Kerala High Court

The New India Assurance Co.Ltd vs Ajithkumar.V on 27 October, 2025

                                               2025:KER:80047



           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

 MONDAY, THE 27TH DAY OF OCTOBER 2025 / 5TH KARTHIKA, 1947

                     MACA NO. 1647 OF 2015

        AGAINST THE AWARD DATED 10.02.2015 IN OPMV NO.250 OF

2013 OF    MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA

APPELLANTS/PETITIONERS:

    1      MARIAM JACOB
           AGED 31 YEARS
           W/O.LATE ARUN PAUL THOMAS,
           RESIDING AT KUNNATH HOUSE IN KUPPADY VILLAGE OF
           SULTHAN BATHERY TALUK, WAYNAD DISTRICT.

    2      THOMAS PAUL (MINOR)
           AGED 4 YEARS
           DATE OF BIRTH 15-7-2010,
           S/O.LATE ARUN PAUL THOMAS,
           RESIDING AT KUNNATH HOUSE IN KUPPADY VILLAGE OF
           SULTHAN BATHERY TALUK,
           WAYNAD DISTRICT.
           (2ND APPELLANT BEING A MINOR IS REPRESENTED BY
           THE 1ST APPELLANT, GUARDIAN AND MOTHER).
    3      PROF.THOMAS PAUL
           AGED 60 YEARS, F/O.LATE ARUN PAUL THOMAS,
           RESIDING AT KUNNATH HOUSE IN KUPPADY VILLAGE OF
           SULTHAN BATHERY TALUK, WAYNAD DISTRICT.

    4      SMT.ANNIE THOMAS PAUL
                                             2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

                             2

         AGED 60 YEARS, M/O.LATE ARUN PAUL THOMAS,
         RESIDING AT KUNNATH HOUSE IN KUPPADY VILLAGE OF
         SULTHAN BATHERY TALUK, WAYNAD DISTRICT.


         BY ADVS.
         SRI.K.JAJU BABU (SR.)
         SRI.JIKKU SEBAN GEORGE
         SMT.M.U.VIJAYALAKSHMI




RESPONDENTS/RESPONDENTS:

    1    SRI AJITHKUMAR V
         S/O.APPUTY, RESIDING AT VALATHIL HOUSE,
         CHETHUKADAV, KUNNAMANGALAM, KOZHIKODE, (DRIVER OF
         KL-15/6509 BUS)

    2    THE MANAGING DIRECTOR
         KSRTC, THIRUVANANTHAPURAM (RC OWNER OF THE BUS)

    3    THE NEW INDIA ASSURANCE COMPANY LIMITED
         DIVISIONAL OFFICE-II, THIRUVANANTHAPURAM.


         BY ADVS.
         SRI.R.BINDU (SASTHAMANGALAM)
         SHRI.ALEX ANTONY SEBASTIAN P.A.



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 27.10.2025, ALONG WITH MACA.2121/2015, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

                               3


           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

 MONDAY, THE 27TH DAY OF OCTOBER 2025 / 5TH KARTHIKA, 1947

                     MACA NO. 2121 OF 2015

     AGAINST THE AWARD DATED 10.02.2015 IN OPMV NO.250 OF

13 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA

APPELLANT/3RD RESPONDENT:

           THE NEW INDIA ASSURANCE CO.LTD
           REGIONAL OFFICE, KANDAMKULATHY TOWERS,
           M.G.ROAD, ERNAKULAM,
           REPRESENTED BY ITS DULY AUTHORISED OFFICER.


           BY ADV SRI.VPK.PANICKER


RESPONDENTS/RESPONDENTS 1 & 2 AND PETITIONERS:

    1       AJITHKUMAR.V
            S/O.APPUTTY, RESIDING AT VALATHIL HOUSE,
            CHETHUKADAVU, KUNNAMANGALAM, KOZHIKODE 673 571.

    2       THE MANAGING DIRECTOR
            K.S.R.T.C, THIRUVANANTHAPURAM 695 001.

    3       MARIAM JACOB
            W/O.LATE ARUN PAUL THOMAS, RESIDING AT KUNNATH HOUSE,
                                             2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

                             4

          IN KUPPADY VILLAGE OF SULTHAN BATHERY TALUK,
          WAYANAD DISTRICT 673 592.

