Kerala High Court

R.P.Prasanthi Raj vs T.S.Prasanthi on 25 September, 2025

                                                     2025:KER:71253

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

            THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

    THURSDAY, THE 25TH DAY OF SEPTEMBER 2025 / 3RD ASWINA, 1947

                         MACA NO. 2088 OF 2012

        AGAINST THE AWARD DATED 29.12.2006 IN OPMV NO.495 OF 2003 OF

MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA

APPELLANTS/2ND APPLICANT:

            R.P.PRASANTHI RAJ
            S/O. RAJAN, ARANGALAMPADU, RAJ BHAVAN,
            KEEZHKOLLA, VATTAVILA P.O.,
            THIRUVANANTHAPURAM.


            BY ADVS.
            SRI.VINOD RAVINDRANATH
            SMT.MEENA.A.
            SMT.M.R.MINI
            SRI.ASHWIN SATHYANATH
            SRI.ROHIT NANDAKUMAR




RESPONDENTS/APPLICANTS 1 & 3 AND RESPONDENTS:

    1       T.S.PRASANTHI
            W/O. RAJAN, ARANGALAMPADU, RAJ BHAVAN,
            KEEZHKOLLA, VATTAVILA P.O.,
            THIRUVANANTHAPURAM-695 132.

    2       R.P.SREEJITH RAJ
            S/O. RAJAN, ARANGALAMPADU, RAJ BHAVAN,
            KEEZHKOLLA, VATTAVILA P.O.,
            THIRUVANANTHAPURAM-695 132.
                                              2025:KER:71253

MACA NO. 2088 OF 2012

                               2

   3       T.R.CHRISPIN RAJ
           S/O. THOMSON, THAMARAVILA PUTHEN VEEDU,
           KEEZHKOLLA, AMARAVILA P.O.,
           THIRUVANANTHAPURAM-695 122.

   4       THE DIVISIONAL MANAGER
           NEW INDIAN ASSURANCE CO. LTD.,
           GANDHARI AMMANCOIL ROAD,
           THIRUVANANTHAPURAM-695 001.

   5       KAMALAM
           THAVAYATHUKONAM KIZHAKKINKARA VEEDU,
           KUNNATHUKAL P.O., THIRUVANANTHAPURAM, PIN-695
           504.


           BY ADVS.
           DR.PAULY MATHEW MURICKEN
           SRI.VPK.PANICKER
           SMT.REMYA KRISHNAN



    THIS    MOTOR   ACCIDENT   CLAIMS   APPEAL   HAVING    BEEN
FINALLY HEARD ON 16.09.2025, THE COURT ON 25.09.2025
DELIVERED THE FOLLOWING:
                                                  2025:KER:71253

MACA NO. 2088 OF 2012

                               3




                          JUDGMENT

This appeal is filed by the appellant/second claimant in

O.P (MV) No.495 of 2003 on the file of the Motor Accidents

Claims Tribunal, Neyyattinkara. The respondents herein are the

first and third claimants and the respondents before the

tribunal.

2. According to the claimant, on 26.03.2003, at about

01.00 a.m., while the deceased was travelling along with his

goods in a vehicle bearing registration No.KL-06-9459 from

Nagarcoil to Thiruvananthapuram, driven by the first

respondent in a rash and negligent manner fell into a pond and

as a result of the accident, the deceased sustained serious

injuries and succumbed to the injuries on the spot. The

claimant, who is the legal heir of the appellant, approached the

tribunal claiming a total compensation of ₹10,00,000/-.

3. The first and second respondents were the owner-cum-

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MACA NO. 2088 OF 2012

driver and the insurer of the offending vehicle respectively and

the third respondent was the mother of the deceased. The

second respondent - insurer filed a written statement,

admitting the insurance policy, disputing the liability and

quantum of compensation claimed. They contended that the

first respondent was not holding a valid driving licence and

badge to drive a mini goods vehicle. They filed an additional

written statement contending that the deceased was a

gratuitous passenger and there is no insurance coverage

against the risk of a gratuitous passenger. Exts.A1 to A6 and

Ext.B1 documents were marked before the tribunal. The

tribunal, after analysing the pleadings and materials on record

found that the accident occurred due to negligence on the part

of the first respondent and awarded a sum of ₹3,47,000/- as

compensation under different heads with interest @ 7.5% per

annum from the date of petition till realization with

proportionate costs against the 2 nd respondent being the

insurer. Dissatisfied with the quantum of compensation 2025:KER:71253

MACA NO. 2088 OF 2012

awarded by the tribunal, the second claimant has come up in

appeal.

