Kerala High Court
Shanmughan vs Libin Baby on 10 June, 2025
2025:KER:40490
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 10TH DAY OF JUNE 2025 / 20TH JYAISHTA, 1947
MACA NO. 447 OF 2020
AGAINST THE AWARD DATED 24.05.2019 IN OPMV NO.942 OF
2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM
NAME & ADDRESS OF THE APPELLANTS/PETITIONERS:
1 SHANMUGHAN
AGED 57 YEARS, S/O.PAINKLY,
PALLITHAZHATHU HOUSE, AMBADYMALA.P.O,
CHOTTANIKKARA, KURIKKAD VILLAGE, PIN-682312
2 RADHA
AGED 54 YEARS, W/O.SHANMUGHAN,
PALLITHAZHATHU HOUSE, AMBADYMALA.P.O,
CHOTTANIKKARA, KURIKKAD VILLAGE, PIN-682312
SHRI.M.M.SAIDU MUHAMMED
SRI.BINU VARGHESE (ERNAKULAM)
NAME & ADDRESS OF THE RESPONDENTS:
1 LIBIN BABY
S/O.BABY VARGHESE, ARAMBAKKAL HOUSE,
CHOTTANIKKARA.P.O., KANAYANNOOR,
CHOTTANIKKARA, PIN-682312
2 VISHNURAJ
AGED 21 YEARS, S/O.SIVARAJAN NAIR,
CHAYAPARAMBU HOUSE, VT LANE, SWANTHANAM,
PALLURUTHY.P.O, KOCHI, PIN-682006
3 THE NEW INDIA ASSURANCE COMPANY LTD.
REGIONAL OFFICE, 36/707, KANDAMKULATHY TOWERS,
OPPOSITE COLLEGE GROUND, M.G.ROAD, ERNAKULAM,
KOCHI, PIN - 682011
ADV.LAL K.JOSEPH, SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 10.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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MACA NO. 447 OF 2020
2
C.S.SUDHA, J.
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M.A.C.A. No.447 of 2020
----------------------------------------------------
Dated this the 10th day of June 2025
JUDGMENT
This appeal has been filed under Section 173 of the Motor
Vehicles Act, 1988 (the Act) by the claim petitioners in O.P.(MV)
No.942/2017 on the file of the Motor Accidents Claims Tribunal,
Ernakulam, (the Tribunal), aggrieved by the amount of
compensation granted by Award dated 24/05/2019. The
respondents herein are respondents 1 to 3 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
19/01/2017 at 08:00 p.m. while the deceased was pillion riding on
motorcycle bearing registration no.KL39G3169 ridden by the
second respondent through Kochi-Dhanushkodi NH 49 road and
when he reached near the place by name Kolencherry, the
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motorcycle overturned due to the rash and negligent riding of the
second respondent/rider, as a result of which the deceased fell down
and sustained multiple injuries. Though the deceased was
immediately taken to the hospital, he succumbed to the injuries
sustained. A sum of ₹30,00,000/- was claimed as compensation
under various heads.
3. Though the first respondent/owner and the second
respondent/rider filed vakalath, they did not file any written
statement.
4. The third respondent/insurer filed written
statement admitting the existence of a valid policy in respect of the
offending vehicle. The age, occupation and income of the deceased
were disputed. It was also contended that the compensation claimed
was quite excessive.
5. Before the Tribunal, no oral evidence was
adduced by either side. Exts.A1 to A12 were marked on the side of
the claim petitioners. No documentary evidence was adduced by the
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third respondent/insurer.
6. The Tribunal on a consideration of the
documentary evidence and after hearing both sides, found
negligence on the part of the second respondent/rider of the
motorcycle resulting in the incident and hence awarded an amount
of ₹19,25,900/- together with interest @ 9% per annum from the
date of the petition till realisation along with proportionate costs.
