Kerala High Court
Neethu S Babu vs The New India Assurance Company Ltd on 12 March, 2025
MACA. No.298/2018 & CO.140/2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 12TH DAY OF MARCH 2025 / 21ST PHALGUNA, 1946
MACA NO. 298 OF 2018
AGAINST THE AWARD DATED 28.09.2017 IN OPMV NO.460 OF
2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,ERNAKULAM
APPELLANT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE CO.LTD
MUVATTUPUZHA, REPRESENTED BY
ITS DEPUTY MANAGER, REGIONAL OFFICE,
M.G.ROAD, ERNAKULAM.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.LATHA SUSAN CHERIAN
SMT.K.S.SANTHI
RESPONDENTS/CLAIMANTS:
1 NEETHU.S.BABU
D/O.SARACHANDRA BABU, REVATHI HOUSE,
PADASSERY LANE, EROOR WEST, NADAMA VILLAGE.
2 GEETHU S.BABU
D/O.SARACHANDRA BABU, REVATHI HOUSE,
PADASSERY LANE, EROOR WEST, NADAMA VILLAGE.
BY ADV V.A.OMANAKUTTAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 12.03.2025, ALONG WITH CO.140/2024, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
MACA. No.298/2018 & CO.140/2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 12TH DAY OF MARCH 2025 / 21ST PHALGUNA, 1946
CO NO. 140 OF 2024
IN MACA NO.298 OF 2018 OF HIGH COURT OF KERALA
CROSS OBJECTOR/RESPONDENTS:
1 NEETHU S BABU
AGED 37 YEARS, D/O SARACHANDRA BABU,
REVATHI HOUSE, PADASSERY LANE,
EROOR WEST, NADAMA VILLAGE,
ERNAKULAM DISTRICT, PIN - 682306
2 GEETHU S. BABU
AGED 35 YEARS, D/O SARACHANDRA BABU,
REVATHI HOUSE, PADASSERY LANE,
EROOR WEST, NADAMA VILLAGE,
ERNAKULAM DISTRICT, PIN - 682306
BY ADV V.A.OMANAKUTTAN
RESPONDENT/APPELLANT:
THE NEW INDIA ASSURANCE COMPANY LTD
MUVATTUPUZHA, REP. BY ITS DEPUTY MANAGER,
REGIONAL OFFICE, M G ROAD,
ERNAKULAM DISTRICT, PIN - 682035
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY
HEARD ON 12.03.2025, ALONG WITH MACA.298/2018, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
MACA. No.298/2018 & CO.140/2024
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JUDGMENT
Dated this the 12th day of March, 2025
The Respondent No.3 in O.P.(M.V.) No460/2015 on the file of the
Motor Accident Claims Tribunal, Ernakulam is the appellant herein. The
original petitioners are the cross objectors. (For the purpose of
convenience, the parties are hereafter referred to as per their rank before
the Tribunal).
2. The O.P. was filed under under Section 166 of the Motor
Vehicles Act, 1988, by the children of the deceased by name
Sarachandra Babu, who died in a motor vehicle accident that occurred
on 31.1.2015. According to them, on 31.1.2015, at about 6.40 p.m.
while the deceased was riding a motor cycle along the Tripunithura-Hill
Palace road, he was hit down by a bus bearing bearing registration
No.KL-17B-2138 driven by the 1st respondent in a rash and negligent
manner and as a result of which he sustained serious injuries. He
succumbed to the injuries on the same day.
3. The 1st respondent is the driver, the 2nd respondent is the owner
and 3rd respondent is the insurer of the offending vehicle. 4 th respondent
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is the insurer of the motor cycle ridden by the deceased. According to
the petitioners, the accident occurred due to the negligence of the driver
of the offending vehicle, bus. The quantum of compensation claimed in
the O.P. was Rs.35,00,000/-.
4. The insurance company filed a written statement, admitting the
accident as well as policy, but disputing the negligence on the part of the
driver of the offending vehicle.
5. The evidence in the case consists of the oral testimony of PW1
and documentary evidence Exts.A1 to A12. No evidence was adduced
by the respondents.
6. After evaluating the evidence on record, the Tribunal found
negligence on the part of the driver of the offending vehicle, awarded a
total compensation of Rs.20,39,040/- and directed the insurer to pay the
same.
7. Aggrieved by the quantum of compensation awarded by the
Tribunal, the Respondent No.3 preferred this appeal.
8. Now the point that arises for consideration is the following:
Whether the quantum of compensation awarded by the
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Tribunal is just and reasonable?
9. Heard Sri. George Cherian, learned Senior Counsel on behalf
of Smt. Latha Susan Cherian, the learned Standing Counsel for the
appellant, and Sri. V.A. Omanakuttan, the learned Counsel for the
petitioners/cross objectors.
10. The Point: In this case the accident as well as valid policy of
the offending vehicle are admitted. One of the contentions raised by the
learned Senior Counsel for the appellant is that the Tribunal has adopted
split multiplier and taken the income of the deceased as Rs.37,290/- till
the retirement of the deceased and notional income of Rs.15,000/- was
taken for the period after his retirement and half of the income was
deducted towards his personal and living expenses on the ground that
both the claimants are major daughters of the deceased and not
depending upon the deceased. According to him, the notional income of
the deceased taken are on the higher side, especially after finding that
the claimants are not the dependents of the deceased.
11. The learned counsel for the petitioners, relying upon Exhibit
A9 certificate would argue that the deceased was working as Assistant
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Grade II in Bharatiya Vidhyabhavan and he was drawing a gross salary
of Rs.38,904/- and after deducting Rs.1,614/- towards income tax and
Rs.4,526/- towards Provident Fund, he was receiving a net salary of
Rs.32764/-. According to him, the notional income fixed by the Tribunal
is not correct and also argued that the Tribunal was not justified in
applying the split multiplier. He would also argue that the 2 nd claimant
though married was living along with her family, in the residence of the
deceased and as such the Tribunal was not justified in holding that the
claimants are not the dependents of the deceased. Therefore, according
to him, the Tribunal was not justified in deducting 1/2 of the income
towards personal and living expenses.
