[Cites 3, Cited by 0]
Kerala High Court
Kevin Joy vs P.P.Murukeshan on 30 January, 2026
2026:KER:7494
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 30TH DAY OF JANUARY 2026 / 10TH MAGHA, 1947
MACA NO. 282 OF 2016
AGAINST THE AWARD DATED 29.11.2011 IN OPMV NO.209 OF
2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANTS/PETITIONER AND RESPONDENTS 4 & 5:
1 KEVIN JOY
AGED 29 YEARS, S/O.LATE N.V.JOY,
RESIDING AT FLAT NO.15-A, EXPRESS ESTATE,
BEHIND A.J.HALL, KALOOR, COCHIN-682 017.
2 MERCY JOY
W/O.LATE N.V.JOY, RESIDING AT FLAT NO.15-A,
EXPRESS ESTATE, BEHIND A.J.HALL,
KALOOR, COCHIN-682 017.
3 KIRAN JOY
S/O..LATE N.V.JOY, RESIDING AT FLAT NO.15-A,
EXPRESS ESTATE, BEHIND A.J.HALL, KALOOR, COCHIN-
682 017.(REP. BY P/A. HOLDER MERCY JOY,
AGED 54 YEARS, W/O.LATE N.V.JOY,
RESIDING AT FLAT NO.15-A, EXPRESS ESTATE,
BEHIND A.J.HALL, KALOOR, COCHIN-682 017.
BY ADV SHRI.KURIAN JOSEPH (ARAKKUNNAM)
RESPONDENTS/RESPONDENTS 1 TO 3:
1 P.P.MURUKESHAN
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
2
S/O.POORNAM KIZHAKKU THALIPPETTU,
KEDAPALAYAM P.O., NAMACKAL DISTRICT,
THIRUTHAMKODU TALUK, PIN-637 203.
2 P.PALANISWAMY
S/O.CHERIYASWSAMY, KANADIPALAYM,
KALLAMKODE, PIN-678 506.
3 THE UNITED INDIA INSURANCE COMPANYT LTD
KOLLAMKODE, REPRESENTED BY ITS ASST.MANAGER,
REGIONAL OFFICE, HOSPITAL ROAD,
ERNAKULAM-682 011.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SMT.K.S.SANTHI
SMT.LATHA SUSAN CHERIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 14.01.2026, ALONG WITH MACA.136/2013, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 30TH DAY OF JANUARY 2026 / 10TH MAGHA, 1947
MACA NO. 136 OF 2013
AGAINST THE AWARD DATED 29.11.2011 IN OPMV NO.209 OF
2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANT/3RD RESPONDENT:
THE UNITED INDIA INSURANCE CO. LTD.
KOLLAMKODE, REPRESENTED BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, HOSPITAL ROAD, ERNAKULAM
BY ADV SRI.GEORGE CHERIAN (SR.)
RESPONDENT/CLAIMANT:
1 KEVIN JOY
S/O LATE JOY N. V., EXPRESS ESTATE,
BEHIND A. J. HALL, KALOOR JUNCTION,
COCHIN-682017
2 MERCY JOY
W/O LATE JOY N. V., 15-A,
EXPRESS ESTATE, BEHIND A J HALL,
KALOOR JUNCTION, COCHIN-682017
3 KIRAN JOY
S/O LATE JOY N. V., 15-A, EXPRESS ESTATE,
BEHIND A. J. HALL, KALOOR JUNCTION, COCHIN-682017
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
4
BY ADV SRI.PEEYUS A.KOTTAM
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 14.01.2026, ALONG WITH MACA.282/2016,
THE COURT ON 30.01.2026 DELIVERED THE FOLLOWING:
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
5
JUDGMENT
Since these two appeals arise from the very same award
dated 29.11.2011 in O.P.(MV) No.209 of 2007 on the file of the
Motor Accidents Claims Tribunal, Ernakulam, these appeals are
heard together and being disposed of by this judgment.
M.A.C.A.No.136 of 2013 is filed by the 3 rd respondent/insurer
in the O.P challenging the liability to pay the amount awarded
by the tribunal, whereas M.A.C.A.No.282 of 2016 is filed by the
appellants/claimant & respondents 4 and 5 in the O.P.
dissatisfied with the quantum of compensation awarded by the
tribunal.
2. The brief facts of the case is as follows: On 27.05.2001
at about 9.30 p.m., while the deceased was driving a car
bearing registration No.KL-7-AB-4928 through Trichur -
Ernakulam road, it hit against a lorry bearing registration
No.TN-28W-6559 due to the rash and negligent driving of the
first respondent and as a result, the deceased sustained serious
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
injuries and succumbed to the injuries on the same day. The
claimant, who is the son of the deceased, approached the
tribunal claiming a total compensation of ₹20,00,000/-. The
third and fourth respondents were the wife and another son of
the deceased.
