Kerala High Court
Mallika vs The New India Assurance Company Ltd on 16 June, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 16TH DAY OF JUNE 2025 / 26TH JYAISHTA, 1947
MACA NO. 1036 OF 2020
AGAINST THE AWARD DATED 01.10.2019 IN OPMV NO.1699 OF
2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR
APPELLANTS/PETITIONERS:
1 MALLIKA
AGED 60 YEARS
W/O LATE BABU, OLIYATH HOUSE, KURUMASSERY P.O.
2 SMITHA O.B.
AGED 40 YEARS
D/O BABU, OLIYATH HOUSE, KURUMASSERY P.O.
3 BINIEESH,
AGED 40 YEARS
S/O BABU, OLIYATH HOUSE, KURUMASSERY P.O.
BY ADV SHRI.A.N.SANTHOSH
RESPONDENT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE COMPANY LTD
2ND FLOOR, JMJ COMPLEX, MAIN ROAD,
OTTAPALAM-679 101, REPRESENTED BY ITS MANAGER
BY ADV SRI.SEBASTIAN VARGHESE(K/141/2000)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 16.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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MACA NO. 1036 OF 2020
2
C.S.SUDHA, J.
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M.A.C.A. No.1036 of 2020
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Dated this the 16th 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
4 in O.P.(MV) No.1699/2016 on the file of the Motor Accidents
Claims Tribunal, Perumbavoor, (the Tribunal), aggrieved by the
amount of compensation granted by Award dated 01/10/2019. The
sole respondent herein is the third respondent/insurer 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
20/08/2016 at 03:45 p.m. while the deceased was pillion riding on
motorcycle bearing registration no.KL41B7041 through the
Angamaly-Chalakudy NH road and when he reached the place by
name Kothakulangara, innova car bearing registration
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no.KL7BL456 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. A sum of
₹30,00,000/- was claimed as compensation under various heads.
3. The first respondent/owner remained ex parte.
4. The second respondent/driver filed written
statement denying the negligence on his part. It was contended that
the accident occurred due to the negligence of the rider of the
motorcycle.
5. The third respondent/insurer filed written
statement admitting the existence of a valid policy in respect of the
offending vehicle but denied negligence on the part of the second
respondent/driver.
6. Before the Tribunal, no oral evidence was
adduced by either side. Exts.A1 to A18 and Ext.C1 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 ₹21,15,581/- together
with interest @ 8% 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.
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 63 year old man, was a business
man earning ₹40,000/- per month. However, the Tribunal fixed the
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notional income at ₹9,000/- which is quite low even going by the
dictum in Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Co. Ltd, (2011) 13 SCC 236.
In Ext.A2 FIS, the deceased is stated to be a business man.
This fact is not seen disputed before the Tribunal. Therefore, in the
facts and circumstances of the case, I find that an amount of
₹13,000/- can be fixed as the notional income of the deceased.
Loss of consortium & loss of love and affection
Admittedly, the additional 2nd claim petitioner is the wife
and the additional claim petitioners 3 and 4 are the 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, the additional claim petitioners 3 and 4 are entitled to
compensation towards loss of parental consortium of ₹40,000/-
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each. It is well settled in the light of the aforesaid dictums that
when compensation towards loss of consortium is granted,
compensation towards loss of love and affection cannot be granted.
Hence, compensation that has been awarded towards loss of love
and affection is set aside and parental consortium of ₹40,000/- each
is granted to additional claim petitioners 3 and 4. 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 also entitled to two enhancements
at the rate of 10% every three years. Therefore, the claim
petitioners will be entitled to ₹ 48,400/- each. (₹ 40,000+ 10% =
₹44,000; ₹44,000 + 10% = ₹ 48,400/-).
Pain and sufferings
It is pointed out that though an amount of ₹10,00,000/-
was claimed under this head, the Tribunal has granted an amount of
₹1,10,000/- only. The incident occured on 20/08/2016 and the
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deceased passed away on 19/07/2019, which is three years after the
incident. The materials on record show that the claim petitioner was
completely bedridden and his disability was assessed as 100%. That
being the position, I find that an amount of ₹2,00,000/- under this
head would be just and reasonable.
