Kerala High Court
Sreeja.K.V vs The New India Assurance Company Ltd on 5 June, 2025
M.A.C.A.No.307 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
MACA NO. 307 OF 2020
AGAINST THE AWARD DATED 26/03/2019 IN OPMV NO.754 OF
2016 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
VADAKARA
APPELLANTS/PETITIONERS:
1 SREEJA.K.V
AGED 45 YEARS,
W/O. LATE JAYAN, 45 YEARS,
PARAMMAL HOUSE, MUCHUKUNNU P.O,
VIYYUR, CALICUT 673 307
2 AKSHAYRAJ P,
AGED 23 YEARS,
S/O. LATE JAYAN, PARAMMAL HOUSE,
MUCHUKUNNU P.O, KODAKKATTUNURI,
VIYYUR, MOODADI, KOZHIKODE 673 307.
3 ARSHA P,
AGED 20 YEARS
D/O. LATE JAYAN, PARAMMAL HOUSE,
MUCHUKUNNU P.O, KODAKKATTUNURI,
VIYYUR, MOODADI, KOZHIKODE 673 307.
4 JANAKI,
AGED 77 YEARS,
W/O. KUNHIKANARAN, PARAMMAL HOUSE,
KODAKKATTUNURI, MUCHUKUNNU P.O,
KEEZHARIYOOR, KOYILANDY 673 307
BY ADV SHRI.AVM.SALAHUDIN
M.A.C.A.No.307 of 2020
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RESPONDENT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE COMPANY LTD
MAHESWARI BUILDING, MAIN ROAD,
KOYILANDY 673 305,
REPRESENTED BY BRANCH MANAGER.
BY ADV SMT.A.SREEKALA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 05.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.307 of 2020
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C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.No.307 of 2020
----------------------------------------------------
Dated this the 5th day of June 2025
JUDGMENT
This appeal has been filed under Section 173 of the
Motor Vehicles Act, 1988 (the Act) by the additional claim
petitioners 2 to 5 in O.P.(MV) No.754/2016 on the file of the
Motor Accidents Claims Tribunal, Vatakara (the Tribunal),
aggrieved by the amount of compensation granted by Award
dated 26/03/2019. The sole respondent herein is the third
respondent in the petition. In this appeal, the parties and the
documents will be referred to as described in the original petition.
2. The additional claim petitioners are the wife,
children and mother of the original claim petitioner, who died
during the pendency of the proceedings before the Tribunal.
According to the claim petitioners, on 12/05/2016 at about 08:20
p.m., while deceased Jayan, was pillion riding on motorcycle
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bearing Reg.No.KL-56-6855 from Muchukunnu to Koyilandy,
when he reached the place by name, Illath Thazha, motorcycle
bearing registration no.KL-56-H-3949 ridden by the second
respondent in a rash and negligent manner knocked him down
causing grievous injuries, to which he succumbed on 27/01/2017.
3. The first respondent owner and the second
respondent rider remained ex parte.
4. The third respondent/insurer filed written
statement disputing negligence of the second respondent. The
age, avocation, income etc., of the deceased were disputed. The
amount of compensation claimed was contended to be excessive.
5. Before the Tribunal, no oral evidence was
adduced by either side. Exts.A1 to A10 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
negligence on the part of the second respondent-rider of the
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offending vehicle resulting in the incident and hence awarded an
amount of ₹23,14,900/- together with interest @ 8% per annum
from the date of the petition till realisation along with
proportionate costs. Aggrieved by the Award, the claim
petitioners have 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 claim petitioners-
Notional income
The allegation in the original petition is that the
deceased, a 47 year old man, working as a Salesman in the Kerala
State Co-operative Consumer Federation Ltd. was earning an
amount of ₹11,000/- per month. To substantiate the same,
Ext.A7 salary certificate was produced. Relying on the same, the
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Tribunal fixed the notional income at ₹8,628/-. According to the
learned counsel for the claim petitioner, this amount is too low
and that going by the dictum in Ramachandrappa v. Manager,
Royal Sundaram Alliance Insurance Company Ltd., (2011) 13
SCC 236, the notional income of a coolie was liable to be fixed at
₹10,500/- and hence the notional income in the case on hand also
needs to be enhanced. In support of the argument, reference is
made to the judgment dated 13/11/2024 of a learned Single Judge
of this Court in M.A.C.A.No.2441/2014 (Nias v. Mohana). Per
contra, it is submitted by the learned counsel for the third
respondent/insurer that the amount fixed is reasonable and that no
enhancement is required.
In the decision relied on by the claimants, the
injured/claimant therein was getting a monthly income of
₹4,500/-. However, no oral or documentary evidence was
produced to substantiate the same. Hence the Tribunal fixed the
notional income as ₹3,000/-. In appeal, this Court relying on the
dictums in Ramachandrappa (Supra) and Syed Sadiq v.
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Divisional Manager, United India Insurance Company Ltd.,
(2014) 2 SCC 735 held that even in the absence of any evidence,
the monthly income of an ordinary worker needs to be fixed after
considering the fair wages at the relevant time and proceeded to
fix the notional income as ₹4,500/-.