3. The first and second respondents, the driver and the
owner of the offending vehicle respectively, remained absent
and were set ex parte before the tribunal. The third respondent
- insurer filed a written statement and additional written
statement, admitting the ownership of the lorry and disputing
the liability and quantum of compensation claimed. They
contended that the accident occurred due to negligence on the
part of the deceased. Before the tribunal, Exts.A1 to A13 &
Ext.B1 were marked. The tribunal, after analysing the
pleadings and materials on record, found that the accident was
due to negligence on the part of the first respondent and the
appellants/claimants were awarded a sum of ₹8,89,500/- as
compensation under different heads with interest @ 8% per
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
annum from the date of petition till realization with
proportionate costs against the third respondent insurer and in
default of which the award amount will carry penal interest @
9% per annum from the date of petition. Challenging the
liability and dissatisfied with the quantum of compensation
awarded, the insurance company as well as the claimants have
come up in appeals.
4. Heard the learned counsel for the claimants and the
learned standing counsel for the respondent insurer.
5. The learned Standing Counsel appearing for the
insurance company submitted that the brother of the
deceased/driver, who was a passenger in the car, involved in
the accident, had filed O.P.(MV)No. 1700/2001 before the
Motor Accidents Claims Tribunal, Perumbavoor. In the said
case, contributory negligence of 50% each was found by the
tribunal, against the lorry driver and the car driver. The driver
of the car is the deceased in the present claim petition. The
owner of the car was shown as the Managing Partner of Super
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
Link Systems & Technologies (P) Ltd.
6. The learned counsel appearing for the claimants have
produced before this Court, the certified copy of the revised
award in O.P.(MV) No. 1700/2001 filed by the brother of the
deceased. When the original award was passed by the Motor
Accidents Claims Tribunal, Perumbavoor, in the above case, the
4th respondent, National Insurance Company, challenged the
award. This Court, by judgment dated 22.06.2010, set aside the
original award and directed the tribunal to reconsider the issue
regarding liability alone, after impleading the owner of the car.
Subsequently, the modified award was passed by the tribunal
on 16.11.2020.
7. The learned standing counsel appearing for the
insurance company submitted that the claimant and
respondents 4 and 5 in OP(MV) 209/2007 before the Motor
Accidents Claims Tribunal, Ernakulam, are the legal heirs of
the driver of the car, which met with the accident and
submitted that since the award of the Motor Accidents Claims
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
Tribunal, Perumbavoor has become final, the finding of 50%
contributory negligence on both drivers remains as such. The
learned standing counsel further submits that although the
above issue was brought to the notice of the Motor Accidents
Claims Tribunal, Ernakulam, in O.P.(MV) No. 209/2007 filed by
the claimant, the tribunal ignored the said award and no
contributory negligence was found against the driver of the car.
8. The learned counsel appearing for the claimants, on
the other hand, submitted that they were not made a party in
the claim petition filed before the Motor Accidents Claims
Tribunal, Perumbavoor and hence the judgment is not binding
on them.
9. I have considered the rival contentions raised by both
sides. On a perusal of the modified award passed by the Motor
Accidents Claims Tribunal, Perumbavoor, dated 16.11.2010 in
O.P.(MV) No. 1700/2001, it is seen that the legal heirs of the
driver were not made parties in the said original petition.
However, the insurer, while filing an additional written
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
statement before the tribunal in O.P.(MV) No. 209/2007, had
produced the certified copy of the award passed by the Motor
Accidents Claims Tribunal, Perumbavoor, and had also
contended that the tribunal had found 50% contributory
negligence on the part of the driver of the car. The award of the
MACT Perumbavoor was brought to the notice of the
claimants/legal heirs of the deceased.
10. The award passed by the Motor Accidents Claims
Tribunal, Perumbavoor was not challenged by the legal heirs of
the deceased and thus the finding of 50% contributory
negligence has attained finality. Since, the finding of the
contributory negligence against both the drivers were on merits
and was against the drivers pertaining to the very same
accident, the finding of Motor Accidents Claims Tribunal,
Ernakulam, that the award passed by the Motor Accidents
Claims Tribunal, Perumbavoor is not binding is not correct and
is liable to be set aside.
11. The learned counsel for the claimants claim
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
enhancement mainly under the following heads:
I. Notional Income
The learned counsel for the claimants submitted that the
deceased was aged 52 years at the time of accident. Though an
amount of ₹25,000/- was claimed as the monthly income of the
deceased, who was a self employed person, the tribunal had
taken only an amount of ₹9,375/-. The learned standing counsel
appearing for the insurance company submitted that the
tribunal had fixed the monthly income at ₹9,375/- by relying on
the income tax returns produced as Ext.A13. On a perusal of
the award, it is seen that the tribunal had taken the average of
four years' income tax returns for determining the notional
income of the deceased. Considering the facts of the case, I am
of the view that assessment of the income for three years'
income tax returns would be sufficient to ascertain the income
of the deceased at the time of the accident.
