Kerala High Court
Future General India Insurance Company ... vs Nicy Wilson on 4 July, 2025
M.A.C.A.No.226 of 2020 &
Cross Objection No. 34 of 2020
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2025:KER:49045
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
MACA NO. 226 OF 2020
AGAINST THE AWARD DATED 13.11.2019 IN OPMV NO.218 OF
2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR.
APPELLANT/3RD RESPONDENT IN OP(MV):
FUTURE GENERAL INDIA INSURANCE COMPANY LIMITED,
A COMPANY INCORPORATED UNDER THE COMPANIES ACT,
HAVING ITS REGISTERED OFFICE AT INDIA BULLS
FINANCE CENTRE, TOWER 3,
6TH FLOOR, SENAPATI BAPAT MARG,
ELPHINSTONE (W), MUMBAI, PIN 400 013
AND REGIONAL OFFICE AT 3RD FLOOR,
CENTRAL WAREHOUSING CORPORATION BUILDING,
MAVELI ROAD, KADAVANTHARA,
KOCHI, PIN 682 020
REPRESENTED BY ITS ASSISTANT MANAGER-LEGAL,
ALICE JOHN, AGED 40 YEARS,
W/O. RONIO BABU, RESIDING AT FLAT NO. 304,
IBIZA-1, DREAM FLOWER FLATS,
SHENOY ROAD, COCHIN 682 017
BY ADV SRI.THOMAS M.JACOB
RESPONDENTS/PETITIONERS AND 1ST ADN 2ND RESPONDENTS IN
OP(MV):
1 NICY WILSON
AGED 45 YEARS,
W/O. WILSON, VADAKKUMCHERY HOUSE,
KAPRASSERY, NEDUMBASSERY P.O,
KERALA , PIN 683585
M.A.C.A.No.226 of 2020 &
Cross Objection No. 34 of 2020
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2025:KER:49045
2 NEROME WILSON,
AGED 14 YEARS, ( DATE OF BIRTH 23-01-2006)
S/O. WILSON, VADAKKUMCHERY HOUSE, KAPRASSERY,
NEDUMBASSERY P.O., KERALA, PIN - 683 585,
REPRESENTED BY HIS MOTHER LEGAL GUARDIAN AND NEXT
FRIEND, NICY WILSON, AGED ABOUT 45 YEARS, W/O.
WILSON, VADAKKUMCHERY HOUSE, KAPRASSERY,
NEDUMBASSERY P.O., KERALA PIN - 683 585.
3 V.A.JALEEL,
AGED NOT KNOWN, FATHERS NAME NOT KNOWN,
PROPRIETOR, JEMIS ENTERPRISES,
NEAR UNIVERSITY ARC. SOUTH KALAMASSERY P.O.,
PIN - 683 104.
4 RIYAS M.A.,
AGE NOT KNOWN, S/O. ASHARAF,
MATTATHIL HOUSE, CHALAYAPILLY,
NOCHIMA, NAD P.O., ALUVA, PIN - 683 563.
BY ADV SHRI.A.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 04.07.2025, ALONG WITH CO.34/2020, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.226 of 2020 &
Cross Objection No. 34 of 2020
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2025:KER:49045
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
CO NO. 34 OF 2020
AGAINST THE ORDER/JUDGMENT DATED IN MACA NO.226 OF
2020 OF HIGH COURT OF KERALA
CROSS OBJECTORS/RESPONDENTS 1 AND 2:
1 NICY WILSON,
AGED 45 YEARS,
W/O.WILSON,
VADAKKUMCHERRY HOUSE,
KAPRASEERY,
NEDUMBASSERY - 683 585.
2 JEROM WILSON
AGED 14 YEARS
S/O.WILSON, MINOR,
VADAKKUMCHERRY HOUSE,
KAPRASEERY,
NEDUMBASSERY,
REPRESENTED BY NEXT FRIEND AND GUARDIAN
MOTHER 1ST APPELLANT,
NICY WILSON,
W/O.WILSON,
AGED 45 YEARS,
VADAKKUMCHERRY HOUSE,
KAPRASEERY,
NEDUMBASSERY,
PIN - 683 585.
BY ADV SHRI.A.N.SANTHOSH
M.A.C.A.No.226 of 2020 &
Cross Objection No. 34 of 2020
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RESPONDENT/APPELLANT:
FUTURE GENERAL INDIA INSURANCE COMPANY LTD.,
1ST FLOOR, MUSCAT TOWERS,
DOOR NO.28/3318 B1,
SA ROAD,
KADAVANTHRA,
KOCHI- 682020
REPRESENTED BY ITS ASSISTANT MANAGER LEGAL.
BY ADV SRI.THOMAS M.JACOB
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
HEARING ON 04.07.2025, ALONG WITH MACA.226/2020, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.226 of 2020 &
Cross Objection No. 34 of 2020
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2025:KER:49045
C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.No.226 of 2020
&
Cross Objection No. 34 of 2020
----------------------------------------------------
Dated this the 4th 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.218/2017 on the file of the
Motor Accidents Claims Tribunal, Perumbavoor (the Tribunal),
aggrieved by the Award dated 13/11/2019. The respondents
herein are the claim petitioners and respondents 1 and 2 in the
petition. Cross Objection No.34 of 2020 has been filed by the
claim petitioners. In this appeal and cross objection, the parties
and the documents will be referred to as described in the original
petition.
2. The claim petitioners are the wife and son of
deceased Thomas Wilson. According to the claim petitioners, on
M.A.C.A.No.226 of 2020 &
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01/02/2017 at about 02:30 p.m., while the deceased was riding
scooter bearing registration no.KL-41/J-7667 through the Cochin
Bank-NAD road and when he reached near Cochin Bank junction,
lorry bearing registration no.KL-7/BH-4827 driven by the second
respondent in a rash and negligent manner knocked him down
as a result of which he sustained grievous injuries, to which he
succumbed.
