated to undo the restriction introduced by
S.306 of the Indian Succession Act. Further, in the decision
reported in Anuradha Varma v. State of Kerala, 1993 KHC 419 :
1993 (2) KLT 777 : 1993 (2) KLJ 708 : ILR 1994 (1) Ker. 610,
this Court, while interpreting S.2 and S.9 of the above Act, has
held that legal representatives are entitled to initiate action for
such damages or to proceed with the claim already made by the
injured and that they are entitled to claim compensation under
the head 'pain and suffering' of the deceased apart from other
amounts payable to the injured as his legal heirs. So, under the
circumstances, the Tribunal was not justified in dismissing the
claim of the appellants on the ground that the personal action
available to the deceased will not survive to his legal heirs after
his death and the dismissal of the claim on that ground is
unsustainable in law. In view of the discussions made above, the
finding of the Tribunal to that effect is liable to be set aside. We
do so. We hold that the application is maintainable and the
appellants are entitled to claim compensation for the personal
injury sustained by the deceased.
22. In the decision in Jyni and Ors. v. Raphael P.T. And
Ors, 2016 (2) KHC 870, in a case where the victim died on the
date of accident itself, a sum of Rs.10,000/- was awarded as
compensation for pain and suffering by another Division Bench of
this Court. In the decision in Mable and Ors. v. Lenoy
Sebastian and Others, ILR 2024 (1) Ker. 958, a Single Bench
of this Court awarded a compensation of Rs.1,00,000/- towards
pain and suffering, in a case where the victim died after eight
months. In Cholamandalam General Insurance Company
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Limited. v. Kusumam, MANU/KE/4552/2024, another Single
Bench of this Court awarded Rs.25,000/- as compensation for pain
and suffering in a case where the victim died on the date of
accident. In the decision in Sanobanu Nazirbhai Mirza andOrs.
v. Ahmedabad Municipal Transport Service, (2013) 16 SCC
719 also, a sum of Rs.25,000/- was awarded on the head pain
and suffering in a case where the victim died on the date of
accident. In Pushkar Mehra v. Brij Mohan Kushwaha and
Others, 2015 KHC 4889 in a case of death of the victim on the
spot, Rs.25,000/- was awarded on the head pain and suffering.
23. Therefore, in the light of the above decisions and the
provisions of the Act of 1977 referred above, in Kerala, the legal
representatives can claim compensation for pain and suffering of
the deceased. Therefore, I hold that in this case also the
petitioners are entitled to get reasonable compensation under the
head pain and suffering. Considering the facts I hold that a
compensation for Rs.50,000/- will be a reasonable compensation
for pain and suffering in this case.
24. No change is required, in the amounts awarded on
other heads, as the compensation awarded on those heads
appears to be just and reasonable.
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25. Therefore, the petitioners/cross objectors are entitled
to get a total compensation of Rs.2965755/- as modified and
recalculated above and given in the table below, for easy
reference.
Sl. No. Head of claim Amount awarded by The amount
the Tribunal(Rs) given in appeal
(Rs.)
1 Loss of dependency 1606500 2570400
2 Loss of estate 15000 18150
3 Expense for transport 6000 6000
4 Damage to clothes 1000 1000
5 Funeral expenses 25000 18150
6 Medical expense 106455 106455
7 Pain and suffering 7000 50000
8 Love and affection 350000 Nil
9 Loss of consortium 100000 193600
10 Extra nourishment Nil Nil
11 Attendance charges 2000 2000
Total 2218955 2965755
Amount enhanced 4,25,500
26. In the result, this Appeal is allowed in part, and the 3 rd
respondent is directed to deposit a total compensation of
Rs.2965755/- (Rupees twenty nine lakhs sixty five thousand
seven hundred and fifty five only), less the amount already
deposited, if any, along with interest at the rate ordered by the
Tribunal from the date of petition till realisation, excluding interest
for a period of 81 days' the delay in filing the appeal, with
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proportionate costs, within a period of two months from today
(Interest for the enhanced compensation is limited to 8%).
27. On depositing the aforesaid amount, the Tribunal shall
disburse the entire amount to the petitioners, in the ratio fixed by
the Tribunal, excluding court fee payable, if any, without delay and
as per rules.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
GBG/Mrcs