    4     THOMAS PAUL
          (MINOR) S/O.LATE ARUN PAUL THOMAS,
          REPRESENTED BY MOTHER AND GUARDIAN, MARIAM JACOB,
          PETITIONER NO.1 IN THE PETITION

    5     PROF. THOMAS PAUL
          F/O.LATE ARUN PAUL THOMAS, RESIDING AT KUNNATH HOUSE,
          IN KUPPADY VILLAGE OF SULTHAN BATHERY TALUK,
          WAYANAD DISTRICT 673 592.

    6     SMT.ANNIE THOMAS PAUL
          M//O.LATE ARUN PAUL THOMAS,
          RESIDING AT KUNNATH HOUSE, IN KUPPADY VILLAGE OF
          SULTHAN BATHERY TALUK,
          WAYANAD DISTRICT - 673 592.


         BY ADVS.
         SRI.JIKKU SEBAN GEORGE
         SRI.K.JAJU BABU (SR.)
         SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC
         SMT.M.U.VIJAYALAKSHMI
         SHRI.ALEX ANTONY SEBASTIAN P.A.



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 27.10.2025, ALONG WITH MACA.1647/2015, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                    2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

                               5



                    JUDGMENT

MACA Nos.1647 of 2015 and 2121 of 2015

These appeals are filed by the claimants and the

insurance company involved in the accident. Since these two

appeals arise from the same award in O.P.(MV) No.250/2013 on

the file of the Motor Accidents Claims Tribunal, Wayanad,

Kalpetta, the appeals are heard together and are disposed of by

this judgment. M.A.C.A.No.1647 of 2015 is filed by the

appellants/claimants dissatisfied with the quantum of

compensation awarded as well as challenging the finding of

30% contributory negligence on the part of the claimants,

whereas, M.A.C.A.No.2121 of 2015 is filed by the appellant/3rd

respondent insurer, challenging the quantum of compensation

awarded. The parties are hereinafter referred to as arrayed in

the O.P.(MV).

2. The brief facts of the case is as follows: On 16.09.2012, 2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

at about 4.30 p.m., while the deceased was travelling in a car

bearing registration No.KL-12D/1919 from Kalpetta to Sulthan

Bathery, a K.S.R.T.C. bus bearing registration No.KL-15/6509

driven by the first respondent in a rash and negligent manner

hit against the car and as a result of which the deceased

sustained serious injuries and succumbed to the injuries on the

way to hospital. The claimants who are the legal heirs of the

deceased approached the tribunal claiming a total

compensation of ₹2,06,73,272/-, which is limited to

₹2,06,50,000/-.

3. The first and second respondents, the driver and the

registered owner of the offending vehicle respectively, filed a

joint written statement, contending that the accident occurred

due to rash and negligent driving of the deceased. The third

respondent - insurer filed a written statement admitting the

insurance policy but disputing the liability and quantum of

compensation claimed. Before the tribunal, Exts.A1 to A26

were marked and PW1 and RWs. 1 to 3 were examined. The 2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

tribunal, after analysing the pleadings and material on record,

found 30% contributory negligence on the part of the deceased,

and awarded a sum of ₹1,25,66,901/- (70% of 1,79,52,716) as

compensation under different heads with interest @ 9% per

annum from the date of petition till realization. Dissatisfied with

the quantum of compensation as well as challenging the finding

of 30% contributory negligence on the part of the claimants and

challenging the quantum of compensation awarded, the

claimants and the insurer have come up with the above appeals

respectively.

4. Heard Adv. K. Jaju Babu, the learned senior counsel

appearing for the claimants, the learned Standing Counsel for

the K.S.R.T.C. and the learned Standing Counsel appearing for

the insurance company.

