Baby and Others v. HDFC ERGO General Insurance Company Ltd.

``` 2025:KER:22630 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` TUESDAY, THE 11[TH] DAY OF MARCH 2025/20TH PHALGUNA, 1946 ``` ``` MACA NO. 942 OF 2018 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 21.10.2017 IN OPMV NO.934 OF 2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD. ``` ## **`APPELLANTS:`** - **`1 BABY, AGED 47 YEARS, KUNNATH HOUSE, NEDUNGODE, NEMMARA P.O, PALAKKAD DISTRICT.`** - **`2 MANCHU, W/O.GIRISH AGED 30 YEARS, ERAT HOUSE, CHITTILAMCHERY P.O., PALAKKAD DISTRICT.`** - **`3 MANCHUSHA, D/O.CHANDRAN AGED 27 YEARS, KUNNATH HOUSE, NEDUNGODE, NEMMARA P.O, PALAKKAD DISTRICT.`** - **`4 MANIKANDAN, S/O.CHANDRAN, AGED 27 YEARS, KUNNATH HOUSE, NEDUNGODE, NEMMARA P.O., PALAKKAD DISTRICT.`** - **`5 THATHA,`** ``` W/O.EACHARAN EZHUTHASSAN AGED 78 YEARS,KUNNATH HOUSE, NEDUNGODE, NEMMARA P.O., PALAKKAD DISTRICT. ``` ## **`BY ADV SRI.BABY MATHEW`** M.A.C.A.No.942 of 2018 **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:22630 ``` ``` -2- ``` ## **`RESPONDENT:`** ``` H D F C ERGO GENERAL INSURANCE COMPANY LTD, PALAKKAD - 678 001 (INSURER OF LORRY REG.NO.KL-09/AC-7325) (POLICY NO.2315200759713600000) (VALID FROM 23/05/2014 TO 22/05/2015) ``` ``` BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.942 of 2018 ``` 2025:KER:22630 ``` **==> picture [58 x 57] intentionally omitted <==** ``` -3- ``` ## J U D G M E N T ## Dated this the 11[th] day of March, 2025 The petitioners in O.P.(M.V.) No.934/2015 on the file of the Motor Accident Claims Tribunal, Palakkad is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal) 2. The O.P. was filed under under Section 166 of the Motor Vehicles Act, 1988, by the wife, children and mother of the deceased by name Chandran, who died in a motor vehicle accident that occurred on 22.01.2015. According to them, on 22.01.2015, at about 9.20 a.m., while the deceased was riding a motorcycle, he was knocked down by a lorry bearing Registration No.KL-9/AC-7325 and as a result of which he sustained serious injuries and later on he succumbed to the injuries, on the same day. 3. The 1[st] respondent is the owner, 2[nd] respondent is the driver and 3[rd] respondent is the insurer of the offending vehicle. 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.20,90,000/-. 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence M.A.C.A.No.942 of 2018 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:22630` ``` -4- ``` on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the oral testimony of PW1 and documentary evidence Exts.A1 to A13 and Ext.B1. 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.12,87,200/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioners 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 Smt.Baby Mathew, the learned Counsel appearing for the petitioners/appellants, and Smt. Latha Susan Cherian, the learned Standing Counsel for the 3[rd] respondent. 10. The Point: In this case the accident as well as valid policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioners is regarding the income of the deceased as fixed by the Tribunal. According to him, the deceased was working as a concrete slab cutter, earning Rs.12,000/- per month, but the Tribunal fixed his monthly income at M.A.C.A.No.942 of 2018 ``` 2025:KER:22630 ``` **==> picture [58 x 57] intentionally omitted <==** ``` -5- ``` Rs.7,000/-. In order to prove the same the petitioners examined the employer of the deceased as PW1 and produced Ext.A12 salary certificate. The tribunal disbelieved the evidence of PW1 as he had not produced any supporting documents which are admittedly in his possession. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. 