Kerala High Court
National Insurance Co.Ltd vs Leena K.J on 2 June, 2025
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M.A.C.A.No.382 of 2020 and
Cross Objection No.141 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 2ND DAY OF JUNE 2025 / 12TH JYAISHTA, 1947
MACA NO. 382 OF 2020
AGAINST THE AWARD DATED 21.08.2018 IN OP(MV) NO.2223
OF 2016 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
ERNAKULAM
APPELLANT/2ND RESPONDENT:
NATIONAL INSURANCE CO.LTD.
THIRD PARTY CELL, AJAY VIHAR, M.G.ROAD,
KOCHI - 16, REP BY ITS MANAGER,
NATIONAL INSURANCE CO.LTD., ERNAKULAM.
BY ADV LATHA SUSAN CHERIAN
RESPONDENTS/CLAIMANTS 1 AND 2 AND 1ST RESPONDENT:
1 LEENA K.J.
AGED 68 YEARS
D/O.JOSEPH K.J., KOILPARAMBIL HOUSE, NEAR WATER
TANK, CHELLANAM P.O., KANNAMALY,
ERNAKULAM - 682 008.
2 GEORGE SEBATIAN K.J.
AGED 66 YEARS, S/O.JOSEPH K.J.,
KOILPARAMBIL HOUSE, NEAR ROSHINI WATER TANK,
CHELLANAM P.O., KANNAMALY, KUMBALANGHY,
ERNAKULAM - 682 008.
3 JIBIN JOSEPH P.G.
S/O.GEORGE P.L., PUTHEN VELIYIL HOUSE,
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NORTH CHELLANAM P.O., CHELLANAM VILLAGE,
ERNAKULAM DISTRICT, KOCHI - 8.
BY ADVS.SRI.P.M.JOSHI
SRI.SABU P.JOSEPH
SRI.C.N.SREEKUMAR
SMT.MANJU PAUL
SRI.ANIL PRASAD
SMT.G.ASHWINI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN COME UP
FOR FINAL HEARING ON 28.5.2025, THE COURT ON 02.06.2025,
ALONG WITH CO.141/2021 DELIVERED THE FOLLOWING:
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M.A.C.A.No.382 of 2020 and
Cross Objection No.141 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 2ND DAY OF JUNE 2025 / 12TH JYAISHTA, 1947
CO NO. 141 OF 2021
CROSS OBJECTION AGAINST APPEAL AND FOR ENHANCEMENT OF
COMPENSATION FROM THE AWARD DATED 21.8.2018 IN
OP(MV)NO.2223/2016 ON THE FILE OF THE ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM
CROSS OBJECTORS/PETITIONERS/RESPONDENTS 1 & 2/CLAIMANTS:
1 LEENA K.J.
AGED 68 YEARS
D/O.JOSEPH K.J., KOILPARAMBIL HOUSE, NEAR WATER
TANK, CHELLANAM, KANNAMALY, KUMBALANGHY,
ERNAKULAM DISTRICT, PIN - 682 008.
2 GEORGE SEBASTIAN K.J.
AGED 66 YEARS
S/O.JOSEPH K.J., KOILPARAMBIL, NEAR ROSHINI WATER
TANK, KANNAMALY, KUMBALANGHY, ERNAKULAM DISTRICT,
PIN - 682 008.
BY ADV P.M.JOSHI
RESPONDENTS/APPELLANT AND 3RD RESPONDNT/RESPONDENTS :
1 NATIONAL INSURANCE COMPANY LIMITED
THIRD PARTY CELL, AJAY VIHAR, M.G.ROAD,
KOCHI - 682 016, REPRESENTED BY ITS MANAGER,
NATIONAL INSURANCE CO.LTD., ERNAKULAM.
2 JIBIN JOSEPH P.G.
S/O.GEORGE P.L., PUTHENVELIYIL HOUSE, NORTH
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CHELLANAM P.O., CHELLANAM VILLAGE, ERNAKULAM
DISTRICT, KOCHI - 682 008.