Aggrieved by the Award, 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
It is submitted by the learned counsel for the claim
petitioners that the deceased, a welder, a skilled worker, was
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earning ₹20,000/- per month. However, the Tribunal ignoring
Ext.A8 certificate granted ₹12,000/- only as notional income which
is against the minimum wages fixed by the Government as per
notification G.O.(P).No.56/2017/Fin. dated 28/04/2017. As per the
said notification, the minimum wages of a skilled worker has been
fixed as ₹17,325/-. Therefore, the notional income needs to be
revised, goes the argument. Per contra, it is submitted by the third
respondent/insurer that the Government Order referred to has been
issued by the Finance Ministry and the correct Government Order
that needs to be applied is G.O.(P).No.101/2021/LBR dated
22/12/2021. He also points out that, as per the said notification, the
minimum wages of a welder, a skilled worker, has been fixed as
₹13,780/- which will take effect only from 22/12/2021. On the
other hand, the incident in this case took place on 19/01/2017 and
therefore the amount of ₹12,000/- fixed is just and reasonable, goes
the argument.
In the petition, the allegation is that the deceased was a
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welder. In order to substantiate the same, the claim petitioners have
produced Ext.A8 certificate which shows that the deceased had
completed Diploma in Logistics and Supply Chain Management in
the year 2016. This certificate does not substantiate the allegation
that he was a welder. Ext.A11 certificate shows that he has not
completed B.Com. That being the position, the allegation that the
deceased was a skilled worker at the time of the incident has not
been established. However, taking into account Ext.A8, I find that
his notional income can be fixed at ₹13,780/- based on the
notification dated 22/12/2021.
Damages to cloth and articles
It is pointed out that though an amount of ₹3,000/- was
claimed under this head, the Tribunal has not granted any amount.
Hence, I find that an amount of ₹3,000/- under the said head can be
granted.
Loss of consortium
Going by the dictums in Magma General Insurance Co.
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Ltd. v. Nanu Ram Alias Chuhru Ram, (2018) 18 SCC 130: 2018
KHC 6697, United India Insurance Co. Ltd. vs 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 claim petitioners, who are the parents of the
deceased, are entitled to compensation towards filial consortium of
₹40,000/- each. However, no amount was granted. On the other
hand, compensation for loss of love and affection has been granted.
Hence, in the light of the aforesaid dictums, compensation that was
awarded towards loss of love and affection is set aside and filial
consortium of ₹40,000/- each is granted to the claim petitioners. As
per the dictum in National Insurance Company Limited v.
Pranay Sethi, 2017 (5) KHC 350: (2017) 16 SCC 680,
pronounced on 31/10/2017, the consortium amount has to be
enhanced every three years by 10%. Hence, the claim petitioners
are entitled to two enhancements at the rate of 10% every three
years, that is, on 31/10/2020 and 31/10/2023. Therefore, the claim
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petitioners will be entitled to ₹48,400/- each. (31/07/2020 -
₹40,000 + 10% = ₹44,000; 31/07/2023 - ₹44,000 + 10% = ₹
48,400/-).
10. The impugned Award is modified to the following
extent:
Sl. Head of claim Amount Amount Modified in
No. claimed Awarded by appeal
(in ₹) Tribunal(in ₹) (in ₹)
1. Transport to 5,000/- 5,000/- 5,000/-
hospital and (No
back to home Modification)
2. Medical 20,000/- 11,500/- 11,500/-
expenses (No
Modification)
3. Funeral 30,000/- 15,000/- 15,000/-
expenses (No
Modification)
4. Damages to 3,000/- Nil 3,000/-
cloth and
articles
5. Compensation 50,000/- 15,000/- 15,000/-
for pain and (No
suffering Modification)
6. Compensation 1,50,000/- 50,000/- Set aside
for loss of love
and affection
7. Loss of estate 50,000/- 15,000/- 15,000/-
(No
Modification)
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8. Compensation 32,40,000/- 18,14,400/- 20,83,536/-
for loss of [(12,000+40%) [(13,780+40%)
dependency x 1/2 x 12 x 18] x 1/2 x 12 x 18]
9. Loss of filial 96,800/- Nil 96,800/-
consortium (48,400 x 2)
Total 35,48,000/- 19,25,900/- 22,44,836/-
limited to
30,00,000/-
In the result, the appeal is allowed by enhancing the
compensation by a further amount of ₹3,18,936/- (total
compensation ₹22,44,836/- that is, ₹19,25,900/- granted by the
Tribunal + ₹3,18,936/- granted in appeal) with interest at the rate
of 8% per annum from the date of petition till date of realization
and proportionate costs. The third respondent/insurer is directed to
deposit the aforesaid amount before the Tribunal 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.
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Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
NP