3. The first respondent-owner and second
respondent-driver of the offending vehicle filed joint written
statement admitting the accident, but denying negligence on the
part of the second respondent. The amount claimed under various
heads was also disputed.
4. The third respondent/insurer filed written
statement admitting the policy but denying negligence. The
amount of compensation claimed under various heads was also
disputed.
5. Before the Tribunal, PW1 was examined and
Exts.A1 to A13 were marked on the side of the claim petitioners.
M.A.C.A.No.226 of 2020 &
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Ext.B1 was marked on the side of the respondents.
6. The Tribunal on consideration of the oral and
documentary evidence and after hearing both sides, found
negligence on the part of the second respondent-driver of the
offending vehicle resulting in the incident and hence awarded an
amount of ₹20,77,586/- together with interest @ 8% per annum
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 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. The Award of compensation under the
following heads is challenged -
Notional income
It is submitted by the learned counsel for the third
M.A.C.A.No.226 of 2020 &
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respondent/insurer that the Tribunal without any satisfactory
evidence has fixed the notional income at ₹14,500/- and hence the
same needs to be appropriately reduced. She also challenges the
document that is produced in support of the claim, that is,
Ext.A13. Referring to the relevant entries contained in pages 2, 3
and 4, it is submitted that it cannot be believed that the deceased
was being paid a salary which is more than what was being paid
to the partners of the Firm in which he was working. It is further
submitted that the pay slip has not been produced and therefore
the Tribunal was not justified in relying on Ext.A13 in fixing the
notional income. It is also submitted by the learned counsel for
the third respondent that the wife of the deceased had some
connection with the Firm in which the deceased was working and
therefore the documents produced or the testimony of PW1
cannot be believed as it is an interested testimony. Per contra, it
is submitted by the learned counsel for the claim petitioners that
the testimony of PW1 proves Exts.A12 and A13 and that the
testimony of PW1 has not been disproved or discredited in any
M.A.C.A.No.226 of 2020 &
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way and therefore the Tribunal was justified in relying on the
same in fixing the notional income.
9.1. PW1, the owner, Electromech Agency, Aluva,
when examined before the Tribunal, deposed that an amount of
₹14,500/- was being paid as salary to the deceased. In support of
the same, Exts.A12 and A13 were produced. On going through
the testimony of PW1, I find that the marking of these documents
was never objected to when they were attempted to be brought in
evidence and marked. PW1 has further deposed that there it was
the deceased who was the sole worker in his concern and that till
the death of the latter, the salary as stated in Ext.A12 was being
paid to him. In the cross examination, PW1 has given an
explanation as to how the income/salary shown in the document is
more than what was being paid to the partner. The question asked
reads thus -
" ...ന ങൾക ക ട ന വര മ നത ക ൾ ക ട തൽ
ശമള ക ട മമന പറയ നത കളവത (Q). അ .
field -ൽ തപ ക ന സ ഫ ആയത ന ൽ ശമള
ക ട തൽ മക ട കണ .....(A)"
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This part of the testimony of PW1 is also not seen cross
examined. Therefore, he gives an explanation as to how an
amount of ₹14,500/- was being paid to the deceased as salary. On
going through the testimony of PW1, I do not find any reason(s)
to disbelieve him and therefore the Tribunal was justified in
relying on his testimony and Exts.A12 and A13 to fix the notional
income at ₹14,500/-, though the claim was for ₹30,000/-.
Loss of consortium and loss of love and affection
10. The claim petitioners are admittedly the wife
and minor son of the deceased and therefore, they are entitled to
an amount of ₹40,000/- each towards spousal and parental
consortium respectively. The Tribunal has granted the sum also.
However, as rightly pointed out by the learned counsel for the
third respondent-insurer, that when compensation for loss of
consortium is granted, a further compensation under the head loss
of love and affection cannot be granted. Therefore, the amount of
₹50,000/- granted towards compensation for love and affection
shall stand deducted.
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11. Cross Objection has been filed by the claim
petitioners seeking enhancement. However, on going through the
impugned Award, I find that just and reasonable compensation
has been awarded under all the other heads and therefore I do not
find any grounds for interference into the same.
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. Loss of 30,00,000/- 18,85,000/- 18,85,000/-
dependency (No modification)
2. Expenses for 1,00,000/- 10,000/- 10,000/-
transport (No modification)
3. Damage to 1,00,000/- 1,000/- 1,000/-
clothes (No modification)
4. Funeral expenses 1,00,000/- 15,000/- 15,000/-
(No modification)
5. Love and 10,00,000/- 50,000/- deducted
affection
6. Pain and 1,00,000/- 10,000/- 10,000/-
suffering (No modification)
7. Loss of estate 15,00,000/- 15,000/- 15,000/-
(No modification)
8. Loss of 10,00,000/- 40,000/- 40,000/-
consortium (No modification)
40,000/-
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40,000/-
(No modification)
9. Future 20,00,000/- Nil Nil
prospectus (No modification)
10 General 1,00,000/- Nil Nil
expenses (No modification)
Treatment 1,00,000/- 10,586/- 10,586/-
expenses (No modification)
11. Bystander Nil 500/- 500/-
expenses (No modification)
12. Attendance Nil 500/- 500/-
charges (No modification)
Total 91,00,000/- 20,77,586/- 20,27,586/-
limited to
40,00,000/-
In the result, the appeal is partly allowed by deducting
the compensation awarded by an amount of ₹50,000/- (total
compensation = ₹20,27,586/-, that is, ₹20,77,586/- granted by the
Tribunal minus ₹50,000/- deducted in appeal).
The cross objection is dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