12. The law is well settled that the income for the purpose of
assessing loss of dependency in the actual income less the income tax
payable and the multiplier applicable is that on the date of death.
Therefore, the split multiplier applied by the Tribunal is not correct. In
order to prove the income of the deceased the petitioner relied upon
Exhibit A9 certificate issued by the Director, Bharatiya Vidhyabhavan.
The learned Senior Counsel would argue that Exhibit A9 was not proved
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by examining the person who issued the certificate and as such the
salary mentioned in the said document could not be accepted as the
salary of the deceased. However, it appears that Exhibit A9 was marked
without any objection from the side of the respondents and as such I do
not find any grounds to disbelieve Exhibit A9. From Exhibit A9, it is
revealed that the deceased was receiving a gross salary of Rs.38904/-
and after deducting income tax Rs.1,614/- and provident fund
Rs.4,526/-, he was receiving a net salary of Rs.32,764/-. Therefore, his
monthly salary, after deducting the income tax will come to Rs.37,290/-.
13. According to the learned counsel for the petitioners, the
deceased was aged only 55 years and the Tribunal was not justified in
taking his age as 56. As argued by the learned senior counsel, in the
claim petition, the age of the deceased was mentioned as 56 years.
Moreover, in the cross objection, the petitioners have not challenged the
finding of the Tribunal that the deceased was aged 56 years. Therefore,
I am inclined to accept the age of the petitioner as 56 years.
14. The fact that the 2nd claimant/daughter along with her family
was residing along with the deceased, is not in dispute. In the above
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circumstances, the Tribunal was not justified in holding that the
claimants are not he dependents of the deceased and hence the Tribunal
ought to have deducted only 1/3rd of the income from the salary of the
deceased towards his personal and living expenses.
15. Since on the date of accident, the deceased was aged 56
years and he was a permanent employee of the Bharatiya Vidhyabhavan,
15% of the income is to be added towards future prospects, as held in
the decision in National Insurance Co. Ltd. v. Pranay Sethi [(2017)
16 SCC 680] and the multiplier to be applied is 9, as held in Sarla
Verma v. Delhi Transport Corporation, [(2009) 6 SCC 121]. Since
the deceased was married who left behind 2 dependents, towards
personal and living expense, 1/3 of the income is liable to be deducted,
as held in Sarla Verma (supra). In the above circumstances, the loss of
dependency will come to Rs.27,12,859/-.
16. The Tribunal has awarded Rs.1,00,000/- towards loss of
estate, Rs.25,000/- towards funeral expenses, and Rs.1,00,000/- towards
love and affection. In the light of the decision in Pranay Sethi (supra),
the appellants are entitled to get a consolidated sum of Rs.15,000/-
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towards loss of estate, Rs.15,000/- towards funeral expenses, and the
dependents (parents, children and spouse) are entitled to get a sum of
Rs.40,000/- each towards loss of consortium, with an increase of 10% in
every three years. Therefore, towards loss of estate and funeral expense
they are entitled to get a sum of Rs.18,150/- each. Towards loss of
consortium, petitioners together are entitled to get a sum of Rs.96,800/-
(48,400 x 2).
17. Since compensation for loss of consortium was given, further
compensation for 'love and affection' and 'loss of guidance and support'
cannot be granted, in view of the decision in New India Assurance
Company Ltd. v. Somwati and Others, (2020)9 SCC 644. Therefore,
the compensation awarded towards 'love and affection' and 'loss of
guidance and support' are to be deducted.
18. Towards the head 'pain and sufferings', the Tribunal has
awarded Rs.60,000/-, which according to the learned counsel for the
appellant, is on the higher side. The deceased died in this case on the
date of the accident. In the above circumstances, I hold that Rs.25,000/-
will be a reasonable compensation towards 'pain and suffering' and
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hence, it is modified as Rs.25,000/-
19. No change is required, in the amounts awarded on other
heads, as the compensation awarded on those heads appears to be just
and reasonable.
20. Therefore, the petitioners/cross objectors are entitled to get a
total compensation of Rs.28,80,959/-, as modified and recalculated
above and given in the table below, for easy reference:
Sl.
Head of Claim Amount awarded Amount Awarded
No.
by Tribunal (in Rs.) in Appeal (in Rs.)
1 Damage to clothing and articles 4,000/- 4,000/-
2 Transport expenses 6,000/- 6,000/-
3 Funeral expenses 25,000/- 18150/-
4 Pain and suffering 60,000/- 25,000/-
5 Loss of guidance & support 50,000/- Nil
6 Loss of love and affection 1,00,000/- Nil
7 Loss of dependency 16,94,040/- 27,12,859/-
8 Loss of estate 1,00,000/- 18,150/-
9 Consortium Nil 96,800/-
Total 20,39,040/- 28,80,959/-
Enhanced Rs.8,41,919/-
21. In the result, this Appeal is allowed in part, and the 3 rd
respondent is directed to deposit a total sum of Rs.28,80,959/- (Rupees
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twenty eight lakhs eighty thousand nine hundred and fifty nine only),
less the amount already deposited, if any, along with interest @ 8% per
annum from the date of the petition till realisation/deposit, with
proportionate costs, within a period of two months from today.
22. On depositing the aforesaid amount, the Tribunal shall
disburse the entire amount to the petitioners, in the ratio fixed by the
Tribunal, excluding court fee payable, if any, without delay, as per rules.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
