Kerala High Court
National Insurance Company Limited vs Lissy Joseph on 17 March, 2025
MACA NOs. 2801 OF 2016 & 722 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 17TH DAY OF MARCH 2025 / 26TH PHALGUNA, 1946
MACA NO. 2801 OF 2016
AGAINST THE AWARD DATED 30.04.2016 IN OPMV NO.329 OF 2013 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA
APPELLANTS/PETITIONERS :-
1 LISSY JOSEPH, AGED 48 YEARS
W/O. JOSEPH P.C. (LATE) AGED 48 YEARS, PULICKAPRAVIL
HOUSE, ELIKKULAM PANCHAYATH, NJANDUPARA POST, PAIKA
KOTTAYAM DISTRICT.
2 THOMAS JOSEPH, AGED 19 YEARS
S/O. JOSEPH P.C. (LATE) AGED 19 YEARS, PULICKAPRAVIL
HOUSE, ELIKKULAM PANCHAYATH. NJANDUPARA POST, PAIKA,
KOTTAYAM DISTRICT.
BY ADVS.
SRI.JAI GEORGE
SMT.DAISY A.PHILIPOSE
RESPONDENTS/RESPONDENTS :-
1 M/S. NATIONAL INSURANCE COMPANY
KOTTAYAM DIVISION, C.S.I. SQUARE, BAKER HILL,
KOTTAYAM , PIN- 686 001.
2 ATHIRA ARUN
W/O. ARUN THOMAS, PULICKAPARAVIL HOUSE,
NJADU PARA POST, KOTTAYAM DISTRICT.
3 ARON THOMAS ARUN
S/O. ARUN THOMAS, AGED 1 1/2 YEARS, MINOR,
PULICKAPRAVIL HOUSE, NJANDU PARA POST,
MACA NOs. 2801 OF 2016 & 722 of 2018
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KOTTAYAM DISTRICT,
REPRESENTED BY HIS MOTHER ATHIRA AURN.
BY ADVS.
B.JAYABAL(K/150/2010)
DEEPU.T.B.(K/80/2021)
Deepa George George
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 17.03.2025, ALONG WITH MACA.722/2018, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
MACA NOs. 2801 OF 2016 & 722 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 17TH DAY OF MARCH 2025 / 26TH PHALGUNA, 1946
MACA NO. 722 OF 2018
AGAINST THE AWARD DATED IN OPMV NO.329 OF 2013 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL, PALA
APPELLANT/1ST RESPONDENT :-
NATIONAL INSURANCE COMPANY LIMITED
KOTTAYAM DIVISION, CSI SQUARE, BAKER HILL,
KOTTAYAM 686001
BY ADV DEEPA GEORGE
RESPONDENTS/PETITIONERS 1 AND 2 & RESPONDENTS 2 AND 3 :-
1 LISSY JOSEPH
AGED 48 YEARS
W/O LATE JOSEPH P.C PULICKAPRAVIL HOUSE ,
ELIKULAM PANCHAYAT, NJANDUPARA PO, PAIKA,
KOTTAYAM DISTRICT
2 THOMAS JOSEPH
S/O LATE JOSEPH, PULICKAPRAVIL HOUSE, ELIKULAM
PANCHAYATH, NJANDUPARA (P.O.) PAIKA, KOTTAYAM DT
3 ATHIRA ARUN
W/O ARUN THOMAS, PULICKAPRAVIL HOUSE,
NJANDUPARA (PO) KOTTAYAM DT, PIN- 686 577
4 ARON THOMAS ARUN(MINOR)
AGED 1/2 YRS, S/O ARUN THOMAS,
REPRESENTED BY HIS MOTHER ATHIRA ARUN,
W/O ARUN THOMAS, PULICKAPRAVIL HOUSE, NJANDUPARA (PO)
MACA NOs. 2801 OF 2016 & 722 of 2018
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KOTTAYAM DISTRICT - PIN -686577
BY ADVS.
