Kerala High Court
The New India Assurance Co.Ltd vs Kanakamma Sivan on 21 July, 2025
M.A.C.A.No.315 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
MACA NO. 315 OF 2020
AGAINST THE AWARD DATED 26.06.2019 IN OPMV NO.713 OF
2018 ON THE FILE OF THE ADDITIONAL MACT, ERNAKULAM.
APPELLANT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE CO.LTD.
KOTTAKKAL ARYAVAIDHYASALA BUILDING,
M.G.ROAD, ERNAKULAM,
REPRESENTED BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.LATHA SUSAN CHERIAN
SMT.K.S.SANTHI
RESPONDENTS/PETITIONERS:
1 KANAKAMMA SIVAN
AGED 62 YEARS,
W/O.SIVAN, VADAKKE KAIMATTU HOUSE,
VADUTHALA JETTY P.O., AROOKUTTY VILLAGE,
CHERTHALA TALUK, ALAPPUZHA-688 535.
2 MANJU.V.M.,
AGED 25 YEARS,
D/O.MANIYAPPAN,
VADAKKE KAIMATTU HOUSE,
VADUTHALA JETTY P.O.,
AROOKUTTY VILLAGE, CHERTHALA TALUK,
ALAPPUZHA-688 535.
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3 GOPIKRISHNAN.V.M.,
AGED 21 YEARS
S/O.MANIYAN, VADAKKE KAIMATTU HOUSE,
VADUTHALA JETTY P.O., AROOKUTTY VILLAGE,
CHERTHALA TALUK, ALAPPUZHA-688 535.
4 HARIKRISHNAN.V.M.,
AGED 21 YEARS
S/O.MANIYAN, VADAKKE KAIMATTU HOUSE,
VADUTHALA JETTY P.O., AROOKUTTY VILLAGE,
CHERTHALA TALUK, ALAPPUZHA-688 535.
5 YEDUKRISHNAN.V.M.,
AGED 18 YEARS
S/O.MANIYAN, VADAKKE KAIMATTU HOUSE,
VADUTHALA JETTY P.O., AROOKUTTY VILLAGE,
CHERTHALA TALUK, ALAPPUZHA-688 535.
BY ADVS.
SRI.MATHEWS K.PHILIP
SMT.T.MANASY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 21.07.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.315 of 2020
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C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.No.315 of 2020
----------------------------------------------------
Dated this the 21st day of July 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.713/2018 on the file of the
Additional Motor Accidents Claims Tribunal, Ernakulam (the
Tribunal), aggrieved by the amount of compensation granted by
Award dated 26/06/2019. 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 mother and four
children of deceased Maniyappan. According to the claim
petitioners, on 26/12/2017 at about 09:00 p.m., while the deceased
was trying to step into the road from the median at the place by
name Chandiroor in Alappuzha-Ernakulam national highway,
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KSRTC bus bearing registration no.KL-15A-858 driven by the
first respondent in a rash and negligent manner hit him, as a result
of which he sustained grievous injuries to which he succumbed.
3. The first respondent-driver and second
respondent-Managing Director of the KSRTC remained ex-parte.
4. The third respondent/insurer filed written
statement admitting the policy, but denying negligence on the part
of the first respondent. Amount claimed under various heads was
also 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 documentary 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 first respondent-driver of the
offending bus resulting in the incident and hence awarded an
amount of ₹32,28,000/- together with interest @ 9% per annum
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from the date of the petition 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 heads are challenged by the third
respondent/insurer-
Notional income
It is submitted by the learned counsel for the third
respondent/insurer that the notional income of ₹20,000/- fixed by
the Tribunal is on the higher side and hence the same needs to be
reduced. Per contra, it is submitted by the learned counsel for the
claim petitioners that in the light of Ext.A9, the notional income
fixed at the rate of ₹20,000/- per month is just and reasonable and
that it does not call for any interference.
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9.1 Ext.A9 salary certificate has not been proved by
examining the person who issued the same. Therefore the
Tribunal was right in not relying on Ext.A9 to fix the income.
Going by the dictum in Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Co. Ltd, (2011) 13 SCC 236, the
income of even a coolie in the year 2017 is liable to fixed at the
rate of ₹11,000/- per month. The fact that the deceased was a
carpenter, is not disputed. That being the position, I find that
fixing the notional income at ₹14,000/- per month would be just
and reasonable.
Loss of future prospects
10. It is submitted by both sides that the addition
that has to be made to the established income towards loss of
future prospects is 25%. However, the Tribunal wrongly added
30% and hence the same needs to be corrected. Accordingly, the
addition that has to be made to the established income will be
25% of the income.
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Compensation towards loss of consortium
11. The Tribunal has granted an amount of
₹1,20,000/-, that is, at the rate of ₹40,000/- each to claim
petitioners 3 to 5, who are the children of the deceased.
Admittedly, the first claim petitioner is the mother and claim
petitioners 2 to 5 are the children of the deceased. Therefore
going by 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. v. 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, the first claim petitioner is entitled to an
amount of ₹40,000/- towards loss of filial consortium and the
remaining claim petitioners, that is, the children of the deceased,
to ₹40,000/- each towards parental consortium. Therefore, the
total amount to which they are entitled is ₹2 lakhs. The Tribunal
has granted only an amount of ₹1,20,000/-. Therefore, they shall
be entitled to balance amount of ₹80,000/-.
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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. Transport to 10,000/- 4,000/- 4,000/-
hospital (No modification)
2. Damage to 5,000/- 2,000/- 2,000/-
clothing and (No modification)
articles
3. Funeral 40,000/- 15,000/- 15,000/-
expenses (No modification)
4. Compensation 1,50,000/- 30,000/- 30,000/-
for pain and (No modification)
sufferings
5. Loss of short 2,00,000/- Nil Nil
expectation in (No modification)
life
6. Compensation 2,00,000/-
for loss of
guidance 1,20,000/- 2,00,000/-
(1,20,000/- +
Compensation 3,00,000/- 80,000)
for loss of love
and affection
7. Loss of estate 50,000/- 15,000/- 15,000/-
(No modification)
8. Compensation 45,00,000/- 30,42,000/- 20,47,500/-
for loss of 14,000/-
dependency (14,000/- +
25%) x 12 x 13
9. Medical 15,000/- Nil Nil
expenses (No modification)
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10. Extra 15,000/- Nil Nil
nourishment (No modification)
11. Compensation 2,00,000/- Nil Nil
for mental (No modification)
agony
Total 56,20,000/- 32,28,000/- 23,13,500/-
In the result, the appeal is allowed by deducting the
compensation by an amount of ₹9,14,500/- (total compensation =
₹23,13,500/- that is, ₹32,28,000/- granted by the Tribunal
minus ₹9,14,500/- deducted in appeal).
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
