Kerala High Court
The United India Insurance Co. Ltd vs Umadevi R on 21 March, 2025
M.A.C.A. No. 4663/2019 :1:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 21ST DAY OF MARCH 2025 / 30TH PHALGUNA, 1946
MACA NO. 4663 OF 2019
AGAINST THE AWARD DATED 06.02.2019 IN O.P(MV) NO.569 OF 2016 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI
APPELLANT/3RD RESPONDENT IN THE O.P.(M.V):
THE UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE, ARAFA BUILDING COURT ROAD, P.O.MANJERI,
PIN-676 121, REPRESENTED BY THE REGIONAL MANAGER, REGIONAL
OFFICE, UNITED INDIA INSURANCE CO. LTD., HOSPITAL ROAD,
ERNAKULAM
BY ADV. SMT. DEEPA GEORGE
RESPONDENTS/PETITIONERS 1 TO 4 IN THE O.P.(MV):
1 UMADEVI R., AGED 44 YEARS,
W/O.VINOD KUMAR(LATE) KARAMAYIL HOUSE, KALAYANTHANI.P.O.,
ALAKODE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN-685 588.
2 AISWARYA VINOD, AGED 18 YEARS,
D/O.VINOD KUMAR(NOW ATTAINED MAJORITY) KARAMAYIL HOUSE,
KALAYANTHANI.P.O., ALAKODE, THODUPUZHA TALUK, IDUKKI
DISTRICT, PIN-685 588.
3 RADHAMANI, AGED 69 YEARS,
W/O.K.R.GOPALAKRISHNAN NAIR, VADAKKEDATH KARAMAYIL HOUSE,
ALAKKOD, KALAYANTHANI.P.O., THODUPUZHA, IDUKKI DISTRICT,
PIN-685 588
4 K.R.GOPALAKRISHNAN NAIR, AGED 71 YEARS,
S/O.RAMAKRISHNAN NAIR, VADAKKEDATH KARAMAYIL HOUSE,
ALAKKOD, KALAYANTHANI.P.O., ALAKKODE, THODUPUZHA, IDUKKI
DISTRICT, PIN-685 588.
(IST PETITIONER IS THE WIFE, 2ND PETITIONER IS THE DAUGHTER,
3RD AND 4TH PETITIONER ARE THE PARENTS OF THE DECEASED VINOD
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KUMAR)
BY ADVS.
R1 & R2 BY SRI. PRAFIN JOSEPH ZACHARIA
R3, R5 & R6 BY SMT. RAJEE P MATHEWS
SRI.K.S.ARUN KUMAR
SRI.JUSTINE JACOB
SMT.BINDU MOHAN
SMT.AMRUTHA K P
SMT.AMRUTHA P S
SHRI.VIJAY SANKAR V.H.
SHRI.ARJUN KUMAR K.S.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
20.03.2025, THE COURT ON 21.03.2025 DELIVERED THE FOLLOWING:
M.A.C.A. No. 4663/2019 :3:
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JOHNSON JOHN, J.
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M.A.C.A No. 4663 of 2019
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Dated this the 21st day of March, 2025.
JUDGMENT
The 3rd respondent insurance company in O.P.(MV) No. 569 of
2019 on the file of the Motor Accident Claims Tribunal, Manjeri filed this
appeal challenging the quantum of compensation fixed by the Tribunal
under various heads.
2. The claim petition was filed by the legal representatives of the
deceased Vinod Kumar, who died in a motor vehicle accident on
03.09.2014. According to the claim petitioners, on 03.09.2014 while the
deceased was travelling in a jeep, car driven by the 1 st respondent in a
rash and negligent manner caused to hit the vehicle and thereby, the
deceased sustained serious injuries and subsequently, succumbed to his
injuries on the same day. The 2nd and 3rd respondents in the claim
petition are the owner and insurer of the offending vehicle.
3. Before the Tribunal, PW1 examined and Exhibits A1 to A12
were marked from the side of the petitioners and from the side of
respondents, Exhibits B1 and B2 were marked.
4. The Tribunal recorded a finding that the accident occurred
because of the negligence on the part of the 1 st respondent and that
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respondents 1 to 3 are jointly and severally liable to pay compensation
to the petitioners. The Tribunal awarded a total compensation of
Rs.95,10,000/- to the petitioners.
5. Heard the learned counsel for the appellant insurance company
and the learned counsel for the respondents/claim petitioners.
6. The learned counsel for the appellant argued that the Tribunal
fixed the annual income of the deceased as Rs.7,99,471/- based on
Exhibit A11 income tax return for the assessment year 2011-2012 and
the same is on the higher side. It is argued that claim petitioners have
not produced the income tax returns of the deceased relating to the
relevant period. It is brought to my notice that Exhibit A9 is the income
tax return for the assessment year 2009-2010 and Exhibit A10 is the
income tax return for assessment year 2010-2011.