B.JAYABAL(K/150/2010)
DEEPU.T.B.(K/80/2021)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 17.03.2025, ALONG WITH MACA.2801/2016, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
MACA NOs. 2801 OF 2016 & 722 of 2018
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COMMON JUDGMENT
The petitioners in O.P.(M.V.) No.329/2013 on the file of the Motor
Accident Claims Tribunal, Pala are the appellants in MACA No.2801 of 2016 and
1st respondent in the O.P is the appellant in MACA No.722 of 2018 . (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 mother and brother of the deceased by name Bibin George
Joseph, 23 years, who died in a motor vehicle accident that occurred on
08.03.2013. According to them, on 08.03.2013 at about 04.30 am, while the
deceased Bibin George Joseph along with his brother Abin Cherian Joseph, their
father P.C.Joseph and one Arun Thomas were travelling in a Tata Indica car
bearing Registration No.KL-31-3686 from Bangalore to Paika, after purchasing
marbles and granite for flooring of their new house under construction, the car hit
behind an unidentified lorry. As a result of which, all the four passengers in the
car sustained serious injuries and succumbed to the injuries. Arun Thomas, who
was the owner of the car was driving the car.
3. The 1st respondent is insurer of the car. Respondents 2 and 3 are the
legal heirs of owner of the car Arun Thomas. According to the petitioners, the
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accident occurred due to the negligence of the driver of the car. The quantum of
compensation claimed in the O.P. was Rs.29,52,500/-.
4. The insurance company filed a written statement, admitting the
accident as well as policy, but contending that the insured was not the driver of the
car at the time of accident. It was also alleged that since the insured was not a third
party, his name was substituted in the place of the driver.
5. The evidence in the case consists of the oral testimonies of PWs 1
to 3 and documentary evidence Exts.A1 to A43 and B1.
6. After evaluating the evidence on record, the Tribunal found that
Arun Thomas was the driver at the time of accident, that accident occurred due to
his negligence, awarded a total compensation of Rs.10,70,595/- and directed the
insurer to pay the same.
7. Aggrieved by the quantum of compensation awarded by the
Tribunal, the petitioners preferred MACA No.2801 of 2016. When the Tribunal
passed the award on 30.04.2016, against the award, the insurer filed a review
petition before the Tribunal on 04.01.2017 along with a certified copy of the final
report in Crime No.160/2013 of Omallur Police Station, Salem District. However
the Tribunal dismissed the above review petition and thereafter the insurer
preferred MACA 722/2018.
8. Now the points that arise for consideration are the following:
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1) Whether Arun Thomas was the driver of the car at the time of
accident?
2) Whether the quantum of compensation awarded by the Tribunal
is just and reasonable?
9. Heard Sri.Jai George, the learned Counsel appearing for the
petitioners and Smt.Deepa George, the learned Standing Counsel for the 1 st
respondent.
10. The Point:- The case of the petitioners was to the effect that at the
time of the accident one Arun Thomas was the driver of the car in which the
deceased was travelling. Accordingly, Ext.A3 FIR was registered by the police
making Arun Thomas as the accused. Before the Tribunal the Final Report was
not produced and accordingly the Tribunal relied upon Ext.A3 FIR and passed the
award against the insurer. Along with the review petition the insurer has produced
Exts.B1 & B1(a) Final Report in which the police after investigation found that
Ebin George Joseph was the driver of the car at the time of the accident. However,
in this case the above final report has no relevance, as the deceased herein was
only a passenger in the said car.
11. In this case the accident as well as valid policy of the offending
vehicle are admitted. One of the contentions raised by the learned counsel for the
petitioners is regarding the income of the deceased as fixed by the Tribunal at
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Rs.8,000/-. According to the petitioners the deceased in this case was a 23 year old
MBA 4th Semester student in Mangalam College of Engineering, Ettumanoor.
Therefore, according to the learned counsel for the petitioners the notional income
of the deceased fixed by the Tribunal at Rs.8,000/- is on the lower side. On the
other hand, according to the learned counsel for the insurer, the Tribunal has
awarded Rs.70,095/- on the head funeral expenses and Rs.1,00,000/- towards love
and affection, which are on the higher side.
