Kerala High Court
The Oriental Insurance Company Limited vs Kanakam.K.K on 21 July, 2025
2025:KER:53594
M.A.C.A.No.12 of 2020 and 1
Cross Objection No.40 of 2022
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. 12 OF 2020
AGAINST THE AWARD DATED 05/04/2019 IN OP(MV) NO.511 OF
2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR
APPELLANT/3RD RESPONDENT:
THE ORIENTAL INSURANCE COMPANY LIMITED
BR.OFFICE, KODUNGALLUR, PIN-680 664, REPRESENTED
BY ITS REGIONAL MANAGER, REGIONAL OFFICE,
ERNAKULAM NORTH, KOCHI-18.
BY ADVS. SRI.GEORGE CHERIAN (SR.)
SMT.K.S.SANTHI, STANDING COUNSEL
SMT.ALEXY AUGUSTINE
RESPONDENTS/CLAIMANTS:
1 KANAKAM.K.K
AGED 83 YEARS
HOUSE WIFE, W/O LATE MURALEEHARAN, "MIDHILA",
THEKKOOT KALARIKKAL HOUSE, KANIMANGALAM P.O.
THRISSUR DT.-680027
2 BEENA GOPAL,
AGED 58 YEARS
ASST EXE.ENGINEER, W/O LATE RAGHUNATH T.M,
"MIDHILA", THEKKOOT KALARIKKAL HOUSE,
KANIMANGALAM P.O., THRISSUR DISTRICT.680027
3 MYDHILI.T.R
AGED 31 YEARS
EMPLOYED, B PHARM, D/O LATE RAGHUNATH T.M,
"MIDHILA", THEKKOOT KALARIKKAL HOUSE,
KANIMANGALAM P.O.THRISSUR DISTRICT.680027
2025:KER:53594
M.A.C.A.No.12 of 2020 and 2
Cross Objection No.40 of 2022
4 OORMILA T.R
AGED 28 YEARS
CIVIL ENGG.STUDENT, D/O LATE RAGHUNATH T.M,
"MIDHILA", THEKKOOT KALARIKKAL HOUSE,
KANIMANGALAM P.O.THRISSUR DISTRICT.680027
5 MURALEEKRISHNA T.R,
AGED 22 YEARS
STUDENT, S/O LATE RAGHUNATH T.M, "MIDHILA",
THEKKOOT KALARIKKAL HOUSE,
KANIMANGALAM P.O.THRISSUR DISTRICT.680027
6 MAHESHKRISHNA T.R,
AGED 22 YEARS
STUDENT, S/O LATE RAGHUNATH T.M, "MIDHILA",
THEKKOOT KALARIKKAL HOUSE,
KANIMANGALAM P.O.THRISSUR DISTRICT.680027
BY ADV SRI.P.V.CHANDRA MOHAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN COME UP
FOR FINAL HEARING ON 14.7.2025, THE COURT ON 21.07.2025,
ALONG WITH CO.40/2022, DELIVERED THE FOLLOWING:
2025:KER:53594
M.A.C.A.No.12 of 2020 and 3
Cross Objection No.40 of 2022
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
CO NO. 40 OF 2022
ARISING FROM MACA NO.12 OF 2020
AGAINST THE AWARD DATED 05/04/2019 IN OP(MV) NO.511 OF
2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR
CROSS OBJECTORS/RESPONDENTS:
1 KANAKAM K.K.
AGED 84 YEARS
W/O.LATE MURALEEDHARAN, 'MIDHILA',
THEKKOTT KALARIKKAL HOUSE, KANIMANGALAM P.O.,
THRISSUR DISTRICT.
2 BEENA GOPAL
AGED 59 YEARS
ASST. EXE, ENGINEER, W/O.LATE REGHUNATH,
'MIDHILA', THEKKOOT KALARIKKAL HOUSE,
KANIMANGALAM P.O., THRISSUR DISTRICT.
3 MYDHILI T.R.
AGED 32 YEARS
EMPLOYED, B.PHARM, D/O.LATE REGHUNATH, 'MIDHILA',
THEKKOOT KALARIKKAL HOUSE, KANIMANGALAM P.O.,
THRISSUR DISTRICT.