4. Heard Smt.Meena.A,the learned counsel for the

appellant and Sri.V.P.K.Panicker, the learned Standing Counsel

for the respondent insurance company.

5. At the time of hearing the appeal, the learned standing

counsel appearing for the insurance company raised an

argument that since the appeal has been filed only by one

among the claimants, who is the legal heir of the deceased and

the other claimants are arrayed as the respondents and their

shares have been apportioned by the tribunal, only the

appellant is entitled for claiming the enhanced compensation.

The learned standing counsel further argued that even in the

appeal, the appellant has not sought for compensation for the

other claimants.

6. The learned counsel appearing for the appellant, on

the other hand, submits that although not all claimants from

the original petition are arrayed as the appellants, this Court 2025:KER:71253

MACA NO. 2088 OF 2012

is competent to award compensation to all the claimants

particularly since they have been arrayed as respondents. The

learned counsel also relying on the judgment of this Court in

Anjali v. Ragesh and Others [2020 (5) KHC 392] and Royal

Sundaram Alliance Insurance Company Limited v.

V.S.Sujatha [2023 (6) KHC 89], and argued that all the

claimants are entitled for the enhanced compensation. Relying

on Paragraph 24 of the judgment in V.S.Sujatha (supra) she

further argued that, even in the absence of any appeal or cross

objection from the claimants, this court is competent to

enhance the compensation in an appeal filed by the insurance

company. Paragraph 24 of the judgment in V.S.Sujatha (supra)

reads as follows:

"The 1st petitioner has not chosen to file any appeal

against the award and the petitioners 2 and 3 have

challenged the award only to the limited extent of the

ratio regarding apportionment of compensation between

the 1st petitioner and themselves. This Court, in the

nature of the contention of the insurance company that 2025:KER:71253

MACA NO. 2088 OF 2012

the award is excessive, ventured to find out whether the

award is just and reasonable and in the process, found

that the petitioners are entitled for an enhanced

compensation of Rs. 400,196/-. It is now trite that the

appellate Court in appeal filed by the insurance company

can enhance compensation without appeal or cross

objection by the claimant in order to award just and

reasonable compensation. The Supreme Court in APSRTC

represented by its General Manager v. M. Ramadevi

and others, 2008 (3) SCC 379, relying on the decision

in Nagappa v. Gurudayal Singh, 2003 (2) SCC 274 has

held that, High Court is justified in enhancing

compensation even when there is no appeal by the

claimant".

Hence, according to her, all the claimants, though they

have not challenged the award by way of appeal, are entitled

for the enhanced compensation.

7. The learned Standing Counsel appearing for the

insurance company relied on the judgments of this Court in 2025:KER:71253

MACA NO. 2088 OF 2012

Sreedhara Pai v. Damodara Naiken [1980 KHC 411] and

Sher Singh and Others v. Union of India [1980 KHC 1532]

of the Delhi High Court.

Paragraph 10 of the judgment In Sreedhara Pai (supra)

reads as follows:

"The general rule is that an Appellate Court can reverse

or vary a decree of the Trial Court only in favour of the

party who has appealed from the Trial Court's decree.

When there are several plaintiffs and defendants and only

one of them files an appeal, normally, the Appellate Court

will interfere with the decree under appeal only in favour

of the party who has preferred the appeal. O.41, R.4 is an

exception to the general Rule, Under this Rule, the

Appellate Court is given powers to vary a decree of the

Trial Court against several persons, one of whom alone

appeals, if the decree proceeds on any ground common to

all of them. This is important. The enabling provision

contained in 0.41 R.4 can be made use of by the Appellate

Court only when the decree proceeds on a ground common 2025:KER:71253

MACA NO. 2088 OF 2012

to all, that is, the party who has preferred the appeal and

the parties who are not before the Appellate Court.

Therefore, where an appeal is preferred by one of the

parties alone, without impleading all the parties to the suit,

and where the appellant does not have a ground common

with those who have not been impleaded, the Appellate

Court cannot vary, modify or reverse a decree in favour of

the party who has appealed".

8. I have considered the rival contentions raised on both

sides.

