Kerala High Court
The Oriental Insurance Company Limited vs M.G.Ajayakumar on 21 May, 2025
MACA 2236/2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 21ST DAY OF MAY 2025 / 31ST VAISAKHA, 1947
MACA NO. 2236 OF 2014
OPMV NO.324 OF 2013 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL, THODUPUZHA
APPELLANT/3RD RESPONDENT
THE ORIENTAL INSURANCE COMPANY LIMITED
TRIPUNITHURA, NOW REPRESENTED BY ITS ASSISTANT
MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI -
18.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENTS/PETITIONERS
1 M.G.AJAYAKUMAR
S/O GOPINATHAN NAIR, MORPPILLIL HOUSE,
MANAKKADU PO, THODUPUZHA TALUK, PIN - 685 320.
2 BABU M.G
S/O GOPINATHAN NAIR, MATHAPITHAMANDIR,
KOLLAPPUZHA, ATTINGAL PO, PIN - 695 101.
3 KUMARI BABY
W/O GOPALAKRISHNAN NAIR, VELUTHEDATHU PARAMBIL
HOUSE, KAPPU KARA, MANJALLOOR VILLAGE,
MUVATTUPZHA TALUK, PIN - 686 520.
4 LALU M.G
S/O GOPINATHAN NAIR, MORPPILLIL HOUSE, KAPPU
KARA, MANJALLOOR VILLAGE, MUVATTUPUZHA TALUK,
PIN - 686 510.
5 M.G. ANIL KUMAR
S/O GOPINATHAN NAIR, MORPPILLIL HOUSE, KAPPU
MACA 2236/2014
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KARA, MANJALLOOR VILLAGE, MUVATTUPUZHA TALUK,
PIN - 686 510.
6 SMT. MAYA M.G
W/O SHAJI, PELARATTU HOUSE, SARAMKUTHY KARA,
KUDAYATHOOR VILLAGE, THODUPUZHA TALUK, PIN -
685 320.
7 MISS. SREELAKSHMI S. (MINOR)
REP. BY HER MOTHER SMT. MAYA M.G, PELARATTU
HOUSE,SARAMKUTHY KARA, KUDAYATHOOR VILLAGE,
THODUPUZHA TALUK, PIN - 685 320.
8 MISS SREENADHA (MINOR)
REP. BY HER MOTHER SMT. MAYA M.G., PELARATTU
HOUSE, SARAMKUTHY KARA, KUDAYATHOOR VILLAGE,
THODUPUZHA TALUK - 685 320.
BY ADVS.
SMT.C.SEENA
SRI.P.P.THAJUDEEN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 3.4.2025, THE COURT ON 21.05.2025
DELIVERED THE FOLLOWING:
MACA 2236/2014
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JUDGMENT
Dated : 21st May, 2025
The 3rd respondent in OP(MV).No.324/2013 on the file of the Motor
Accidents Claims Tribunal, Thodupuzha is the appellant. The above OP was
filed by the siblings and the children of a deceased sibling of one Manoj who
died in a motor accident that occurred on 19.2.2013. (For the purpose of
convenience, the parties are hereafter referred to as per their rank before the
Tribunal).
2. According to the petitioners on 19.2.2013 at about 1.45 a.m
while the deceased Manoj was riding a motorcycle along the Thodupuzha -
Muvattupuzha road, a lorry bearing registration No.KL 7E-5271 driven by the
1st respondent in a rash and negligent manner hit against the motorcycle and as
a result of which he fell down, sustained serious injuries and succumbed to the
injuries on the same day.
3. The 2nd respondent was the owner and 3 rd respondent is the
insurer of the offending lorry. According to the petitioners, the accident
occurred due to the negligence of the driver of the offending vehicle. The
quantum of compensation claimed in the O.P. was Rs.32,00,000/-
4. The insurance company filed a written statement, admitting the
accident as well as policy, but disputing the negligence on the part of the
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driver of the offending vehicle and also contending that the compensation
claimed by the petitioners is so excessive.