4 OORMILA T.R.
AGED 29 YEARS
CIVIL ENGG. STUDENT, D/O.LATE REGHUNATH,
'MIDHILA', THEKKOOT KALARIKKAL HOUSE,
KANIMANGALAM P.O., THRISSUR DISTRICT.
5 MURALEEDKRISHNA T.R.
AGED 23 YEARS
STUDENT, S/O.LATE REGHUNATH, 'MIDHILA',
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M.A.C.A.No.12 of 2020 and 4
Cross Objection No.40 of 2022
THEKKOOT KALARIKKAL HOUSE, KANIMANGALAM P.O.,
THRISSUR DISTRICT.
6 MAHESHKRISHNA T.R.
AGED 23 YEARS
STUDENT, S/O.LATE REGHUNATH, 'MIDHILA',
THEKKOOT KALARIKKAL HOUSE, KANIMANGALAM P.O.,
THRISSUR DISTRICT.
BY ADV SRI.P.V.CHANDRA MOHAN
RESPONDENT/APPELLANT:
THE ORIENTAL INSURAMCE CO.LTD
BR. OFFICE, KODUNGALLUR, PIN - 680 664,
REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL
OFFICE, ERNAKULAM NORTH, KOCHI - 18.
BY ADV SMT.K.S.SANTHI, SC, ORIENTAL INSURANCE
COMPANY LTD.
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN COME UP
FOR FINAL HEARING ON 14.7.2025, THE COURT ON 21.07.2025,
ALONG WITH MACA.12/2020, DELIVERED THE FOLLOWING:
2025:KER:53594
M.A.C.A.No.12 of 2020 and 5
Cross Objection No.40 of 2022
C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.No.12 of 2020 and Cross Objection No.40 of 2022
----------------------------------------------------------------
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.511/2011 on the file of the Motor Accidents Claims
Tribunal, Thrissur, (the Tribunal), aggrieved by the Award dated
05/04/2019. The respondents herein are the claim petitioners, who
have filed cross objection claiming enhancement. In this appeal and
cross objection, the parties and the documents will be referred to as
described in the original petition.
2. According to the claim petitioners, on 23/08/2010 at
about 07:00 p.m. while deceased Raghunath was riding scooter
bearing registration no.KL-8/G-610 through Thrissur-Irinjalakuda
public road and when he reached the place by name Chevvoor, bus
bearing registration no.KL-8/AC-1406 came through the wrong
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side of the road in a rash and negligent manner and knocked him
down, as a result of which he sustained grievous injuries to which
he succumbed. A sum of ₹43,28,000/- was claimed as
compensation under various heads.
3. The first respondent/owner and second
respondent/driver of the offending vehicle remained ex parte.
4. The third respondent/insurer filed written statement
admitting the existence of a valid policy. The age, occupation and
income of the deceased were disputed. It was contended that the
compensation claimed was quite excessive.
5. Before the Tribunal, no oral evidence was adduced by
either side. Exts.A1 to A14 were marked on the side of the claim
petitioners. Ext.B1 was marked on the side of the respondents.
6. The Tribunal on consideration of the documentary
evidence and after hearing both sides, found that the accident was
due to the rash and negligent driving of the second
respondent/driver and so awarded an amount of ₹55,84,950/-
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together with interest @ 8% per annum from the date of the petition
till realisation along with proportionate costs. Aggrieved by the
quantum of compensation, the third respondent/insurer has come
up in appeal.
7. The only point that arises for consideration in this
appeal and cross objection is whether there is any infirmity in the
findings of the Tribunal calling for an interference by this Court.
8. Heard both sides.
9. It was submitted by the learned senior counsel
appearing for the third respondent/insurer that the Tribunal went
wrong in fixing the income of the deceased as ₹47,000/- when
going by their claim, his income was only ₹35,000/- per month.
Moreover, Ext.A10 salary pay slip is of August 2010. The deceased
died on 23/08/2010. He was on Leave Without Allowance (LWA)
from 08/05/2009 to 07/05/2011. Hence, Ext.A10 could not have
been relied on and so the Tribunal ought to have relied on Ext.A13
income tax returns and fixed the monthly income of the deceased.