5. The learned senior counsel appearing for the claimants

submitted that the tribunal has found 30% contributory

negligence on the part of the deceased Arun Paul Thomas, who

was the driver of the car, finding that the car was on the wrong 2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

side of the road, which is erroneous. The learned senior counsel

further submitted that the charge sheet was drawn against the

driver of K.S.R.T.C. and no charge sheet was drawn against the

driver of the car. It is further submitted that the tribunal was

under a mistaken impression that the car was proceeding in the

middle of the road and was not maintaining its correct side of

the road. It is contended in ground (b) of the appeal filed by the

insurance company that "the width of the road is 8.5 metres

and the accident occurred at 4 metres south of the northern tar

end of the road and in ground (c), it is contended that "the

K.S.R.T.C. bus was on its correct side, while the car had

proceeded beyond the centre portion of the road". The learned

senior counsel submitted that the grounds of appeal raised by

the insurer are based on the incorrect presumption that the

accident occurred on the correct side of the bus. This

assumption is wholly erroneous, as it is admitted that the

accident took place on the correct side of the car, and not the

bus. Hence, the finding of 30% contributory negligence 2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

attributed on the part of the driver of the car is liable to be set

aside.

6. The learned Standing Counsel appearing for the

insurance company, on the other hand, submitted that the bus

was ascending a slope and the car was descending a slope at

the time of accident. As per Rule 25 of the Rules of the Road

Regulations Act, 1989, the vehicle which was descending the

slope ought to have been more cautious compared to the

vehicle ascending the slope. The learned Standing Counsel

appearing for the insurer also relied on the evidence of RWs. 1

to 3, the driver of the bus and the passengers in the bus. They

deposed before the tribunal that the accident occurred due to

negligence on the part of the driver of the car since he was on

the wrong side. The learned Standing Counsel for the insurer

also submitted that the spot of accident as indicated in the

scene mahazar cannot be relied on, since there is evidence

from the eye witnesses, stating that the accident occurred on 2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

the wrong side of the car. Hence, the finding of 70%

contributory negligence attributed on the part of the driver of

the K.S.R.T.C., is not correct and needs to be interfered with.

7. I have considered the rival contentions raised by both

sides.

8. Admittedly, the car was moving from the east to west

direction and the K.S.R.T.C bus was coming from the west to

east direction. As per the award, the documents produced, and

the depositions of PW1 and RWs 1 to 3, it is evident that the

bus was ascending a hill and the car was descending the same

hill. As per Ext.A4 scene mahazar, the width of the road is 8.5

metres. The scene mahazar indicated that a line was drawn

with white paint in the middle of the road, suggesting that it is

a two track road. The spot of accident as per the scene mahazar

is 4 metres away from the southern tarred end of the road.

Accordingly, as per the scene mahazar, the accident was on the

right side of the car and wrong side of the bus. The tribunal, 2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

while passing the award, found that the car was proceeding

right on the middle of the road and was not keeping its correct

side. It is noted that a line was drawn with white paint in the

middle of the road, indicating separate tracks for ascending and

descending vehicles. The line is drawn on the road leaving

sufficient space for the movement of the vehicles coming from

the opposite directions. The learned Standing Counsel

appearing for the insurer submitted that the grounds raised in

the appeal, particularly ground (B), incorrectly describes the

spot of accident. It is admitted that the accident occurred on

the correct side of the car and not on the correct side of the

bus. The insurer failed to examine the investigating officer, who

drew the Ext.A8 charge sheet. Ext.A8 charge sheet clearly

supports the case of the claimants, which shows that there was

negligence on the part of the driver of the K.S.R.T.C bus in

causing the accident. RWs 2 to 3, stated to be the passengers in

the bus, cannot say that there was negligence on the part of the

car driver alone. The tribunal relied on the scene mahazar and 2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

found that the accident was on the wrong side of the car, which

appears to be incorrect. The court cannot rely solely on the

scene mahazar for deciding the case, since both the scene

mahazar and the charge sheet were drawn up against the

driver of the K.S.R.T.C. The insurer also has a case that the

accident occurred 4 metres south of the northern tar end of the

road. Hence, the evidence of RWs.1 to 3 that the car was on the

wrong side of the road, cannot be believed. The road had a

width of 8.5 metres and the accident occurred within the line

drawn in the middle of the road. Since the accident occurred to

the south of the line drawn on the middle of the road, the

finding of 30% contributory negligence on the part of the driver

of the car, cannot be sustained. The driver of the K.S.R.T.C.

moved to the wrong side and collided with the car. Therefore, I

find that the negligence was on the part of the driver of the

K.S.R.T.C. and not with the driver of the car. Accordingly, the

finding of 30% contributory negligence on the part of the driver

of the car, is liable to be set aside.

