Kerala High Court
Reliance General Insurance Co.Ltd vs Salila on 12 March, 2025
M.A.C.A. No. 271 & 953 of 2020 :1:
2025:KER:20718
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 12TH DAY OF MARCH 2025 / 21ST PHALGUNA, 1946
MACA NO. 271 OF 2020
AWARD DATED 25.09.2019 IN OP(MV) NO.941 OF 2017 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA
APPELLANT/2ND RESPONDENT:
RELIANCE GENERAL INSURANCE CO.LTD.
1ST FLOOR, VISHNU BUILDING, K.P.VALLON ROAD, KADAVANTHRA,
COCHIN-II, ERNAKULAM-682 020, REPRESENTED BY ITS LEGAL CLAIMS
MANAGER, RELIANCE GENERAL INSURANCE CO.LTD., ERNAKULAM.
BY ADV. SRI. TAPAS VARMA A
RESPONDENTS/PETITONERS 1 TO 3 & 1ST RESPONDENT:
1 SALILA, AGED 52 YEARS, KAVILETH HOUSE, WEST OTHERA P.O.,
KUTTOOR VILLAGE, THIRUVALLA TALUK, PINCODE-689 546.
2 SAJAYAN.K.P., AGED 36 YEARS, KAVILETH HOUSE, WEST OTHERA P.O.,
KUTTOOR VILLAGE, THIRUVALLA TALUK, PINCODE-689 546.
3 AJAYAN.K.P., AGED 34 YEARS, KAVILETH HOUSE, WEST OTHERA P.O.,
KUTTOOR VILLAGE, THIRUVALLA TALUK, PINCODE-689 546.
4 GOPALAKRISHNA KURUP, S/O.KRISHNA KURUP, KUZHIYATHU
PADINJAREPPURA, PERUMPULICKAL, MANNAM NAGAR P.O.,
PANDALAM-689 501.
BY ADVS.
R1 TO R3 BY SRI.T.K.KOSHY
R4 BY SRI.B.RAJESH (KOTTAYAM)
SRI.SABU I.KOSHY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
10.03.2025, ALONG WITH MACA.953/2020, THE COURT ON 12.03.2025
DELIVERED THE FOLLOWING:
M.A.C.A. No. 271 & 953 of 2020 :2:
2025:KER:20718
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 12TH DAY OF MARCH 2025 / 21ST PHALGUNA, 1946
MACA NO. 953 OF 2020
AWARD DATED 25.09.2019 IN OP(MV) NO.941 OF 2017 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA
APPELLANTS/PETITIONERS 1 TO 3:
1 SALILA, AGED 54 YEARS, KAVILETH HOUSE, WEST OTHERA P.O.,
KUTTOOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.
2 SAJAYAN K.P., AGED 37 YEARS, KAVILETH HOUSE, WEST OTHERA P.O.,
KUTTOOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.
3 AJAYAN K.P., AGED 35 YEARS
KAVILETH HOUSE, WEST OTHERA P.O., KUTTOOR VILLAGE, THIRUVALLA
TALUK, PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI. T.K.KOSHY
SRI.SABU I.KOSHY
SMT.V.V.RISANI
RESPONDENTS/RESPONDENTS 1 & 2:
1 GOPALAKRISHNA KURUP, S/O.KRISHNA KURUP, KUZHIYATHU
PADINJAREPPURA, PERUMPULICKAL, MANNAM NAGAR P.O., PANDALAM,
PATHANAMTHITTA DISTRICT, PIN-689 501.
2 MANAGER, RELIANCE GENERAL INSURANCE CO.LTD., 1ST FLOOR,
VISHNU BUILDING, K.P.VALLON ROAD, KADAVANTHARA, COCHIN-II,
ERNAKULAM-682 020.
R2 BY ADV. SRI. TAPAS VARMA A
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARDON
10.03.2025, ALONG WITH MACA.271/2020, THE COURT ON 12.03.2025,
DELIVERED THE FOLLOWING:
M.A.C.A. No. 271 & 953 of 2020 :3:
2025:KER:20718
JOHNSON JOHN, J.
---------------------------------------------------------
M.A.C.A Nos. 271 & 953 of 2020
--------------------------------------------------------
Dated this the 12th day of March, 2025.
JUDGMENT
These appeals are filed by the 2nd respondent insurance company
and the claim petitioners challenging the quantum of compensation fixed
by the Tribunal as per award dated 25.09.2019 in O.P.(MV) No. 941 of
2017 on the file of the Motor Accident Claims Tribunal, Pathanamthitta.
2. The claim petitioners are the legal heirs of the deceased
Pankajakshan, who died in a motor vehicle accident. According to the
petitioners, on 28.05.2017 while the deceased was driving an
autorickshaw, car driven by the 1 st respondent in a rash and negligent
manner caused to hit the autorickshaw and thereby, the deceased
sustained serious injuries and subsequently succumbed to his injuries,
while undergoing treatment in the hospital. The 1 st respondent is also
the owner of the offending vehicle and the 2 nd respondent is the insurer.
3. Before the Tribunal, Exhibits A1 to A10 were marked from the
side of the petitioners and no evidence adduced from the side of the
2025:KER:20718
respondents. The Tribunal arrived at 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.9,02,030/- to the petitioners.
4. Heard Sri. Tapas Varma A., the learned counsel for the
appellant insurance company and Sri. T.K. Koshy, the learned counsel
for the appellant claim petitioners.