5. The evidence in the case consists of the oral testimony of PW1
and documentary evidence Exts.A1 to A11. 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.28,77,455/- and directed the insurer to pay the same.
7. Aggrieved by the quantum of compensation awarded by the
Tribunal, the 3rd respondent preferred this appeal.
8. Now the point that arises for consideration is the following:
Whether the quantum of compensation awarded by the Tribunal is just
and reasonable?
9. Heard Sri.P.Jacob Mathew, the learned Standing Counsel appearing
for the Insurance Company, and Smt.C.Seena, the learned Counsel for the
petitioners.
10. The Point: In this case the accident as well as valid policy of the
offending vehicle are admitted. One of the arguments advanced by the
learned counsel for the 3rd respondent/appellant is that the claimants are the
siblings and legal representatives of the sibling of deceased Manoj and as
such, they cannot be treated as the dependents of the deceased. The learned
Standing Counsel further contended that the Tribunal has added 50% of the
income towards future prospects and deducted only 50% of the income
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towards personal and living expenses, which is not correct. It was also
contended that the Tribunal has awarded Rs.25,000/- towards funeral expense
which is on the higher side and Rs.1,20,000/- was awarded towards love and
affection, which cannot be allowed.
11. On the other hand, the learned counsel for the petitioners would
argue that as per Ext.A8 salary certificate, the monthly salary of the deceased
who was working in the Mathrubhoomi Daily was Rs.21,743/- and as such,
the monthly income fixed by the Tribunal at Rs.20,000/- is on the lower side.
The learned counsel, relying upon the evidence of PW1, would argue that the
siblings were depending upon the deceased and as such, they are to be treated
as the dependants of the deceased. Therefore, according to the learned counsel,
the Tribunal was justified in deducting only one-half of the income towards
personal and living expense.
12. It is true that generally the major siblings will not be treated as
dependents of the deceased unless there is evidence to the contrary (The New
India Assurance Company Limited. v. Anand Pal and Others, 2024 ACJ
6). In the decision in Sarla Verma and Others v. Delhi Transport
Corporation and Others, (2009) 6 SCC 121, also the Apex Court held that in
the absence of evidence to the contrary, brothers and sisters will not be
considered as dependents because they will either be independent and earning,
or married, or be dependent on the father.
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13. In the decision in Joseph v. Giji Varghese and Others, 2009
(4) KLT 199, a Division Bench of this Court held that in the case of unmarried
victims survived by siblings alone two-third of the earning is to be deducted
towards personal expenses and one-third of the earning can be computed as
loss of estate and that in such cases, the legal heirs of the deceased are entitled
to get only one-third of the amount towards loss of estate, instead of loss of
dependency. In paragraph 4 the Division Bench held that :
"Even though there is no proof regarding quantum of income derived by the
deceased, it can be presumed that the deceased was earning some amount
out of agricultural operations. If that be so, whatever surplus amount, which
will remain after meeting personal expenses of the deceased, would have
been his savings which ultimately could have developed upon his sibling
(legal heirs) as his estate. Taking view of the matter in this angle, we are of
the opinion that the Tribunal ought to have granted compensation under the
head of loss of estate."
14. In the decision in Elamma and others v. ICICI Lombard
General Insurance (MACA 1502 of 2015) a learned Single Judge of this
court relying upon the decision in Joseph (supra) held that married sisters of
the deceased are not entitled to get compensation under the head loss of
dependency but they can claim compensation on the head loss of estate. It was
also held that in such cases, loss of estate can be calculated using the same
method used for computing loss of dependency.
15. In the decision in Sijo Jose and Others v. Rejender Kumar
Saini and Others (MACA 2092/2009), another learned Single Judge of this
Court relying upon various decisions of the Apex Court and this Court also
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held that the legal heirs of the deceased who are not depending on him can
claim compensation for loss of estate after deducing two-third of the income
towards the personal and living expense of the deceased.