Loss of amenities and enjoyment in life
It is pointed out that though an amount of ₹20,00,000/-
was claimed under this head, the Tribunal has granted an amount of
₹60,000/-, which is stated to be on the lower side. The materials on
record show that the claim petitioner was completely bedridden for
a period of three years. The injuries that he sustained were:
• fracture of skull bone at left side of head
• fracture of left cheek bone
• intracranial bleeding
• undisplaced fracture of left parietal bone
• fracture of lateral wall of left maxilla
• subdural and subarachnoid haemorrhage in the left parietal
and occipital region
• fracture left collar bone
• fracture five ribs on left side and one rib on right side
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• fracture surgical neck of humerus
• fracture of 5th toe
• fracture of lower end of tibia and lateral malleolus
In the light of the injuries sustained by the claim petitioner,
I find that an amount of ₹2,00,000/- under this head would be just
and reasonable.
Extra nourishment
The Tribunal has granted extra nourishment for a period of
88 days at the rate of ₹500/- per day. The materials on record show
that the claim petitioner was hospitalized for a period of 88 days
and thereafter till his death, he was completely bedridden. That
being the position, I find that he is entitled to an amount of
₹2,40,000/- (250 x 960 days) in addition to the amount that has
already been granted.
Deduction towards personal expenses
Admittedly, the additional 2nd claim petitioner is the wife
and additional claim petitioners 3 and 4 are the children of the
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deceased. In the light of the dictum in Babita Singh v. New India
Assurance Co. Ltd., 2024 ACJ 223, the amount that is liable to be
deducted towards personal expenses is 1/3rd of the notional income
of the deceased. Hence, to the said effect also the Award shall stand
amended.
11. 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. Loss of 25,00,000/- Nil Nil
earning (No Modification)
2. Future loss of 5,00,000/- Nil Nil
earning (No Modification)
3. Loss of 25,00,000/- 3,78,000/- 7,28,000/-
dependency
(9,000 x 12 x (13,000 x 12 x 7 x
7 x 1/2) 2/3)
4. Expenses for 5,00,000/- 25,000/- 25,000/-
transport (No Modification)
5. Damage to 1,00,000/- 1,000/- 1,000/-
clothes (No Modification)
6. Funeral 1,00,000/- 15,000/- 15,000/-
expenses (No Modification)
7. Love and 5,00,000/- 50,000/- Set aside
affection
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8. Loss of 3,00,000/- 40,000/- 40,000/-
spousal (No Modification)
consortium
Loss of Nil 96,800/-
parental (48,400 x 2)
consortium
9. Pain and 10,00,000/- 1,10,000/- 2,00,000/-
suffering
10. Loss of estate 10,00,000/- 15,000/- 15,000/-
(No Modification)
11. Medical 20,00,000/- 10,77,581/- 10,77,581/-
expenses (No Modification)
12. Future 15,00,000/- Nil Nil
prospects (No Modification)
13. Loss of 15,00,000/- Nil Nil
expectation of (No Modification)
life
14 Loss of 20,00,000/- 60,000/- 2,00,000/-
amenities
15. Bystander 15,00,000/- 3,00,000/- 3,00,000/-
expenses (No Modification)
16 Extra 10,00,000/- 44,000/- 2,84,000/-
nourishment (500 x 88)
[(500x88) +
(250x960)]
17 General 5,00,000/- Nil Nil
expenses (No Modification)
Total 25,02,500/- 21,15,581/- 29,82,381/-
is limited to
30,00,000/-
In the result, the appeal is allowed by enhancing the
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compensation by a further amount of ₹8,66,800/- (total
compensation ₹29,82,381/- that is, ₹21,15,581/- granted by the
Tribunal + ₹8,66,800/- 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 129 days delay in filing the appeal) 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.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
NP