BY ADV SABU P.JOSEPH
THIS CROSS OBJECTION HAVING BEEN COME UP FOR FINAL
HEARING ALONG WITH MACA.382/2020 ON 28.5.2025, THE COURT ON
02.06.2025 DELIVERED THE FOLLOWING:
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M.A.C.A.No.382 of 2020 and
Cross Objection No.141 of 2021
C.S.SUDHA, J.
---------------------------------------------------
M.A.C.A.No.382 of 2020 and Cross Objection No.141 of 2021
--------------------------------------------------------------------------------
Dated this the 2nd day of June, 2025
JUDGMENT
The aforesaid appeal has been filed under Section 173 of the
Motor Vehicles Act, 1988 (the Act) by the 2 nd respondent/insurer in
O.P.(MV) No.2223/2016 on the file of the Additional Motor
Accidents Claims Tribunal, Ernakulam, (the Tribunal), aggrieved by
the amount of compensation granted by Award dated 21/08/2018.
The respondents herein are the claimants and the first respondent
respectively in the petition. In this appeal, the parties and the
documents will be referred to as described in the original petition.
2. According to the claim petitioners, on 19/08/2016 while
deceased Mary Grace was standing on the eastern side of
Chellanam - Thoppumpady road, motorcycle bearing registration
No.KL-43/A-6321 ridden by the first respondent in a rash and
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Cross Objection No.141 of 2021
negligent manner, knocked her down as a result of which she
sustained grievous injuries to which she succumbed on 11/09/2016.
The incident occurred due to the rash and negligent driving of the
first respondent rider of the motorcycle. Hence, a sum of
₹17,00,000/- was claimed as compensation under various heads.
3. The second respondent/insurer filed written statement
admitting the existence of a valid policy. It was contended that as
the accident had not been intimated and the documents of the
vehicle not furnished, the insurer was not liable to indemnify the
insured. It was also contended that negligence was on the part of
the deceased and not on the part of the first respondent.
4. Before the Tribunal, no oral evidence was adduced by
either side. Exts.A1 to A16 were marked on the side of the claim
petitioners. No documentary evidence was produced by the
respondents.
5. The Tribunal on a consideration of the documentary
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evidence and after hearing both sides, found negligence on the part
of the first respondent-rider of the offending vehicle resulting in the
incident and hence awarded an amount of ₹14,33,990/- together
with interest @ 9% per annum from the date of the petition till
realisation along with proportionate costs. Aggrieved by the Award,
the second respondent/insurer has come up in appeal.
6. 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.
7. Heard both sides.
8. The award of compensation by the Tribunal under the
following heads are challenged:
Notional income
The claimants, the siblings of the deceased, contended that the
deceased, a 59-year-old unmarried lady, a tailor, was earning
₹10,000/- per month. Though no evidence was adduced, this claim
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was accepted by the Tribunal. It is submitted by the learned counsel
for the claimants who has also filed a cross objection, that going by
the dictum in Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Ltd., (2011) 13 SCC 236, the
notional income is liable to be fixed @ ₹10,500/- per month. This
submission is opposed by the learned counsel for the second
respondent/insurer who submitted that whatever amount was
claimed by the claimants has been granted and hence there is no
ground for any further enhancement.
As rightly pointed out by the learned counsel for the second
respondent/insurer, an amount of ₹10,000/- was claimed as monthly
income of the deceased, which even in the absence of any evidence
was accepted by the Tribunal. Therefore, I do not find any reasons
to interfere in the amount fixed by the Tribunal.
Loss of love and affection
An amount of ₹1,00,000/- was claimed under this head. The
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Tribunal granted an amount of ₹80,000/-, that is, ₹40,000/- each for
the claimants, two in number. The learned counsel for the second
respondent/insurer relying on the dictums in Reliance General
Insurance Co. Ltd. v. Ambika Kumari, 2020(3) KLT 450 and
United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder
Kaur, AIR 2020 SC 3076 : 2020(3) KHC 760 (SC) submitted that
the claim petitioners being the siblings of the deceased are not
entitled to be granted any amount under this head. Per contra, the
learned counsel for the claim petitioners relying on the dictum in
Chaithanaya v. New India General Insurance Co. Ltd, 2025(3)
KHC 21 submitted that though they are not entitled to any
compensation under the head 'loss of consortium', they are certainly
entitled to compensation for loss of 'love and affection', particularly
when no amount has been awarded by the Tribunal under the head
'loss of consortium'.