16. It is true that in this case one of the siblings of the deceased was
examined as PW1. However, during the cross-examination it is revealed that
she had been living along with her husband in the residence of her husband.
Petitioners 1 to 5 are elder siblings of the deceased, claimants 6, 7 and 8 are
the wife and minor children of a pre-deceased brother of the deceased. In the
light of the above decisions, it is to be held that in this case there is no reliable
evidence to prove that the claimants are the dependents of the deceased.
However, since they were the legal heirs of the deceased they are entitled to
inherit the estate of the deceased and as such in this case, the compensation
payable to the claimants on the head loss of estate is to be taken as one-third of
the loss of dependency on account of the death of the deceased.
17. From Ext.A8 salary certificate issued by the General Manager,
HRD, Mathrubhoomi, Printing and Publishing Co.Ltd, it can be seen that the
deceased was a permanent employee working as Attender in the
Mathrubhoomi, Kottayam and his gross salary was Rs.21,743/-. Since he was
aged 28 at the time of the accident and he was a permanent employee, 50% of
the income is to be added towards future prospects and the multiplier to be
applied is 17. Therefore, one-third of the amount payable to the petitioners on
the head loss of estate will come to Rs.22,17,786/-.
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18. In addition to the same, the petitioners are entitled to get the
compensation on conventional heads as provided in the decision in National
Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]. The Tribunal has
awarded Rs.10000/- towards loss of estate, Rs.25,000/- towards funeral
expenses and Rs.1,20,000/- towards love and affection. No amount was
awarded towards loss of consortium.
19. In the light of the decision in Pranay Sethi (supra), the
appellants are entitled to get a sum of Rs.15,000/- towards funeral expenses.
Therefore, towards funeral expense they are entitled to get a sum of
Rs.18,150/- each. Since the petitioners are not dependents of the deceased,
they are not entitled to get any compensation on the head loss of consortium.
20. The petitioners are the siblings and legal representatives of the
sibling of the deceased. Therefore, though they are not entitled to get any
compensation on the head loss of consortium, they are entitled to get
compensation for loss of love and affection on account of the untimely death
of their minor sibling at the age of 28. Therefore, a sum of Rs.1,20,000/-
awarded on the head 'loss of love and affection' is retained.
21. Towards the head 'pain and sufferings', the Tribunal has
awarded Rs.15000/- which according to the learned counsel for the petitioners,
is on the lower side. The deceased died in this case on the date of the accident.
In the above circumstances, I hold that the compensation awarded towards
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pain and suffering is on the lower side, and hence, it is enhanced to
Rs.25000/-.
22. No change is required, in the amounts awarded on other heads,
as the compensation awarded on those heads appears to be just and reasonable.
23. Therefore, the petitioners are entitled to get a total compensation
of Rs.23,88,391/- as modified and recalculated above and given in the table
below, for easy reference:
Sl.
No. Head of Claim Amount awarded by Amount Awarded in
Tribunal (in Rs.) Appeal (in Rs.)
1 Loss of dependency 2700000 Nil
2 Transportation expense 4900 4900
3 Funeral expenses 25000 18150
4 Damage to clothing 1000 1000
5 Pain and suffering 15000 25000
6 Medical expenses 1555 1555
7 Loss of love and affection 120000 120000
8 Loss of estate 10000 2217786
Total 2877455 23,88,391
Amount reduced- Rs. 4,89,064
24. In the result, this Appeal is disposed of, and the 3 rd respondent is
directed to deposit a total sum of Rs.23,88,391/- (Rupees twenty three lakh
eighty eight thousand three hundred and ninety one only), less the amount
already deposited, if any, along with interest as ordered by the Tribunal, from
the date of the petition till realisation/deposit, within a period of two months
from today.
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25. 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
Mrcs/21.4.25