11. As per the dictum laid down by the Hon’ble Supreme Court in the decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [2011 (13) SCC 236], the notional income of a coolie, during the year 2015 will come to Rs.10,000/-. Though the petitioners could prove the job of the deceased, they could not prove his income, as claimed in the OP. Therefore, in the light of the dictum laid down by the Hon’ble Supreme Court in **Ramachandrappa** (supra), the deceased being a concrete slab worker by profession, his notional income is fixed at Rs.11,000/-. 12. On the date of accident, the deceased was aged 45 years. Therefore, 25% of the monthly income is liable to be added towards future prospects, as held in the decision in **National Insurance Co.Ltd v Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 14, as held in **Sarla Verma v. Delhi Transport Corporation,** (2009) 6 SCC 121. Since the deceased was married who left behind 5 dependents, towards personal and living M.A.C.A.No.942 of 2018 ``` 2025:KER:22630 ``` **==> picture [58 x 57] intentionally omitted <==** ``` -6- ``` expense, 1/4 of the income is liable to be deducted, as held in **Sarla Verma** (supra). In the above circumstances, the loss of dependency will come to Rs.17,32,500/-. 13. The Tribunal has awarded Rs.25,000/- towards loss of estate, Rs.25,000/- towards funeral expenses, Rs.1,00,000/towards loss of consortium and Rs.1,00,000/- towards love and affection. In the light of the decision in **Pranay Sethi** (supra), the appellants are entitled to get a consolidated sum of Rs.15,000/towards loss of estate, Rs.15,000/- towards funeral expenses, and the dependents are entitled to get a sum of Rs.40,000/- each towards loss of consortium, with an increase of 10% in every three years. Therefore, towards loss of estate and funeral expense they are entitled to get a sum of Rs.18,150/- each. Towards loss of consortium, petitioners together are entitled to get a sum of Rs.2,42,000/- (48,400 x 5). 14. Since compensation for loss of consortium was given, further compensation for love and affection cannot be granted, in view of the decision in **New India Assurance Company Ltd. v. Somwati and Others,** (2020)9 SCC 644. Therefore, the compensation awarded towards love and affection is to be deducted. 15. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.15,000/-, which according to the learned counsel for the petitioners, is on the lower side. The deceased died in M.A.C.A.No.942 of 2018 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:22630` ``` -7- ``` this case on the date of the accident. In the above circumstances, I hold that the compensation awarded towards pain and suffering is on the lower side, and hence, it is enhanced to Rs.25,000/-. 16. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 17. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.20,38,800/-, as modified and recalculated above and given in the table below, for easy reference: |Sl.<br>No<br>.|Head of Claim|Amount awarded<br>by Tribunal (in Rs.)|Amount Awarded<br>in Appeal (in Rs.)| |---|---|---|---| |1|Transport to hospital|2,000/-|2,000/-| |2|Damage to clothing<br>and article|1,000/-|1,000/-| |3|Funeral expenses|25,000/-|18,150/-| |4|Compensation for loss<br>of estate|25,000/-|18,150/-| |5|Compensation for<br>pain and suferings|15,000/-|25,000/-| |6|Compensation for loss<br>of consortium|1,00,000/-|2,42,000/-| |7|Compensation for loss<br>of love and afection|1,00,000/-|Nil| |8|Compensation for loss<br>of dependency|10,19,200/-|17,32,500/-| ||**Total**|12,87,200/-|**20,38,800/-**| ||Enhanced Rs.7,51,600/-||| M.A.C.A.No.942 of 2018 ``` 2025:KER:22630 ``` **==> picture [58 x 57] intentionally omitted <==** ``` -8- ``` 18. In the result, this Appeal is allowed in part, and the 3[rd] respondent is directed to deposit a total sum of Rs.20,38,800/(Rupees twenty lakhs thirty eight thousand and eight hundred Only), less the amount already deposited, if any, along with interest @ 9% per annum, from the date of the petition till realisation/deposit, with proportionate costs, within a period of two months from today. (enhanced compensation will carry interest @8%). 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** ADS