12. From Ext.A32, BBA certificate of the deceased it is revealed that,
he had passed BBA in first class in March 2011. Therefore, as argued by the
learned counsel for the petitioners, the deceased was a bright student and he had a
very good future when he met with the accident. The learned counsel for the
insurer relied upon the decision of the Apex Court in Meena Pawaia and Others
v. Asraf Ali and Others [2021 (6) KHC 596] and submitted that in an accident
in the year 2012, the notional income of an Engineering student was fixed at
Rs.10,000/-.In the decision in Kandasamy v. Linda Briyal [2023 KHC 5361],
the Hon'ble Supreme Court has fixed the notional income of a B.Tech Graduate in
the year 2008 at Rs.25,000/-. In the decision in Basanti Devi and Others v.
Divisional Manager, New India Assurance Company Ltd. & others
[Manu/SC/1333/2021], the Hon'ble Supreme Court has fixed the notional income
of a B.Tech graduate in Computer Technology involved in an accident of the year
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2011 at Rs.20,000/-. This Court has fixed the notional income of a final year
Engineering student involved in an accident of the year 2015 at Rs.22,000/-, in the
decision in Nanu K and Others v. National Insurance Company Ltd. [MACA
No.565 of 2019]. In the decision in S.Vasanthi v. Adparasakthi Engineering
College [AIR 2022 SC 5051], the Hon'ble Supreme Court has fixed the notional
income of an Engineering Graduate pursuing MBA involved in an accident in the
year 2010 at Rs.30,000/-. In the instant case, the deceased passed BBA in first
class and he was pursuing MBA 4th Semester and as such, I hold that the notional
income fixed by the Tribunal at Rs.8,000/- is too meager and hence it is fixed at
Rs.20,000/-.
13. On the date of accident, the deceased was aged 23 years. Therefore,
40% of the monthly income is liable 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 18, as held in Sarla Verma v. Delhi
Transport Corporation, (2009) 6 SCC 121. Since the deceased was a bachelor
who left behind 2 dependents, towards personal and living expense, 1/2 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.30,24,000/-.
14. Towards funeral expenses Rs.70,095/- was awarded by the Tribunal.
and Rs.,1,00,000/- towards love and affection. No amount was granted towards
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loss of estate and loss of consortium. In the light of the decision in Pranay Sethi
(supra), the appellants are entitled to get a consolidated sum of Rs.15,000/-
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, petitioner No.1 is entitled to get
a sum of Rs.48,400/- (48,400 x 1).
15. Since compensation for loss of consortium was given, further
compensation for love and affection 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 is to be
deducted.
16. The insurer has challenged the rate of interest awarded by the
tribunal at 9%. Considering the entire facts, I hold that interest at the rate of 8%
will be reasonable.
17. No change is required, in the amounts awarded on other heads, as
the compensation awarded on those heads appears to be just and reasonable.
18. Therefore, the petitioners are entitled to get a total compensation of
Rs.31,45,200/-, as modified and recalculated above and given in the table below,
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for easy reference:
Sl.
No. Head of Claim Amount awarded by Amount Awarded in
Tribunal (in Rs.) Appeal (in Rs.)
1 Transport to hospital 11500 11500
2 Funeral expenses 70095 18,150
3 Pain and sufferings 25000 25000
4 Loss of dependency 864000 30,24,000
5 Loss of consortium Nil 48,400
6 Loss of estate Nil 18,150
7 Loss of love and affection 1,00,000 Nil
Total 10,70,595 31,45,200
Enhanced to Rs. 20,74,605
19. In the result, these Appeals are disposed of and the 1st respondent is
directed to deposit a total sum of Rs.31,45,200/- (Rupees Thirty One Lakh Forty
Five Thousand Two Hundred 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 in MACA 2801 of 2016, within a
period of two months from today. No costs ordered in MACA 722 of 2018.
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20. 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
SMA