2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

9. The learned counsel for the appellants/claimants and

the learned Standing Counsel appearing for the insurance

company mainly challenged the quantum of compensation

under the following heads:

I. Notional income

The learned Standing Counsel appearing for the insurance

company submitted that the tribunal has fixed the income as

₹88,816/- and deducted ₹81,197/- towards the income tax,

which according to the counsel, is incorrect. The learned senior

counsel appearing for the claimants submitted that he was

working as a sales manager in Tata Motors and was drawing a

gross monthly salary of ₹88,816/-. It is argued that the tribunal

has rightly deducted the income tax and taken an amount of

₹9,84,859/- as his annual income. The learned Standing

Counsel appearing for the insurance company submitted that as

per Ext.A2, Form No.16, the net salary is shown as ₹9,32,137/-

and by deducting the tax payable for the year, which would be

₹81,197/-. The total annual income after deducting tax payable 2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

is ₹8,50,940/-. Hence, the monthly income would be ₹70,912/-.

I find force in the said argument.

On a perusal of Ext.A2, this court finds merit in the

contention raised by the learned Standing Counsel appearing

for the insurance company. Considering the same, the income

of the deceased is re-fixed as ₹70,912/-.

II. Loss of dependency

Since the notional monthly income is refixed at ₹70,912/-

per month, the compensation payable under the head loss of

dependency has to be recalculated. The learned senior counsel

appearing for the appellants/claimants submits that going by

the judgment in Raju Sebastian v. United India Insurance

Co.Ltd [(2021) 6 KLT 136], this Court has held that for a Govt.

employee at least 50% of the monthly salary as on the date of

accident has to be taken for awarding compensation for loss of

dependency. I find force in the submission of the learned senior

counsel. Considering the afore facts and following the judgment

in Raju Sebastian (supra), I deem it appropriate to add 50% 2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

future prospectus to the monthly income, which would come to

₹1,06,368/- (70,912 x 50/100 + 70,192).

The learned Standing Counsel appearing for the insurance

company submitted that the tribunal had deducted the personal

and living expenses of the deceased as 1/4th instead of 1/3rd. It

was argued that the third respondent, the father of the

deceased, was a professor, aged 60 years and was not

dependent on the deceased. Hence, the wife, minor child and

the mother can be considered as the dependent of the deceased

and accordingly, 1/3rd has to be deducted towards the

personal and living expenses of the deceased.

The learned senior counsel appearing for the claimants,

however, submitted that although the father was a professor by

profession, he was a retired professor, who was dependent on

his son, at the time of the incident. The senior counsel further

contended that parents were dependent on the deceased son,

since both of them were senior citizens.

2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

There is no dispute to the fact that the parents of the

deceased were senior citizens. The father of the deceased was a

professor. On a perusal of the written statement as well as the

additional written statement filed by the insurer before the

tribunal, no contention was raised that the father was not

dependent. It is for the first time, in this appeal, that the

insurer has raised the said contention and thus denying the

claimants an opportunity to establish it before the tribunal. As

age advances, parents often become dependent on their

children for both financial and emotional support. The deceased

Arun Paul Thomas was well placed in life and the loss of his son

would significantly impact his expectations in life, especially

during his old age. This court in Chaithanaya v. New India

General Insurance Co. Ltd., Kottayam [2025 (3) KHC 21],

has also taken the very view. Since, the specific contention was

not taken by the insurer before the tribunal, I am not inclined

to accept the argument of the learned Standing Counsel for the

insurer that the father was not dependent. Accordingly, I find 2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

that since there were four legal heirs, the deduction to be made

towards the personal and living expenses of the deceased is

1/4th and not 1/3rd. Thus, following the judgments in National

Insurance Co.Ltd. v. Pranay Sethi [2017(4) KLT 662(SC)]

and Sarla Verma v. Delhi Transport Corporation [2010(2)

KLT 802(SC)], the total compensation payable under the said

head is ₹1,53,16,992/- (1,06,368 x 12 x 16 x 3/4). The tribunal

had awarded an amount of ₹1,77,22,716/- under the afore head.