Accordingly, by taking the average of the three years'
income tax returns (₹1,29,000 + ₹1,16,000 + ₹1,16,000 =
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
₹3,61,000), the monthly income would come to ₹10,027/-,
which is rounded off to ₹10,030/-.
II. Loss of dependency
Since the deceased was aged 52 years at the time of
accident, going by the judgment in National Insurance Co.
Ltd. v. Pranay Sethi & Ors [2017 (4) KLT 662 (SC)], by adding
10% future prospects to the income now fixed, it would come to
₹11,033 (10,030+1003) which is rounded to ₹11,050/-. Hence,
following the apex court judgments in Pranay Sethi (supra)
and Sarla Verma v. Delhi Transport Corporation [2010(2)
KLT 802(SC)], the total compensation payable under the afore
head is recalculated thus ₹9,72,400/- (11,050 x 12 x 11 x 2/3).
The tribunal had granted an amount of ₹8,25,000/- under the
said head. Thus, there will be an additional amount of
₹1,47,400/- under the head loss of dependency.
III. Funeral expenses
Towards the head funeral expenses, the tribunal has
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
awarded only an amount of ₹7,500/-, whereas the claimants
were 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 ₹7,500/-, there will
be an additional amount of ₹10,650/- under the head funeral
expenses.
IV. Loss of estate
On a perusal of the award, it is seen that no amount was
awarded by the tribunal under the head loss of estate, whereas
the claimants were entitled for an amount of ₹15,000/-.
Following the judgment in Pranay Sethi (supra), I find that
they are entitled for a total amount of ₹18,150/- after adding
10% enhancement in a span of three years after 2017. Hence,
an amount of ₹18,150/- is awarded under the head loss of
estate.
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
V. Loss of consortium
The learned counsel for the claimants submitted that the
tribunal had awarded an amount of ₹50,000/- under the head
loss of consortium. Since there are three legal heirs, they are
entitled for a total amount of ₹1,20,000/- towards the said head,
as per the judgment in Pranay Sethi (supra). Following the
judgment in Pranay Sethi (supra), they are also entitled to get
10% enhancement in a span of three years after 2017.
Accordingly, the claimants are awarded a compensation of
₹48,400/- each towards loss of consortium, totalling to
₹1,45,200/- (48,400 x 3). Since the tribunal had already
awarded an amount of ₹50,000/- under the afore head, there
will be an additional amount of ₹95,200/- towards loss of
consortium.
12. Though the claimants 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
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
be just and reasonable. Since the appeal is of the year 2016, I
find it reasonable to award interest @ 7% per annum for the
enhanced compensation.
13. On a perusal of the award, it is seen that the tribunal
awarded penal interest at the rate of 9%, which is not legally
sustainable in view of the judgment of the apex Court in
National Insurance Co. Ltd. v. Keshav Bahadur [2004 (2)
SCC 370]. Accordingly, the direction of the tribunal awarding
penal interest @ 9% is set aside.
14. 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
appeal compensation
(in Rs.) tribunal
(in Rs.)
(in Rs.)
Loss of 25,00,000 8,25,000 1,47,400 9,72,400
dependency
Transport and
2 2,000 2,000 Not modified 2,000
expenses
Funeral - 7,500 10,650 18,150
expenses
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
Medical 15,000 - Not modified -
expenses
Compensation 1,00,000 5,000 Not modified 5,000
5 for pain and
sufferings
Compensation 50,000 50,000 95,200 1,45,200
for loss of love
and affection
plus consortium
Loss of estate - - 18,150 18,150
Total 20,00,000 8,89,500 2,71,400 11,60,900
(claim limited
to)
After deducting 50% 4,44,750 1,35,700
contributory negligence
Accordingly, M.A.C.A.No.136 of 2013 filed by the
insurance company is allowed and M.A.C.A.No.282 of 2016 filed
by the claimants is partially allowed with the following
directions:
i. The claimants shall be entitled only to 50% of the
compensation awarded by the tribunal, since it is found herein
that there is 50% contributory negligence on the part of the
deceased as well.
ii. The claimants shall be entitled only to 50% of the
compensation in the enhanced amount. Accordingly, the
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
appellants/claimants are awarded an additional compensation
of ₹1,35,700/- (Rupees One Lakh Thirty Five Thousand
Seven Hundred Only) (50% of the 2,71,400), over and above
the compensation awarded by the tribunal with interest @7%
per annum from the date of petition till realization and
proportionate costs.
iii. The appellant - 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 direction of the tribunal awarding penal interest @ 9% is
set aside The claimants shall furnish copies of the PAN Card,
AADHAAR Card and Bank details before the appellant 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 before the
tribunal. Upon such deposit being made, the entire amount
shall be disbursed to the claimants at the earliest, in
2026:KER:7494
MACA NOS. 282 OF 2016 & 136 OF 2013
accordance with law. However, the claimants will not be
entitled for interest for a period of delay of 1403 days in filing
the appeal.
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
RK