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As the income has been wrongly fixed, interference into the same is
required. In support of the argument, reference was made to the
dictum in Sarla Verma v. Delhi Transport Corporation, (2009) 6
SCC 121 : AIR 2009 SC 3104 : 2010 (2) KLT 802 (SC). Per
contra, it was submitted by the learned counsel for the claim
petitioners that the Tribunal ought to have fixed the income taking
into account the revised pay during the relevant period and fixed
income accordingly. In support of the argument, he relies on the
dictum in Shyno M.Aykara v. New India Assurance Company
Ltd., 2023 KHC 3017 : 2023 ACJ 901.
9.1. In Sarla Verma (Supra), the accident and death
occurred on 18/04/1988. The Award was passed by the Tribunal in
the year 1993. The High Court decided the appeal in 2007. During
this time, pay revisions came into force. The claim petitioners
claimed that the income of the deceased ought to have been fixed as
per the revised pay scales. Rejecting the said argument it was held
by the Apex Court that the assumption of the appellants therein that
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the actual future pay revisions should be taken into account for the
purpose of calculating the income, is not sound. As against the
contention of the appellants that if the deceased had been alive, he
would have earned the benefit of revised pay scales, it was equally
possible that if he had not died in the accident, he might have died
on account of ill health or other accident, or lost the employment or
met some other calamity or disadvantage. The imponderables in life
are too many. It was further held that the pendency of the claim
proceedings in appeal for nearly two decades is a fortuitous
circumstance and that would not entitle the appellants to rely upon
the two pay revisions which took place in the course of the said two
decades. If the claim petition filed in the year 1988 had been
disposed of in the year 1988-1989 itself and if the appeal had been
decided by the High Court in the year 1989-1990, then obviously
the compensation would have been decided only with reference to
the scale of pay applicable at the time of death and not with
reference to any future revision in the scales. It was also observed
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that if the contention of the appellants therein was accepted, it
would lead to the following anomalous situation - the claimants
could only rely upon the pay scales in force at the time of the
accident, if they are prompt in conducting the case. But if they
delayed the proceedings, they can rely upon the revised higher pay
scales that may come into effect during the pendency. Promptness
cannot be punished in this manner. Therefore, the contention that
revisions in pay scales subsequent to the death and before the final
hearing should be taken note of for the purpose of determining the
income for calculation of compensation of the deceased, was
rejected by the Apex court.
9.2. In Shyno M. Aykara (Supra), the grievance of the
appellant therein was that the revised salary and pay benefits
accruing to her deceased husband who died as a consequence of the
accident, had not been taken into consideration by the High Court.
The accident and death took place on 17/11/2012. The pay and
other emoluments of the deceased were revised w.e.f. 01/08/2012
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by order dated 23/01/2016. Therefore, the appellant contended that
the higher pay accruing to her deceased husband, who was in
employment as on 01/08/2012, should be the basis for reckoning
compensation. This plea was declined by the High Court. When the
matter came up before the Apex Court it was held that the deceased
was entitled to a pay revision at least three months before the date
of his death. The same was evident from the revised arrears
calculation sheet for the period August 2012 to January 2016 issued
by the employer in respect of the deceased. Therefore in real terms,
the income of the deceased had increased. It was also seen that
even the arrears for the three months period that he actually worked
when he was alive, had also been disbursed to his dependents. In
the said circumstances, it was held that the appellant, the legal heir
of the deceased was entitled to get compensation based on the
revised income of the deceased.
9.3. According to the learned counsel for the claim
petitioners, in the case of Sarla Verma (Supra), the pay revision
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had occurred after the death of the deceased therein on 18/04/1988
and while the matter was pending in appeal. It was because of the
said reason, the Apex Court had held that the benefit of the pay
revision could not be given. However, in the case on hand, the pay
revision of the year 2011 was given retrospective effect from
01/07/2009. On 01/07/2009, the deceased was very much in
service and therefore had he been alive, he would have been
entitled to the pay revision including the arrears and therefore,
Ext.A10 pay slip ought to have been relied on by the Tribunal,
goes the argument.
9.4. It is true that the pay revision took effect from
01/07/2009. However, the materials on record show that the
deceased was on LWA from 08/05/2009 to 07/05/2011. Therefore,
had he been alive, he would not have got the salary for the said
period or the arrears for the said period based on the pay revision.
