Kerala High Court

Jessy Wilson vs Santhosh, S/O.Damodaran on 28 October, 2025

                                                             2025:KER:80750

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

            THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

    TUESDAY, THE 28TH DAY OF OCTOBER 2025 / 6TH KARTHIKA, 1947

                           MACA NO. 1088 OF 2015

        AGAINST THE AWARD DATED IN OPMV NO.640 OF 2008 OF ADDITIONAL

DISTRICT    COURT   &   SESSIONS   COURT   -   IV/RENT   CONTROL   APPELLATE

AUTHORITY, PATHANAMTHITTA / IV ADDL. M.A.C.T.

APPELLANT/3RD RESPONDENT:

             THE ORIENTAL INSURANCE CO.LTD.
             RANNY, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL
             OFFICE, ERNAKULAM NORTH, KOCHI-18.


             BY ADVS.
             SRI.GEORGE CHERIAN (SR.)
             SMT.K.S.SANTHI



RESPONDENTS/CLAIMANTS 1 TO 3 AND 5:

    1        JESSY WILSON
             MADATHIL VADAKKETHIL, ANGADICAL NORTH P.O, KAIPATOOR
             PIN.689 648.

    2        JISNA MARIAM DO.WILSON
             MADATHIL VADAKKETHIL, ANGADICAL NORTH P.O, KAIPATOOR
             PIN.689 648.

    3        LISMI MARIAM WILSON DO.WILSON
             MADATHIL VADAKKETHIL, ANGADICAL NORTH P.O, KAIPATOOR
             PIN.689 648.

    4        KUNJAMMA SAMUEL
             W/O. K.SAMUEL, MADATHIL VADAKKETHIL, ANGADICAL NORTH
             P.O, KAIPATOOR PIN.689 648.

    5        SANTHOSH SO.DAMODHARAN
             PALACKAL KUTTIYIL HOUSE, VEDARAPLAVU P.O,
                                             2025:KER:80750
                                2
MACA NOS. 1088 OF 2015 & 2032 OF 2015



            THAMARAKKULAM, PIN. 690 505.

     6      LALJIMON
            MANGALATHU HOUSE, NOORANADU P.O, MAVELIKKARA,
            PIN.690504


            BY ADV SHRI.A.N.SANTHOSH

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 28.10.2025, ALONG WITH MACA.2032/2015,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                              2025:KER:80750
                                3
MACA NOS. 1088 OF 2015 & 2032 OF 2015




           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

     THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

  TUESDAY, THE 28TH DAY OF OCTOBER 2025 / 6TH KARTHIKA,

                              1947

                    MACA NO. 2032 OF 2015

         AGAINST THE AWARD DATED 10.12.2014 IN OPMV NO.640

OF 2008 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -

IV/RENT CONTROL APPELLATE AUTHORITY, PATHANAMTHITTA / IV

ADDL. M.A.C.T.

APPELLANTS/PETITIONERS:

     1       JESSY WILSON
             W/O.WILSON MADATHIL VADAKKETHIL, ANGADICHAL NORTH PO,
             KAIPATOOR.

     2       JISNA MARIAM WILSON
             D/O.WILSON, -DO- -DO-

     3       LISMI MARIAM WILSON
             D/O.WILSON, -DO- -DO-

     4       KUJAMMA SAMUEL
             W/O.K.SAMUEL, -DO- -DO-


             BY ADV SHRI.A.N.SANTHOSH

RESPONDENTS/RESPONDENTS:

     1       SANTHOSH, S/O.DAMODARAN
             S/O.DAMODARAN, PALAKKAL KUTTIYIL HOUSE, VEDARAPLAVU
             PO, THAMARAKULAM 690 505.

     2       LALJIMON
             MANGALATH HOUSE, NOORANAD PO, MAVELIKKARA 690 504.
                                             2025:KER:80750
                                4
MACA NOS. 1088 OF 2015 & 2032 OF 2015




     3      THE BRANCH MANAGER
            ORIENTAL INSURANCE CO. LTD, NEDUVELIL BUILDINGS,
            PAZHAVANGADI PO, RANNI 689 672.


            BY ADVS.
            SHRI.ALEX K.JOHN
            SHRI.V.VINAR
            SRI.GEORGE CHERIAN (SR.)
            SMT.LATHA SUSAN CHERIAN
            SMT.K.S.SANTHI


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 28.10.2025, ALONG WITH MACA.1088/2015, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                 2025:KER:80750
                                5
MACA NOS. 1088 OF 2015 & 2032 OF 2015



                          JUDGMENT

These appeals arose from the impugned award dated

10.12.2014 in OP(MV) No.640 of 2008 on the files of the

Additional District & Sessions Judge Court-IV and Additional

Motor Accidents Claims Tribunal, Pathanamthitta. MACA No.