9. On a perusal of the appeal filed, it is seen that the

appellant had challenged the quantum of compensation

awarded by the tribunal, mainly under the heads, monthly

notional income fixed, compensation awarded towards loss of

estate, loss of love and affection, loss of consortium and pain

and sufferings. On a perusal of the award, it is also seen that

the compensation awarded was not just and reasonable. It may

be true that the appellant, himself, had filed this appeal after

attaining the age of majority, after realizing that the amount 2025:KER:71253

MACA NO. 2088 OF 2012

awarded was very meagre. The other claimants are arrayed as

respondents 1 and 2 in the appeal.

10. Order 41 Rule 33 of the Code of Civil procedure

grants an appellate court broad powers to pass any decree or

order that ought to have been passed by the trial court, even if

the appeal doesn't address the specific issue. This

"extraordinary power" can be exercised to do complete justice

and ensure consistency, even in favour of parties who haven't

appealed, and is particularly useful in cases with multiple

parties or decrees.

Section 169 (2) of the Motor Vehicles Act, 1988 confirms

the tribunal with all the powers of the civil court for the

purposes mentioned in Order 41 Rule 33 of Code of Civil

Procedure. As well as Rule 395 of the Kerala Motor Vehicles

Rules, 1989 also enables the provisions of Code of Civil

Procedure to be applied to the proceedings before the tribunal.

11. It is a settled legal position of law that Order 41 Rule

33 of the Code is applicable to a proceeding under the Motor 2025:KER:71253

MACA NO. 2088 OF 2012

Vehicles Act. The appellate court can pass such other decree or

order as the case may require. The words "as the case may

require" used in Order 41 Rule 33 of the Code is having a wider

interpretation to enable the appellate court to pass any order or

decree to meet the ends of justice. Hence for the appellate

court to exercise its powers under Order 41 Rule 33 of the

Code, all the parties before the trial court are to be before the

appellate court.

12. Admittedly, all the parties before the tribunal are

made parties in this appeal. The question to be considered by

this Court is whether the compensation awarded by the tribunal

is just and reasonable. The apex court in Anjali (supra), held

that the High Court is justified in enhancing compensation even

when there is no appeal or cross objection by the claimants, in

an appeal by the insurance company. In such an event, there is

no doubt that even though all the parties have not appealed

against the award passed by the tribunal and if only one of the

claimants has filed an appeal, all the claimants are entitled to 2025:KER:71253

MACA NO. 2088 OF 2012

get the benefit of the enhanced compensation. This Court in

Anjali (supra), has held that even in cases where one of the

claimants has filed an appeal, all the claimants are entitled for

enhanced compensation. The tribunal's apportionment of

compensation among the parties in the claim petition is solely

for the purpose of justly distributing the compensation

awarded. The judgment relied on by the learned Standing

Counsel appearing for the insurance company, is not applicable

to the facts of this case. As stated above, since the

compensation awarded by The tribunal is unjustifiably low, I

find that all the claimants are entitled for enhanced

compensation that is being awarded by this court.

13. The learned counsel for the appellant claims

enhancement mainly under the following heads:-

I. Notional Income

The learned counsel for the appellant submitted that

though the deceased, who was a shop keeper as well as dealer

of plantains, had claimed an amount of ₹4,000/- as the income, 2025:KER:71253

MACA NO. 2088 OF 2012

the tribunal had taken only an amount of ₹2,250/- as the

monthly notional income. The learned counsel further submits

that even going by the judgment in Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Co. Ltd.

[2011 (13) SCC 236], the monthly income ought to have been

taken at ₹4,000/-, since the accident is of the year 2003 and

seeks enhancement of income fixed. Accordingly, following the

judgment in Ramachandrappa (supra) and in order to award a

just and reasonable compensation, I find it appropriate to re-fix

the notional monthly income at ₹4,000/- (Rupees Four

Thousand Only).

II. Loss of dependency

The learned standing counsel appearing for the insurance

company submitted that since the deceased was aged 36 years

at the time of accident, following the judgment in Sarla Verma

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

multiplier to be adopted is "15", but the tribunal had adopted

the multiplier as 16. The learned counsel appearing for the 2025:KER:71253

MACA NO. 2088 OF 2012

appellant submitted that at the time of death of the injured,

there were four legal heirs, the mother, wife and two children.

However, the tribunal had deducted 1/3rd instead of 1/4th

towards the personal and living expenses of the deceased.