Under the provisions of the Act there is no restriction that
compensation could be awarded only up to the amount claimed by
the claimant. In an appropriate case where from the evidence
brought on record if Tribunal/court considers that claimant is
entitled to get more compensation than claimed, the tribunal may
pass such award. Only embargo is - it should be 'just'
compensation, that is to say, it should be neither arbitrary, fanciful
nor unjustifiable from the evidence. Therefore, Section 168
empowers the claims tribunal to "make an award determining the
amount of compensation which appears to it to be just." ( Nagappa
v. Gurudayal Singh: 2003 KHC 15: 2003 (2) SCC 274 ).
In the case on hand, the allegation regarding monthly
income stands proved by Ext.A7 salary certificate. The claim
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petitioners have no case that Ext.A7 is wrong/incorrect.
Compensation signifies that which is given in recompense, an
equivalent rendered. Pecuniary damages are those which the
victim has actually incurred and which are being capable of being
calculated in terms of money. For assessing the same no amount
of guess work is required as in the case of non pecuniary damages.
In these circumstances, I find no infirmity committed by the
Tribunal in relying on Ext.A7 salary certificate and fixing the
notional income of the deceased.
Pain and sufferings
Admittedly, the incident took place on 12/05/2016. The
records reveal that the deceased was hospitalised for a period of
110 days. An amount of ₹2 lakhs was claimed. The Tribunal
granted an amount of ₹25,000/-. As he was hospitalised for nearly
110 days, I find that an amount of ₹1,00,000/- would be just and
reasonable.
Loss of consortium
Admittedly, the additional second claim petitioner is the
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wife of the deceased ; the additional claim petitioners 3 and 4 his
children and the additional fifth claim petitioner, the mother of
the deceased. 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, compensation that has
been awarded by the Tribunal for 'loss of love and affection' as
well as loss of consortium is apparently incorrect. Therefore,
compensation awarded for loss of love and affection is liable to
be set aside. However, claimants are entitled to loss of
consortium at the rate of ₹40,000/- each. Additional claim
petitioners 3 and 4 are entitled to compensation towards 'loss of
parental consortium' and the additional fifth petitioner, to filial
consortium at the rate of ₹40,000/- each. In the light of the
dictum in National Insurance Company Ltd. v. Pranay Sethi,
(2017) 16 SCC 680, they are also entitled to enhancement at the
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rate of 10% every three years. Therefore the additional third,
fourth and fifth petitioners would be entitled to ₹1,45,200/-.
( ₹40,000/- + (40,000 x 10%) = ₹44,000/- ; ₹44,000/- +
(₹44,000/- x 10%) = ₹48,400/- ; ₹48,400 x 3 = ₹1,45,200/-).
10. The impugned Award is modified to the
following extent:
Sl. Head of claim Amount Amount Modified in
No. claimed Awarded by appeal
Tribunal
1. Loss of ₹25,00,000/- ₹13,12,319/- ₹13,12,319/-
dependency (No modification)
2. Transport to ₹50,000/- ₹15,000/- ₹15,000/-
hospital (No modification)
3. Damage to ₹5,000/- ₹1,000/- ₹1,000/-
clothings (No modification)
4. Pain and ₹2,00,000/- ₹25,000/- ₹1,00,000/-
sufferings
5. Loss of love ₹5,00,000/- ₹50,000/- Set aside.
and affection
6. Funeral ₹50,000/- ₹15,000/- ₹15,000/-
Expenses (No modification)
7. Loss of ₹1,00,000/- ₹40,000/- ₹40,000/-
consortium to (No modification)
2nd claim
petitioner -
Loss of ₹1,45,200/-
consortium to - - (₹48,400 x 3)
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claim
petitioners 3
to 5
8. Loss of estate ₹5,00,000/- ₹15,000/- ₹15,000/-
(No modification)
9. Loss of ₹50,000/- Nil Nil
amenities of (No modification)
life
10. Bystander's ₹5,00,000/- ₹99,000/- ₹99,000/-
expenses (No modification)
11. Medical Bill ₹10,00,000/- ₹7,42,517/- ₹7,42,517/-
(No modification)
12. Loss of ₹2,00,000/- Nil Nil
earning (No modification)
Total ₹57,05,000/- ₹23,14,836/- ₹24,85,036/-
Rounded of to
₹50,00,000/- ₹23,14,900/-
In the result, the appeal is allowed by enhancing the
compensation by a further amount of ₹1,70,136/- (total
compensation ₹24,85,036/- that is, ₹23,14,900/- granted by the
Tribunal +₹1,70,136/- granted in appeal) with interest at the rate
of 8% per annum from the date of petition till date of realization
(excluding the period of 169 days delay in filing the appeal) and
proportionate costs. The third respondent/insurance company is
directed to deposit the aforesaid amount before the Tribunal
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within a period of 60 days from the date of receipt of a copy of
the judgment. On deposit of the amount, the Tribunal shall
disburse the amount to the claim petitioner at the earliest in
accordance with law after making deductions, if any.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