1088 of 2015 is filed by the third respondent insurer

challenging the liability, whereas MACA No.2032 of 2015 is

filed by the claimants, dissatisfied with the quantum of

compensation awarded by the tribunal.

2. Since the parties and the cause of action are the

same, the appeals are heard together and are being disposed

of by this judgment. For brevity, the parties are referred to as

they are arrayed before the tribunal.

3. According to the claimants, on 23.02.2008 at about

10.45 am., while the deceased Wilson was driving an auto

rickshaw bearing Reg.No.KL-3-L-6084 through Pandalam-

Pathanamthitta road, a stage carriage bearing Reg.No.KL

02/M-7193 driven by the 1st respondent in a rash and

negligent manner hit upon the autorickshaw. As a result, the

deceased sustained serious injuries and later succumbed to

the injuries. The claimants, who are the legal heirs of the 2025:KER:80750

MACA NOS. 1088 OF 2015 & 2032 OF 2015

deceased approached the tribunal claiming a total

compensation of ₹23,85,000/-.

4. The first and second respondents/the driver and

owner of the offending vehicle respectively, remained absent

and were set ex parte before the tribunal. The third

respondent, insurer filed a written statement, denying liability

to indemnify the 2nd respondent for want of insurance

coverage. PW1 and DW1 were examined. Exts.A1 to A19 and

Exts.B1 to B3 and Ext.X1 were marked. The tribunal, after

analysing the pleadings and materials on record, awarded a

total compensation of ₹15,81,685/- with interest @ 9% per

annum against the respondent insurer. The insurer has come

up before this court, challenging the liability and dissatisfied

with the quantum of compensation awarded by the tribunal,

the claimants have come up in appeal.

5. Heard the learned counsel for the appellants and

the learned Standing Counsel for the respondent insurance

company.

6. The learned standing counsel appearing for the

insurance company submits that there was no valid policy

issued from the office of the insurer to the vehicle involved in 2025:KER:80750

MACA NOS. 1088 OF 2015 & 2032 OF 2015

the accident. It was a handwritten policy, which was issued by

the Branch Manager of the insurer, without the knowledge of

the company and a domestic enquiry was conducted and the

Branch Manager was dismissed from service. The learned

standing counsel submitted that, since the policy issued was

a fake one, the company is not liable to indemnify the insured.

The tribunal has considered the afore issue in detail and has

found that the mischief was committed by the employee of the

insurance company and hence the insurance company being

the Principal is liable for the fraud of its agent and found that

the insurer cannot escape from the liability and is liable to

pay the amount. It is also brought to the notice of this Court

that the insurance company has already satisfied the amount

due in another connected appeal, M.A.C.A No.1080 of 2015.

The learned counsel for the appellant also submits that the

insurer cannot take a different contention in this appeal. I do

not find any reason to deviate from the findings of the

tribunal and find that the insurance company is liable to pay

the amount awarded by the tribunal.

7. The learned counsel for the appellants claims

enhancement mainly under the following heads :-

2025:KER:80750

MACA NOS. 1088 OF 2015 & 2032 OF 2015

Notional income :- The learned counsel for the

claimants submitted that the tribunal had taken only an

amount of ₹5,000/- as the notional income. The learned

counsel further submitted that even going by the judgment in

Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Co. Ltd. [2011 (13) SCC 236], the income of a

Coolie, for an accident in 2008 is fixed as ₹6,500/- and sought

for enhancement of income fixed. In order to award a just

and reasonable compensation, following the judgment in

Ramachandrappa (supra), I find it appropriate to fix the

income at ₹8,500/-. By adding 25% future prospects as per

National Insurance Co. Ltd. v. Pranay Sethi [2017(4) KLT

662(SC)], to the income now fixed, the amount will be

₹10,625/- for awarding compensation under the head loss of

dependency.

Loss of dependency :- The deceased was aged 43 years

at the time of the accident. Since the notional income after

adding future prospects is re-fixed as ₹10,625/-, following the

judgments in Pranay Sethi (supra) and Sarla Verma v.

Delhi Transport Corporation [2010(2) KLT 802(SC)], the

compensation payable under the head is re-calculated thus 2025:KER:80750

MACA NOS. 1088 OF 2015 & 2032 OF 2015

(10625 x 12 x 14 x 3/4) ₹13,38,750/-. The tribunal has

awarded an amount of ₹8,19,000/- under the head loss of

dependency. Thus, there will be an additional amount of

₹5,19,750/- under the afore head.

