Kerala High Court
National Insurance Company Ltd vs Ayishakutty on 10 March, 2025
M.A.C.A. Nos.3546/2015 & connected : 1 :
case
2025:KER:19933
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 10TH DAY OF MARCH 2025 / 19TH PHALGUNA, 1946
MACA NO. 3546 OF 2015
AGAINST THE AWARD DATED 08.09.2015 IN OP(MV) NO.1753 OF 2014 OF
PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE
APPELLANT:
NATIONAL INSURANCE COMPANY LTD.,
NOOR COMPLEX, NEAR ARAYEDATHUPALAM, MAVOOR ROAD,
KOZHIKODE, REPRESENTED BY ITS MANAGER, MOTOR THIRD PARTY
CLAIMS SECTION, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.
BY ADV. SRI. SEBASTIAN VARGHESE
RESPONDENTS:
1 AYISHAKUTTY, AGED 44 YEARS, W/O.ABOOBACKER, PANNIKKOTTOOR,
KODUVALY, NARIKUNI, KOZHIKODE.673 585.
2 SHABEER, AGED 22 YEARS, S/O.ABOOBACKER, PANNIKKOTTOOR,
KODUVALY, NARIKUNI, KOZHIKODE.673 585.
3 SHAFEER @ MUHAMMED SHAFEER,
AGED 19 YEARS, S/O.ABOOBACKER, P.O.PANNIKOOTTOOR,
KODUVALLY, NARIKUNI, KOZHIKODE. 673 585.
4 JITHIN RAJ
S/O.RAJAN, RESIDING AT 3/359(9/239), KIZHAKKANATHUM MUKALIL,
PAYOOLI ANGADI.P.O., THURAYOOR, KOYILANDY, KOZHIKODE.673 585.
BY ADVS.
R1 TO R3 BY SRI. A.V.M. SALAHUDDEEN
SRI.U.P.BALAKRISHNAN
SMT. A.D.DIVYA(K/1001/2010)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
06.03.2025, ALONG WITH MACA.1268/2019, THE COURT ON 10.03.2025
DELIVERED THE FOLLOWING:
M.A.C.A. Nos.3546/2015 & connected : 2 :
case
2025:KER:19933
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 10TH DAY OF MARCH 2025 / 19TH PHALGUNA, 1946
MACA NO. 1268 OF 2019
AGAINST THE AWARD DATED 08.09.2015 IN OP(MV) NO.1753 OF 2014 OF
PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANTS/PETITIONERS:
1 AYISHAKUTTY, AGED 48 YEARS
W/O ABOOBACKER, RESIDING AT PANNIKKOTTOOR, KODUVALLY,
NARIKUNNI, KOZHIKODE, PIN-673 572.
2 SHABEER, AGED 22 YEARS
S/O ABOOBACKER, RESIDING AT PANNIKKOTTOOR, KODUVALLY,
NARIKUNNI, KOZHIKODE, PIN-673 572.
3 SHAFEER @ MUHAMMED SHAFEER, AGED 19 YEARS
S/O ABOOBACKER, RESIDING AT PANNIKKOTTOOR, KODUVALLY,
NARIKUNNI, KOZHIKODE, PIN-673 572.
BY ADVS.
SABIN BABU
SALAHUDDEEN AVM
SRI.T.H.ARAVIND
A.D.DIVYA(K/1001/2010)
RESPONDENTS/RESPONDENTS:
1 JITHIN RAJ, S/O RAJAN, RESIDING AT 3/359(9/239) KIZHAKKANATHUM
MUKALIL, PAYYOLI ANGADI PO, THUAYOOR, KOYILANDY, KOZHIKODE,
PIN-673 523.
2 NATIONAL INSURANCE CO. LTD., DO NOOR COMPLEX, NEAR SBI
ARAYEDATHUPALAM, MAVOOR ROAD, KOZHIKODE, PIN-673 004.