Here it would be apposite to refer to an unreported decision
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dated 06/12/2023 of a learned Single Judge of this Court in
M.A.C.A.No.1502/2015. An identical contention was raised by the
insurance company in the said case also. The learned Single Judge
referring to the dictums in National Insurance Company Ltd. v.
Pranay Sethi, (2017) 16 SCC 680 and Satinder Kaur (Supra)
held that the purpose of assessment is to ensure just compensation
to the victims of the accident. In Satinder Kaur (Supra) it has only
been held that when loss of consortium is awarded, no separate
compensation is to be awarded under the head of 'loss of love and
affection'. As the claimants are siblings, the question of 'loss of
consortium' does not arise. But that would not disentitle them, who
are admittedly close relatives of the deceased, to claim
compensation under the head 'loss of love and affection'. It was
found that though the deceased was residing alone, the claim
petitioners being her close relatives, there was every possibility of a
strong relationship between them and hence proceeded to award
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compensation for 'loss of love and affection'. I do not find any
reason(s) to disagree with the conclusions of the learned Single
Judge. Hence, I find no ground for interference into the impugned
Award on the said aspect.
Compensation for pain and suffering
It was pointed out by the learned counsel for the second
respondent/insurer that though an amount of ₹1,00,000/- was
claimed under this head, the Tribunal granted an amount of
₹2,00,000/- which is quite excessive. Relying on the dictum in Jyni
v. Raphel P.T., 2016(2) KHC 870, it was submitted that an amount
of only ₹15,000/- could have been granted by the Tribunal. This
submission is not opposed by the learned counsel for the claim
petitioners.
In Jyni (Supra) it has been held that in cases of instantaneous
death as well as in cases where the deceased was unconscious
between the time of accident and the time of his death, some
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notional amount is liable to be paid under the head 'pain and
suffering'. An amount slightly higher is to be awarded if death was
not instantaneous. A conventional amount in the range of ₹5,000/-
to ₹15,000/- could be awarded under the head 'pain and suffering' in
such cases. In the light of the aforesaid dictum, I find that an
amount of ₹15,000/- can be awarded under this head.
Deductions to be made towards 'personal living expenses' of the
deceased
The deceased aged 59 years was admittedly unmarried. The
claimants are her siblings. In the light of the dictum in Pranay
Sethi (Supra), 50% of the established income of the deceased is
liable to be deducted as personal living expenses. The addition of
10% by the Tribunal to the established income of the deceased
while assessing 'future prospects' is not disputed. That being so, the
claimants would be entitled to get an amount of ₹5,94,000/-
(10,000 + 10% of 10,000 = 11,000 - 50% = 5,500 x 12 x 9 =
5,94,000/-).
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9. The impugned Award is modified to the following
extent:
Sl. Head of claim Amount Amount Modified in appeal
No. claimed (₹) Awarded by (₹)
Tribunal (₹)
1. Loss of 1,00,000/- Nil Nil
companionship (No modification)
2. Loss of estate 1,00,000/- 15,000/- 15,000/-
(No modification)
3. Transport to 40,000/- 5,000/- 5,000/-
hospital (No modification)
4 Damage to 10,000/- 2,000/- 2,000/-
clothing and article (No modification)
5. Bystander Nil 15,400/- 15,400/-
expenses (No modification)
6. Treatment 5,00,000/- 4,53,590/- 4,53,590/-
expenses (No modification)
7 Loss of love and 1,00,000/- 80,000/- 80,000/-
affection (40,000 x 2) (No modification)
8 Funeral expenses 45,000/- 15,000/- 15,000/-
(No modification)
9 Compensation for 1,00,000/- 2,00,000/- 15,000/-
pain and suffering
10 Compensation for 1,00,000/- 6,48,000/- 5,94,000/-
loss of dependency
Total ₹19,95,000/- ₹14,33,990/- 11,94,990/-
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In the result, the appeal is allowed in part by deducting the
compensation awarded by an amount of ₹2,39,000/- (that is,
₹14,33,990/- granted by the Tribunal - ₹11,94,990/- granted in
appeal).
The cross objection is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S. SUDHA
JUDGE
ami/