On a perusal of the award, it is seen that the legal heirs

were four in number, the wife and two children were the

applicants and the mother was the third respondent before the

tribunal. It is also submitted that the mother was alive at the

time of the death of the injured. Hence, I find that the

deduction towards the personal and living expenses shall be

1/4th instead of 1/3rd. Hence, following the judgments of the

Apex Court in National Insurance Company Ltd. v. Pranay

Sethi [2017 (4) KLT 662 (SC)] and Sarla Verma (supra), the

total compensation payable under the afore head is

recalculated thus ₹5,40,000/- (4,000 x 12 x 15 x 3/4). The

tribunal had granted an amount of ₹2,88,000/- under the said

head. Thus, there will be an additional amount of ₹2,52,000/-

(Rupees Two Lakh Fifty Two Thousand Only)under the afore 2025:KER:71253

MACA NO. 2088 OF 2012

head.

III. Funeral expenses

Towards the head funeral expenses, the tribunal has

awarded only an amount of ₹5,000/-, whereas the appellant was

entitled for an amount of ₹15,000/-. Following the judgment in

Pranay Sethi & Ors (Supra), I find that the legal heirs are

entitled for an additional enhancement of 10% in a span of

three years after 2017. Thus, the total amount to be awarded

under the afore head will be ₹18,150/-. Since the tribunal has

already awarded an amount of ₹5,000/-, there will be an

additional amount of ₹13,150/- (Rupees Thirteen Thousand

One Hundred and Fifty Only) under the afore head.

IV. Loss of consortium/loss of love and affection

The learned counsel for the appellant submitted that the

tribunal had awarded an amount of ₹15,000/- under the head

loss of consortium. Since there are four legal heirs, they are

entitled for a total amount of ₹1,60,000/- towards the said head,

as per the judgment in Pranay Sethi (supra). Following the 2025:KER:71253

MACA NO. 2088 OF 2012

judgment in Pranay Sethi (supra), they are also entitled to get

10% enhancement in a span of three years after 2017.

Accordingly, the appellant is awarded a compensation of

₹48,400/- each towards loss of consortium, totalling to

₹1,93,600/- (48400 x 4). Since the tribunal had already awarded

an amount of ₹15,000/- under the afore head, there will be an

additional amount of ₹1,78,600/-

The learned standing counsel appearing for the insurance

company submitted that an amount of ₹15,000/- 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 ₹15,000/- awarded by the tribunal under

the head loss of love and affection and I award an additional

amount of ₹1,78,600/- (Rupees One Lakh Seventy Eight 2025:KER:71253

MACA NO. 2088 OF 2012

Thousand Six Hundred Only) under the head loss of consortium.

14. Though the appellant claimed enhancement of

compensation under 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 2012, I

find it reasonable to award interest @ 7% for the enhanced

amount.

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

as follows:

Amount Amount Sl. Amount awarded modified in Total No. Head of Claim claimed by the appeal compensation (in Rs.) tribunal (in Rs.) (in Rs.) 1 Loss of estate 15,000 (not 15,000 modified) 2 Love and affection 15,000 (-15,000) Deleted Loss of 3 15,000 1,78,600 1,93,600 Consortium

4 Funeral expenses 5,000 13,150 18,150 2025:KER:71253

MACA NO. 2088 OF 2012

5 Damage to clothing (not 1,000 modified) 1,000

6 Pain and sufferings 5,000 (not 5,000 modified)

Transportation (not 7 3,000 3,000 charges modified) Loss of 2,88,000 2,52,000 5,40,000 8 dependency

Total amount 10,00,000 3,47,000 4,28,750 7,75,750 (Claim limited to)

Accordingly, the appeal is allowed in part. The appellant/

claimant No.2 and respondents 1 and 2/claimant Nos. 1 and 3

and respondent 5 are entitled for the enhanced compensation

awarded by this Court. Hence, I award an additional amount of

₹4,28,750/- (Rupees Four Lakh Twenty Eight Thousand Seven

Hundred and Fifty Only) over and above the compensation

awarded by the tribunal with interest @ 7% per annum from

the date of petition till realization with proportionate cost from

the respondent insurer. The 4th respondent insurer in the

appeal, shall deposit the said amount together with interest and 2025:KER:71253

MACA NO. 2088 OF 2012

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

a certified copy of this judgment. The appellant as well as

respondents 1, 2 and 5 shall furnish copies of the PAN Card,

AADHAAR Card and Bank details before the 4th respondent

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 4th respondent, insurance company to deposit the said

amount before the tribunal. Upon such deposit being made, the

entire amount shall be disbursed to the appellant and

respondents 1, 2 and 5 at the earliest, in accordance with law.