R2 BY ADV. SRI. SEBASTIAN VARGHESE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
06.03.2025, ALONG WITH MACA.3546/2015, THE COURT ON 10.03.2025 DELIVERED
THE FOLLOWING:
M.A.C.A. Nos.3546/2015 & connected : 3 :
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2025:KER:19933
JOHNSON JOHN, J.
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M.A.C.A Nos. 3546 of 2015 &
1268 of 2019
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Dated this the 10th day of March, 2025.
JUDGMENT
The above appeals are filed by the 2nd respondent insurance
company and the claim petitioners challenging the quantum of
compensation fixed by the Tribunal as per the award dated 08.09.2015.
in O.P.(MV) No. 1753 of 2014 on the file of the Motor Accident Claims
Tribunal, Kozhikode.
2. The claim petitioners are the legal heirs of the deceased Sajeer,
who died in a motor vehicle accident. According to the claim petitioners,
on 12.01.2014, while the deceased was riding a motorcycle, another
motorcycle ridden by the 1st respondent in a rash and negligent manner
caused to hit the motorcycle of the deceased and thereby, he fell down
and sustained serious injuries and subsequently, succumbed to his
injuries while undergoing treatment in Medical College Hospital,
Kozhikode. The 1st respondent is also the owner of the offending vehicle
and the 2nd respondent is the insurer.
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2025:KER:19933
3. Before the Tribunal, Exhibits A1 to A4 were marked from the
side of the petitioners and no evidence adduced from the side of the
respondents.
4. The Tribunal recorded a finding that the accident occurred
because of the negligence on the part of the 1 st respondent and that
respondents 1 and 2 are jointly and severally liable to pay compensation
to the petitioners. The Tribunal awarded a total compensation of
Rs.9,70,000/- to the petitioners.
5. Heard Sri. Sebastian Varghese, the learned counsel for the
appellant insurance company and Sri. A.V.M. Salahuddeen, the learned
counsel for the appellants/claim petitioners.
6. The learned counsel for the appellants/claim petitioners argued
that the deceased was aged 25 years and was earning Rs.15,000/- as a
coolie worker and for the reason that no evidence is adduced to prove
the income, the Tribunal fixed only a notional income of Rs.5,000/- and
the same is on the lower side.
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2025:KER:19933
7. The decision of the Hon'ble Supreme Court in
Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd.
[(2011) 13 SCC 236] and Syed Sadiq and Others v. Divisional
Manager, United India Insurance Company [(2014) 2 SCC 735 =
2014 KHC 4027] shows that even in the absence of any evidence, the
monthly income of an ordinary worker has to be fixed as Rs.4,500/- in
respect of the accident occurred in the year 2004 and for the subsequent
years, the monthly income could be reckoned by adding Rs.500/- each
per year. If the monthly income of the deceased is calculated by
adopting the above principle, it will come to Rs.9,500/- as the accident
occurred in the year 2014. Therefore, considering the facts and
circumstances, I find that it is only reasonable to fix the notional income
of the deceased as Rs.9,500/- per month for calculating the
compensation.
8. The decision of the Hon'ble Supreme Court in National
Insurance Co. Ltd. v Pranay Sethi [(2017) 16 SCC 680] and
Jagdish v. Mohan [(2018) 4 SCC 571] shows that the benefit of
future prospects should not be confined only to those who have a
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2025:KER:19933
permanent job and would extend to self-employed individuals and in
case of a self-employed person, an addition of 40% of the established
income should be made where the age of the victim at the time of the
accident was below 40 years.
9. The deceased was a bachelor. The Tribunal accepted 18 as the
multiplier applicable and deducted 50% of the income towards the
personal and living expenses of the deceased by following the decision
of the Hon'ble Supreme Court in Sarla Varma v. Delhi Transport
Corporation [2010 (2) KLT 802 (SC)]. Thus, while reassessing the
compensation for loss of dependency as per the revised criteria, the
amount would come to Rs.14,36,400/-[(9500 + 40%) x 12 x 18 x ½].