7. A perusal of Exhibits A9 to A11 will clearly show that there is
considerable increase in the income of the deceased during the said
period. It is true that the claim petitioners failed to produce the income
tax returns of the deceased for the period after Exhibit A11; but, that
cannot be accepted as a reason for rejecting Exhibits A9 to A11 for the
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purpose of fixing the income of the deceased. Even though the learned
counsel for the appellant argued that in the absence of any authentic
copy of the income tax return filed for the period covering the date of
the accident, the Tribunal ought to have fixed a notional income without
considering Exhibits A9 to A11, I find that the said argument cannot be
accepted as the income tax returns filed for the periods prior to the
occurrence can also be considered as relevant material for fixing the
income of the deceased and therefore, I find that the Tribunal is justified
in accepting Exhibit A11 income tax return for assessment year 2011-
2012 for fixing the annual income of the deceased.
8. The learned counsel for the appellant pointed out that the gross
total income as per Exhibit A11 is 8,21,081/- and the total tax paid is
Rs.1,21,610/- and there occurred a clerical error when the Tribunal fixed
the annual income as Rs.7,99,471/-. After deduction of the tax from
gross total income in Exhibit A11, the amount will only be Rs.6,99,471/-.
Therefore, I find that the said amount can be accepted as the annual
income of the deceased for the purpose of calculating the compensation
for loss of dependency.
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9. The Tribunal made an addition of 25% towards future
prospects and applied the multiplier of 14 and also made one-third
deduction towards personal and living expenses of the deceased and the
same is not under challenge. When the compensation for loss of
dependency is calculated as per the revised annual income, the same
would come to Rs.81,60,497/- [(6,99,471 + 25%) x 14 x 2/3].
10. The learned counsel for the appellant argued that the Tribunal
granted Rs.10,000/- towards pain and sufferings of the deceased and
the same is not legally sustainable. 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.
11. 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
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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 this case, after the accident, the deceased succumbed to his injuries
on the date of accident itself and therefore, in view of the above legal
position, I find no reason to interfere with the compensation awarded by
the Tribunal towards pain and sufferings of the deceased.
12. The learned counsel for the appellant argued that the Tribunal
granted Rs.40,000/- towards loss of consortium and thereafter, granted
Rs.1,00,000/- towards loss of love and affection and that the
compensation for 'loss of love and affection' and 'loss of consortium'
cannot be granted under separate heads.
13. The decision of the Hon'ble Supreme Court in National
Insurance Co. Ltd. v Pranay Sethi [(2017) 16 SCC 680] and
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Jagdish v. Mohan [(2018) 4 SCC 571] 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 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.
14. In United India Insurance Co. Ltd. v. Satinder Kaur [2020
(3) KLT Online 1033], the Honourable Supreme Court held that loss of
love and affection is comprehended in loss of consortium and there is no
justification to award compensation towards loss of love and affection
under a separate head. The decision of the Hon'ble Supreme Court in
Shriram General Ins.Co.Ltd. v. Bhagat Singh Rawat (2023 KHC
Online 7244) and the decision of this Court in Kunjandy L. and
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Others v. Rajendran and Others [2019 KHC 962] shows that once
compensation under the head of consortium is awarded, claimants are
not entitled for further compensation under the head, loss of love and
affection.
15. In Sunita v. Vinod Singh [2025 KHC Online 6249], the
Hon'ble Supreme Court held thus:
"...With regard to the loss of love and affection, Pranay Sethi
(supra) grants Rs.40,000/- (Rupees Forty Thousand) per head with
escalation of 10% every three years for loss of consortium which has
been interpreted in Magma General Insurance Co. Ltd. v Nanu Ram,
(2018) 18 SCC 130 to include spousal, parental, and filial consortium.
Thus, there being five claimants the amount shall be (Rs.48,000/- x 5)
which comes to Rs.2,40,000/- (Rupees Two Lakhs and Forty
Thousand) payable under the head of loss of love and affection."
The claimants are the widow, child and parents of the deceased Vinod
Kumar. Thus, there being 4 claimants, the amount of consortium shall
be (48400 x 4), which comes to Rs.1,93,600/-.
16. In conclusion, the amount of compensation, as modified as a
result of the above discussion is encapsulated, in a tabular format herein
below:
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Compensation
Sl. Final Amount
Particulars awarded by the
No Payable
Tribunal (Rs.)
1 Loss of dependency 93,27,161.66 81,60,497/-
2 Loss of estate 15,000/- 18,150/-
3 Funeral expenses 15,000/- 18,150/-
4 Loss of consortium 40,000/- 1,93,600/-
5 Love and affection 1,00,000/- NIL
6 Transport to hospital 1,500/- 1,500/-
7 Damage to clothing and articles 1,000/- 1,000/-
8 Pain and sufferings 10,000/- 10,000/-
Total amount Payable 95,09,661.66 84,02,897/-
17. Accordingly, the total amount of compensation payable to the
petitioners is determined as Rs.84,02,897/-.
In the result, this appeal is allowed in part, and the claim
petitioners are allowed to recover the compensation amount of
Rs.84,02,897/- (Rupees Eighty Four Lakhs Two Thousand Eight Hundred
and Ninety Seven only) with interest at the rate of 9% per annum from
the date of the claim petition till the date of realization with
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.
JOHNSON JOHN,
JUDGE.
Rv