Funeral expenses :- The learned standing counsel

appearing for the insurance company submitted that going by

the judgment in Pranay Sethi (supra), the claimants are

entitled only for a total compensation of ₹15,000/-. The

tribunal has awarded an amount of ₹25,000/- under the said

head. Thus, following the judgment in Pranay Sethi (supra), I

find that the claimants are entitled only for an amount of

₹15,000/- towards funeral expenses. Therefore, there will be

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

Loss of estate :- On a perusal of the award, it is seen

that the tribunal has awarded an amount of ₹1,00,000/-

towards loss of estate. I find that the appellants are entitled

only to get an amount of ₹15,000/- as per Pranay Sethi

(supra). Thus, there will be a deduction of an amount of

₹85,000/- under the afore head.

Loss of consortium/Loss of love and affection :- On

a perusal of the award, it is seen that towards loss of 2025:KER:80750

MACA NOS. 1088 OF 2015 & 2032 OF 2015

consortium, the tribunal has awarded only an amount of

₹1,00,000/-, whereas they were entitled for a total amount of

₹2,00,000/- since there were five legal heirs (40,000 x 5).

Since the tribunal has awarded only an amount of ₹1,00,000/-

towards loss of consortium, following the judgment in Pranay

Sethi (supra), I find that they are entitled for 10%

enhancement in a span of three years after 2017. Accordingly,

they are entitled for a total compensation of ₹48,400/- each

towards loss of consortium, totalling to ₹2,42,000/- (48400 x

5). Since the tribunal already awarded an amount of

₹1,00,000/- under the head loss of consortium, there will be

an additional compensation of ₹1,42,000/- towards loss of

consortium.

The learned standing counsel appearing for the

insurance company submitted that the tribunal has awarded

an amount of ₹2,50,000/- towards the head loss of love and

affection, which is against the principle laid down in the

judgment in New India Assurance Company v. Somwati

and others [2020 (5) KLT OnLine 1198 (SC)], wherein it has

been held that, once compensation is awarded under the head

loss of consortium, no amount shall be awarded under the 2025:KER:80750

MACA NOS. 1088 OF 2015 & 2032 OF 2015

head loss of love and affection, as it would amount to

duplication of compensation. I find force in the argument.

Hence I am inclined to delete ₹2,50,000/- awarded under

the said head.

8. Though the appellant claimed enhancement of

compensation under the other heads, on a perusal 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. Since the appeal is

of the year 2015, I find it appropriate to fix the interest @ 8%

per annum on the enhanced amount.

9. Thus, the impugned award of the tribunal is

modified as follows:-

Sl.

No Head of Amount Amount Modified Total Claim claimed awarded in appeal compensation by the tribunal

1 Loss of 13,75,000 8,19,000 5,19,750 13,38,750 dependency

Not 20,000 2 Pain and 50,000 20,000 modified suffering 3 Funeral 50,000 25,000 10,000(-) 15,000 expenses 4 Transport to 4,000 1,000 Not 1,000 hospital modified 2025:KER:80750

MACA NOS. 1088 OF 2015 & 2032 OF 2015

5 Damage to 1,000 Not 1,000 2,000 clothes modified 6 Loss of love 4,00,000 2,50,000 2,50,000(-) Deleted and affection 7 Loss of 1,00,000 1,42,000 2,42,000 consortium 1,00,000 8 Loss of estate 1,00,000 1,00,000 85,000(-) 15,000

9 Medical 3,00,000 2,63,685 Not 2,63,685 expenses modified 10 Bystander 4,000 2,000 Not 2,000 expenses modified TOTAL 23,85,000 15,81,685 3,16,750 18,98,435

Accordingly, M.A.C.A No.1088 of 2015 is dismissed and

M.A.C.A No.2032 of 2015 is allowed in part and the claimants

are awarded an additional compensation of ₹3,16,750/-

(Rupees Three lakhs sixteen thousand seven hundred and fifty

only) over and above the compensation awarded by the

tribunal with interest @8% per annum from the date of

petition till realization and proportionate costs. The insurer

shall deposit the said amount together with interest and costs

within a period of two months from the date of receipt of a

certified copy of this judgment. The claimant shall furnish

copies of the PAN Card, ADHAAR Card and bank details

before the insurer within a period of one month so as to

enable the insurance company to make the deposit as ordered

above. In case of failure to furnish details as above, it shall be

open for the insurance company to deposit the said amount 2025:KER:80750