5. The learned counsel for the appellants/claim petitioners argued
that the deceased was aged 65 years and he was driving his own
autorickshaw at the time of accident and for the reason that no
document is produced to prove the income of the deceased, the Tribunal
fixed only a notional income of Rs.13,000/- and the same is on the lower
side. It is argued that the occupation of the deceased as an autorickshaw
driver is not seriously disputed and therefore, the Tribunal ought to have
accepted the minimum wages of a skilled worker for fixing the income of
the deceased. In this connection, the learned counsel for the appellants
cited the decision of the Honourable Supreme Court in Manusha
2025:KER:20718
Sreekumar and Others v. United India Insurance Co. Ltd. [2022
KHC 7106], wherein it was held as follows in paragraph 20:
"20. Schedule B - Category III of the Kerala Fair Wages Act
classifies a driver as a "Skilled worker". Reading this in conjunction
with the Notification that came into effect from 01/01/2015 which
amended Schedule A of the Kerala Fair Wages Act, prescribing a
minimum pay scale of the workers listed in Schedule B, it is apparent
that a 'driver' in Kerala earned a minimum of Rs. 15,600/- in 2015. It
appears to us that the aforesaid Act and the notification issued
thereunder were not brought to the notice of the Tribunal or the High
Court. As a result thereto, the High Court could not be cognizant of the
statutory mandate prescribing minimum wages for a skilled worker like
'driver', and thus, erred in fixing the income of the Deceased at
Rs.10,000/-. We are therefore inclined to fix the income of the
Deceased notionally at Rs. 15,600/- per month."
In view of the minimum wages of a skilled worker in Kerala, I find that
the monthly notional income of the deceased can be fixed at Rs.15,600/-
for the purpose of calculating the compensation.
6. The Tribunal accepted 7 as the multiplier applicable and
deducted one-third of the income towards personal and living expenses
of the deceased by following the decision of the Honourable Supreme
2025:KER:20718
Court in Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT
802 (SC)] and the same is not under challenge. Thus, while re
assessing the compensation for loss of dependency as per the revised
criteria, the amount would come to Rs.8,73,600/- [15600 x 12 x 7 x
2/3]. The Tribunal has already granted Rs.7,28,028/- under this head
and therefore, the appellants/claim petitioners are entitled for additional
compensation of Rs.1,45,572/- under this head.
7. The learned counsel for the respondent insurance company
argued that the Tribunal has granted Rs.15,000/- towards pain and
sufferings of the deceased, even though it is in evidence that he died on
the same day. 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.
8. 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
2025:KER:20718
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."
Since the deceased died on the same day after a few hours of the
accident, I find that the reasonable compensation for pain and sufferings
of the deceased can be fixed as Rs.10,000/-.
9. The learned counsel for the appellant insurance company
argued that the Tribunal allowed Rs.40,000/- towards loss consortium to
the 1st petitioner, who is the widow of the deceased, and also allowed
Rs.40,000/- each towards loss of love and affection to petitioners 2 and
2025:KER:20718
3, who are the children of the deceased, and 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, in view
of the decision of the Honourable Supreme Court in Shriram General
Ins.Co.Ltd. v. Bhagat Singh Rawat (2023 KHC Online 7244).
10. The learned counsel for the appellants/claim petitioners cited
the decision of the Honourable Supreme Court in New India Assurance
Co. Ltd. v. Somwati [(2020) 9 SCC 644], wherein the Honourable
Supreme Court relied on a three-Judge Bench decision of the Honourable
Supreme Court in United India Insurance Co. Ltd. v. Satinder Kaur
[(2021) 11 SCC 780], and held as follows in paragraphs 37 and 38:
"37. The learned counsel for the appellant has submitted
that Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi,
(2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205]
has only referred to spousal consortium and no other consortium
was referred to in the judgment of Pranay Sethi [National
Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3
SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] , hence, there is no
justification for allowing the parental consortium and filial
consortium. The Constitution Bench in Pranay Sethi [National
2025:KER:20718
Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3
SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] has referred to amount of
Rs 40,000 to the "loss of consortium" but the Constitution Bench
had not addressed the issue as to whether consortium of Rs
40,000 is only payable as spousal consortium. The judgment of
Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017)
16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] cannot
be read to mean that it lays down the proposition that the
consortium is payable only to the wife.
38. The three-Judge Bench in United India Insurance Co.
Ltd. [United India Insurance Co. Ltd. v. Satinder Kaur, (2021) 11
SCC 780 : 2020 SCC OnLine SC 410] has categorically laid down
that apart from spousal consortium, parental and filial consortium
is payable. We feel ourselves bound by the above judgment of the
three-Judge Bench. We, thus, cannot accept the submission of the
learned counsel for the appellant that the amount of consortium
awarded to each of the claimants is not sustainable. "
11. As noticed earlier, the Tribunal granted Rs.40,000/- as
consortium to the 1st petitioner and Rs.40,000/- each to petitioners 2
and 3 towards loss of love and affection. It is well settled that loss of
love and affection is comprehended in loss of consortium and in view of
the decisions of the Honourable Supreme Court referred above, I find no
2025:KER:20718
reason to interfere with the compensation fixed by the Tribunal under
conventional heads. Since the compensation for pain and sufferings is
already reduced to Rs.10,000/-, the appellants/claim petitioners are
entitled for an additional compensation of Rs.1,40,572/- (Rupees One
Lakh Forty Thousand Five Hundred and Seventy Two only).
In the result, M.A.C.A. No.271 of 2020 is dismissed and M.A.C.A
No. 953 of 2020 is allowed in part and a total amount of Rs.1,40,572/-
(Rupees One Lakh Forty Thousand Five Hundred and Seventy Two only)
is awarded as enhanced compensation. The said amount shall carry
interest at the rate of 9% per annum from the date of the application till
realization. The appellants/claim petitioners would also be entitled to
proportionate costs in the case. The claimants shall furnish the details of
the bank account to the insurance company for transfer of the amount.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