10. The decision of the Hon'ble Supreme Court in Pranay Sethi
(Supra) would show that the reasonable amount payable on
conventional heads namely loss of estate, loss of consortium and funeral
expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/-
respectively and that the aforesaid amount should be enhanced by 10%
in every three years. The Hon'ble Supreme Court in Rojalini Nayak &
Ors v. Ajit Sahoo (2024 KHC Online 8300) by adopting the above
metric awarded a compensation of Rs.48,400/- towards loss of
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2025:KER:19933
consortium and Rs.18,150/- each towards funeral expenses and loss of
estate. Therefore, the amount awarded by the Tribunal towards funeral
expenses and loss of estate will be modified to Rs.18,150/- each and the
petitioners will also be entitled for Rs.48,400/- towards loss of
consortium. The decision of the Hon'ble Supreme Court in Shriram
General Ins.Co.Ltd. v. Bhagat Singh Rawat (2023 KHC Online
7244) shows that the compensation under the heads of loss of love and
affection and loss of consortium cannot be granted to each legal
representative of the deceased and in view of the said position, the
petitioners are not entitled for a separate amount towards loss of love
and affection.
11. The learned counsel for the respondent insurance company
argued that the Tribunal has granted Rs.2,00,000/- as compensation for
the pain and sufferings of the deceased and the same is on the higher
side. Section 2 of the Kerala Torts (Miscellaneous Provisions) Act, 1976
shows that the right to sue for compensation for pain and suffering
would survive upon the legal heirs, if the injured died at a later point of
time.
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2025:KER:19933
12. In Jyni and Others v. Raphel P. T. and Others [2016 (2)
KHC 870], a Division Bench of this Court held as follows:
36. Death in an accident is generally the result of violent impact
on the body resulting in serious injuries causing severe pain. The
magnitude of the ordeal may vary from case to case depending upon
the nature of injuries sustained. In cases of instantaneous deaths also
pain and suffering is invariably present, as in the case of survival for
hours or days. In cases of instantaneous death as well as cases where
the deceased was unconscious between the time of accident and the
time of his death, some notional amount is payable under the head
pain and suffering. A slightly higher amount can be awarded under
this head, if the death is not instantaneous. Therefore, a conventional
amount in the range of Rs.5,000/- to Rs.15,000/- could be awarded
under the head pain and suffering in such cases. In the instant case,
the deceased succumbed to injuries on the date of accident itself. In
such circumstances, Rs.10,000/- awarded by the Tribunal under the
head pain and suffering represents just and reasonable
compensation, which requires no enhancement in this appeal."
In view of the above legal position, the compensation granted by the
Tribunal towards 'pain and sufferings' of the deceased is reduced to
Rs.15,000/-.
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2025:KER:19933
13. In conclusion, the enhanced amount of compensation, as
modified as a result of the above discussion is encapsulated, in a tabular
format herein below:
Compensation Final
Sl.No Particulars awarded by the Amount
Tribunal (Rs.) Payable
1 Loss of dependency 5,40,000/- 14,36,400/-
2 Loss of estate NIL 18,150/-
3 Funeral expenses 25,000/- 18,150/-
4 Loss of consortium NIL 48,400/-
5 Love and affection 2,00,000/- NIL
6 Pain and sufferings 2,00,000/- 15,000/-
7 Transport to hospital 5,000/- 5,000/-
Total amount Payable 9,70,000/- 15,41,100/-
14. Accordingly, the total amount of compensation payable to the
claim petitioners is determined as Rs.15,41,100/- and the appellants in
M.A.C.A No. 1268 of 2019/claim petitioners are allowed to recover the
compensation amount of Rs.15,41,100/- (Rupees Fifteen Lakhs Forty
One Thousand and One Hundred only) with interest at the rate of 9%
per annum from the date of the claim petition till the date of realization
(excluding the period of delay of 1139 days in filing the appeal) with
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2025:KER:19933
proportionate costs from the respondents. The appellant insurance
company shall deposit the said amount together with interest and costs
before the Tribunal within a period of three months from the date of
receipt of a certified copy of this judgment.
Both the appeals are allowed in part as above.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
