Kerala High Court

Alphonsa vs The New India Assurance Company Ltd on 13 June, 2025

M.A.C.A.No.992 of 2020
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              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MRS. JUSTICE C.S. SUDHA

    FRIDAY, THE 13TH DAY OF JUNE 2025 / 23RD JYAISHTA, 1947

                         MACA NO. 992 OF 2020

          AGAINST THE AWARD DATED 09.08.2019 IN OPMV NO.1827 OF

2016 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR.

APPELLANTS/PETITIONERS:

      1       ALPHONSA,
              AGED 70 YEARS,
              W/O LATE DEVASSIKUTTY, CHIRACKAL HOUSE,
              KIDANGOOR P.O.-683 572.

      2       JOSE,
              AGED 42 YEARS,
              S/O LATE DEVASSIKUTTY, CHIRACKAL HOUSE,
              KIDANGOOR P.O.-683 572.

      3       JINCY,
              AGED 37 YEARS,
              W/O PRAVEEN JOSE, PANANCHIKKAL HOUSE,
              AMBEDKAR ROAD, VENNALA P.O.-682 028.


              BY ADV SHRI.A.N.SANTHOSH


RESPONDENT/RESPONDENT:

              THE NEW INDIA ASSURANCE COMPANY LTD.,
              KARUVIKATTU BUILDINGS, MANIMALA ROAD,
              KARUKACHAL-686 540, REPRESENTED BY ITS MANAGER.


              BY ADV SHRI.RENIL ANTO KANDAMKULATHY
       THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 13.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 M.A.C.A.No.992 of 2020
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                                   C.S.SUDHA, J.
                -----------------------------------------------------------
                              M.A.C.A.No.992 of 2020
                -----------------------------------------------------------
                       Dated this the 13th day of June 2025

                                 JUDGMENT

This appeal under Section 173 of the Motor Vehicles Act,

1988 (the Act) has been filed by the claim petitioners in O.P.(MV)

No.1827/2016 on the file of the Motor Accidents Claims Tribunal,

Perumbavoor, (the Tribunal), aggrieved by the amount of

compensation granted by Award dated 09/08/2019. 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. According to the claim petitioners, on

15/06/2016 at about 11:45 a.m., while the deceased was riding

his scooter bearing registration No.KL-63/432, a pick-up van

bearing registration no.KL-33/G-1535 driven by the second

respondent in a rash and negligent manner knocked him down as a

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result of which he sustained grievous injuries to which he

succumbed. An amount of ₹30,00,000/- was claimed as

compensation under various heads.

3. The second respondent/driver remained ex parte.

4. The first respondent/owner filed written

statement admitting the ownership of the offending vehicle but

denying the rash and negligent driving of the second

respondent/driver. It was also contended that the second

respondent/driver had a valid driving license at the time of the

incident.

5. The third respondent/insurer filed written

statement admitting the policy, but denying negligence on the part

of the second respondent/driver. The amount of compensation

claimed under various heads were disputed.

6. Before the Tribunal, no oral evidence was

adduced by either side. Exts.A17 to A26 were marked on the side

of the claim petitioners. No documentary evidence was adduced by

the respondents.

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7. The Tribunal on consideration of the

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 ₹8,21,926/- together with interest @ 8% per annum

from the date of the petition till the date of realisation with

proportionate costs. Aggrieved by the Award, the claim petitioners

have come up in appeal.

8. 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.

9. Heard both sides.

10. 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 69 year old agriculturist was

earning an amount of ₹30,000/- per month. However, the Tribunal

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fixed the notional income at ₹9,000/- only, which is quite low.

In the light of the dicutm in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Co. Ltd., (2011)

13 SCC 236, the notional income of the claim petitioner can be

fixed at ₹10,500/- per month.

Loss of consortium

Admittedly, claim petitioners are the wife and children of

the deceased. Going by 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. 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, claim petitioners 2 and 3, who are the

children of the deceased, are also entitled to compensation towards

loss of parental consortium of ₹40,000/- each. 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%.

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The claim petitioners 2 and 3 were not granted consortium by the

Tribunal. Hence, they are entitled to two enhancements at the rate

of 10% every three years. Therefore, claim petitioners 2 and 3 will

be entitled to ₹48,400/- each. (₹40,000 + 10% = ₹44,000; ₹44,000

+ 10% = ₹ 48,400/-).

Love and affection

Now it is well settled that when the compensation towards

loss of consortium is granted, compensation towards love and

affection cannot be granted. Therefore, compensation towards love

and affection shall stand set aside.

Pain and suffering

An amount of ₹5,00,000/- was claimed. The Tribunal

granted an amount of ₹25,000/-. The deceased died after a period

of 5 months. Hence I find that an amount of ₹50,000/- would be

just and reasonable.

Deduction towards personal and living expenses

The Tribunal taking into account the fact that the children

of the deceased, that is, claim petitioners 2 and 3 are adults and not

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dependents of the deceased, deducted 1/2 of the income of the

deceased towards personal and living expenses. In the light of the

dictum in Babita Singh v. New India Assurance Co. Ltd., 2024

ACJ 223, only 1/3rd is liable to be deducted from the income of the

deceased.

11. 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/- ₹2,70,000/- ₹4,20,000/-

dependency [₹10,500/-

x12x5x2/3] 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              ₹2,00,000/-      ₹15,000/-       ₹15,000/-
        expenses                                           (No modification)
    5   Love and             ₹10,00,000/-     ₹50,000/-        Set aside
        affection
    6   Nursing and         ₹10,00,000/-      ₹28,500/-      ₹67,500/-
        attendance                            ₹39,000/-    (No modification)
    7   Pain and             ₹5,00,000/-      ₹25,000/-        ₹50,000/-
        suffering
    8     Loss of estate     ₹15,00,000/-     ₹15,000/-        ₹15,000/-
    9   General              ₹5,00,000/-         Nil             Nil
        expenses                                           (No modification)




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   10 Future                ₹10,00,000/-       Nil               Nil
      prospects                                            (No modification)
   11 Extra                     Nil         ₹28,500/-         ₹28,500/-
      nourishment                                          (No modification)
   12 Medical              ₹10,00,000/-    ₹2,99,926/-       ₹2,99,926/-
      expenses                                             (No modification)
   13 Loss of spousal      ₹10,00,000/-    ₹40,000/-          ₹40,000/-
      consortium

        Loss of parental
        consortium to           --             --             ₹96,800/-
        claim
        petitioners 2 &                                     (₹48,400/-x2)

          Total            ₹10,300,000/-   ₹8,21,926/-       ₹10,43,726/-
                             Limited to
                            ₹30,00,000/-

In the result, the appeal is allowed by enhancing the

compensation by a further amount of ₹2,21,800/- (total

compensation ₹10,43,726/-, that is, ₹8,21,926/- granted by the

Tribunal + ₹2,21,800/- 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 177 days delay in filing the appeal) and

proportionate costs. The third respondent/insurer is directed to

deposit the compensation with interest and costs before the

Tribunal within a period of 60 days from the date of receipt of a

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copy of the judgment. On deposit of the compensation amount,

the Tribunal shall disburse the amount to the claim petitioner at the