Accordingly, there will be a deduction of ₹24,05,724/- under

the said head.

III. Funeral expenses

The learned Standing Counsel for the insurance company

submitted that the tribunal has awarded an amount of

₹25,000/-, whereas the claimants are entitled only for an

amount of ₹15,000/-. Going by the judgment in Pranay Sethi

(supra), I find that the claimants are entitled for an amount of

₹15,000/- under the head loss of estate. Accordingly, there will 2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

be a deduction of ₹10,000/- from the afore head.

IV Loss of estate

It is seen that the tribunal has awarded only an amount of

₹5,000/- towards loss of estate. Following the judgment in

Pranay Sethi (supra), the compensation ought to have been

₹15,000/- and further, 10% enhancement has to be given in

every three years after 2017. Thus, following the judgment in

Pranay Sethi (supra), I deem it appropriate to award to the

claimants a total compensation of ₹18,150/- towards loss of

estate. Hence, the claimants will be entitled to get an additional

compensation of ₹13,150/- (Rupees Thirteen Thousand One

Hundred and Fifty Only) under this head.

V. Loss of consortium/loss of love and affection

The learned senior counsel appearing for the claimants

submitted that towards the head loss of consortium, the

tribunal had granted only an amount of ₹1,00,000/-. Since

there are four legal heirs, the claimants are entitled to get a 2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

total compensation of ₹1,60,000/- under the afore head,

following the judgment in Pranay Sethi (Supra). However, the

learned Standing Counsel appearing for the insurance company

submitted that an amount of ₹1,00,000/- was awarded by the

tribunal under the head loss of love and affection. In New India

Assurance Company v. Somwati and others [2020 (5) KLT

OnLine 1198 (SC)], it has been held that once compensation is

awarded under the head loss of consortium, no amount shall be

awarded under the head loss of love and affection, as it would

amount to duplication of compensation. Accordingly, I delete

the compensation of ₹1,00,000/- granted under the head loss

of love and affection and I award an additional amount of

₹60,000/- (Rupees Sixty Thousand Only) under the head loss of

consortium.

10. Though the claimants as well as the insurance

company claims enhancement as well as challenges the

enhancement of compensation under other heads, on a perusal 2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

of the records available, I am not inclined to interfere with the

compensation awarded by the tribunal under other heads since

it appears to be just and reasonable.

11. Thus, the impugned award of the tribunal is modified

as follows:

                                           Amount          Amount
Sl.                          Amount
                                         awarded by       modified in      Total
No.     Head of Claim        claimed
                                         the tribunal      appeal       compensation
                             (in Rs.)
                                           (in Rs.)        (in Rs.)
      Transportation         10,000            -               -              -

      expenses
      Damage to
2                             5,000           -                -              -
      clothing
      Loss of
3                           1,00,000      1,00,000         60,000         1,60,000
      consortium
      Loss of love and
4                           1,00,000      1,00,000       (-1,00,000)      Deleted
      affection
5     Medical expenses       10,000
      Funeral
6                            15,000        25,000         (-10,000)        15,000
      expenses
      Loss of              2,03,83,272   1,77,22,716    (-24,05,724)    1,53,16,992

      dependency
      Loss of estate            -          5,000           13,150          18,150

      Compensation for       50,000

      pain and suffering
            Total          2,06,73,272   1,79,52,716     (-24,42,574)   1,55,10,142
       (claim limited      2,06,50,000
             to)
                                                   2025:KER:80047

MACA NOS. 1647 AND 2121 OF 2015

Accordingly, both the appeals are allowed in part. The

finding of 30% contributory negligence by the tribunal on the

part of the driver of the car is set aside. Hence, the insurance

company is directed to pay the total award amount passed by

this Court in these appeals. Thus, the appellants/claimants are

awarded a total compensation of ₹1,55,10,142/- (Rupees One

Crore Fifty Five Lakh Ten Thousand One Hundred and Forty

Two Only) with interest @ 9% per annum from the date of

petition till realization with proportionate cost after deducting

an amount of ₹24,42,574 from the impugned award. The

insurance company shall deposit the said amount together with

interest and costs within a period of two months from the date