Hence, Ext.A10 pay slip cannot be relied on for fixing the income
of the deceased.
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9.5. Now coming to Ext.A13 income tax returns of the
deceased. Ext.A13 is for the assessment year 2010-2011, which
means, it is for the financial year starting from 01/04/2009 and
ending on 31/03/2010. It is the case of the claim petitioners that the
deceased, a Civil Engineer, had availed LWA and was doing
business and was making more money than what he was drawing as
salary. In the absence of better evidence and in the light of
Ext.A13, the income of the deceased can be fixed only on the basis
of the income tax returns. As per Ext.A13, the gross annual
income of the deceased was ₹2,32,659/-. After the permissible
deductions, the income tax that is seen to have been paid is ₹942/-.
Therefore, the taxable income would be ₹2,31,717/- (₹2,32,659/- -
₹942/-) and so, the monthly salary comes to ₹19,309.75/-
(₹2,31,717 / 12 = ₹19,309.75/-), which can be rounded to
₹19,310/-. Accordingly, the claim petitioners would be entitled to
an amount of ₹21,98,443.50/- towards 'loss of dependency'
(₹19,310/- + 15% of ₹19,310/- x 12x11x3/4).
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Loss of consortium
10. Admittedly, the claim petitioners are the mother, wife
and four children of the deceased. The Tribunal granted an amount
of ₹40,000/- towards 'loss of consortium' and ₹1,50,000/- towards
'loss of love and affection'. 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. 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, the mother of the deceased, is entitled to an amount of
₹40,000/- towards 'loss of filial consortium' ; the second claim
petitioner, the wife of the deceased, to an amount of ₹40,000/-
towards 'loss of spousal consortium' and claim petitioners 3 to 6,
the children of the deceased, to an amount of ₹40,000/- each
towards 'loss of parental consortium'. Therefore, the claim
petitioners were entitled to a total sum of ₹2,40,000/- under the
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head 'loss of consortium'. The Tribunal has granted ₹40,000/-
towards 'loss of consortium' and ₹1,50,000/- towards 'loss of love
and affection', which means that an amount of ₹1,90,000/- has
been given, though the amount of ₹1,50,000/- has been given under
a wrong head. Therefore, I find that the claim petitioners are
entitled to the balance amount of ₹50,000/- (₹2,40,000 - ₹1,90,000)
towards 'loss of consortium'.
11. The impugned Award is modified to the following
extent:
Sl. Head of claim Amount Amount Modified in appeal
No. claimed Awarded by (in ₹)
(in ₹) Tribunal
(in ₹)
1. Transport to 2,000/- 3,000/- 3,000/-
hospital (No modification)
2. Damage to 1,000/- 1,000/- 1,000/-
clothing etc. (No modification)
3. Funeral 10,000/- 15,000/- 15,000/-
expenses (No modification)
4. Compensation 20,000/- 10,000/- 10,000/-
for pain and (No modification)
suffering
5. Compensation 30,000/- 1,50,000/- 1,50,000/-
for loss of love (No modification)
and affection
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6. Compensation 25,000/- 15,000/- 15,000/-
for loss of (No modification)
estate
7 Medicine & 5,000/- -- Nil
treatment (No modification)
8 Loss of 20,000/- 40,000/- 40,000/-
consortium (No modification)
50,000/-
(balance amount granted
to the claim petitioners)
(₹2,40,000 - ₹1,90,000/-
= 50,000 )
9 Compensation 15,000/- -- Nil
for shortened (No modification)
expectancy of
life
10 Compensation 42,00,000/- 53,50,950/- 21,98,444/-
for loss of (21,98,443.50/- rounded
dependency to 21,98,444/-)
(₹19,310/- + 15% of
₹19,310/- x 12x11x3/4)
Total 43,28,000/- 55,84,950/- 24,82,444/-
In the result, the appeal is allowed by deducting the
compensation awarded, by an amount of ₹31,02,506/- (total
compensation = ₹24,82,444/-, that is, ₹55,84,950/- granted by the
Tribunal minus ₹31,02,506/- deducted in appeal).
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The cross objection is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
ami/
