KANTHA SWAMY, RAMALEKSHMI, SINGARAJA, ARUMUKHAM v. E. JOHN, ESSAKKI, THE BRANCH MANAGER, RELIANCE GENERAL INSURANCE CO. LTD.

``` 2025:KER:26746 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` WEDNESDAY, THE 19[TH] DAY OF MARCH 2025/28TH PHALGUNA, 1946 ``` ``` MACA NO. 3326 OF 2017 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 25.11.2015 IN OPMV NO.464 OF 2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR. ``` ## **`APPELLANTS:`** - **`1 KANTHA SWAMY, KRISHNA BHAVAN, KAMPI LANE, PUTHULAYAM, FLORANCE, VENTURE P.O., ARYANKAVU, KOLLAM DISTRICT.`** - **`2 RAMALEKSHMI, KRISHNA BHAVAN, KAMPI LANE, PUTHULAYAM, FLORANCE, VENTURE P.O., ARYANKAVU, KOLLAM DISTRICT.`** - **`3 SINGARAJA, KRISHNA BHAVAN, KAMPI LANE, PUTHULAYAM, FLORANCE, VENTURE P.O., ARYANKAVU, KOLLAM DISTRICT.`** - **`4 ARUMUKHAM, KRISHNA BHAVAN, KAMPI LANE, PUTHULAYAM, FLORANCE, VENTURE P.O., ARYANKAVU, KOLLAM DISTRICT.`** ``` BY ADV SRI.ANCHAL C.VIJAYAN ``` ## **`RESPONDENTS:`** - **`1 E.JOHN, S/O. BABY, 154 A - MADAYTHORR, SIVANADANNOOR, TENKASI, PIN - 627 811.`** - **`2 ESSAKKI, S/O. SANKARA PANDI THEVAR, HOUSE NO. 345,`** M.A.C.A.No.3326 of 2017 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:26746` ``` -2- ``` # **`PILLAYAR COVIL STREET, BRANIOOR BORDER, SCHENKOTTA, PIN – 600 030.`** - **`3 THE BRANCH MANAGER,`** ``` RELIANCE GENERAL INSURANCE CO.LTD., 10/4/4, THAHAPLAZA, 11 FLOOR, SOUTH BYEPASS ROAD, VANNARPET, THIRUNELVELI, PIN – 600 026. ``` ## **`SRI.TAPAS VARMA A.`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.3326 of 2017 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:26746` ``` -3- ``` ## **J U D G M E N T** ## Dated this the 19[th] day of March, 2025 The petitioners in O.P.(M.V.) No.464/2011 on the file of the Motor Accident Claims Tribunal, Punalur are the appellants 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 parents and siblings of the deceased by name Krishna Kumar, who died in a motor vehicle accident that occurred on 17.09.2007. According to them, on 17.09.2007, at about 4.30 a.m., while the deceased was driving a lorry along the Alappuzha-Ernakulam road, another lorry bearing Registration No.TN28/2817 driven by the 2[nd] respondent in a rash and negligent manner, overtook the lorry of the deceased and then applied sudden brake. As a result of which the lorry driven by the deceased hit on the offending lorry and deceased sustained serious injuries and he succumbed to the injuries, on the same day. 3. The 1[st] respondent is the owner, the 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.10,00,000/-. M.A.C.A.No.3326 of 2017 ``` 2025:KER:26746 ``` **==> picture [58 x 57] intentionally omitted <==** ``` -4- ``` 4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle. 5. The evidence in the case consists of the documentary evidence Exts.A1 to A9. No evidence was adduced by the respondents. 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.7,50,000/- 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 Sri.Anchal C Vijayan, the learned Counsel appearing for the petitioners/appellants, and Sri.Tapas Varma A, 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 driver, earning Rs.17,000/- per month, but M.A.C.A.No.3326 of 2017 ``` 2025:KER:26746 ``` **==> picture [58 x 57] intentionally omitted <==** ``` -5- ``` the Tribunal fixed his monthly income at Rs.5,000/-.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 2007 will come to Rs.6,000/-. According to the learned counsel, the deceased was a heavy goods licence holder. Even at the time of the accident, he was driving a lorry. In the above circumstances, the notional income of the deceased fixed by the tribunal at Rs.5,000/- is on the lower side. The learned counsel has also relied upon Ext.A9 certificate issued from the ‘Best Trading Company’, stating that the deceased was getting a salary of Rs.17,000/-. However, nobody was examined to prove Ext.A9 and, as such, Ext.A9 stands not proved. Therefore, Ext.A9 cannot be relied upon to prove the income of the deceased. Therefore, considering the fact that the deceased was a heavy good licence holder and even at the time of the accident, he was driving a lorry, I am inclined to fix his notional income at Rs.8,000/-. 12. On the date of accident, the deceased was aged 27 years. Therefore, 40% 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 17, as held in **Sarla Verma v. Delhi** M.A.C.A.No.3326 of 2017 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:26746` ``` -6- ``` **Transport Corporation,** (2009) 6 SCC 121. Since the deceased was a bachelor who left behind 4 dependents, towards personal and living expense, 1/2 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.11,42,400/-. 13. The Tribunal has awarded Rs.20,000/- towards loss of estate, Rs.10,000/- towards funeral expenses, Rs.50,000/- towards mental shock 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 (parents, children and spouse) 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, the petitioners together are entitled to get a sum of Rs.96,800/(48,400 x 2). 14. The learned counsel for the petitioners relying upon the decision of the Hon’ble Supreme Court in **Manusha Sreekumar and Others v. United India Insurance Company Ltd** . (2022) 4 KLJ 725) would argue that, since the insurer has not filed any appeal against the compensation awarded on the heads love and affection and mental shock, now they cannot challenged the compensation awarded by the tribunal on the above heads. Though in the above M.A.C.A.No.3326 of 2017 **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:26746` ``` -7- ``` decision, the Apex Court held that, in the absence of any appeal from the insurer challenge against a paltry amount of compensation awarded to the appellants under the non-conventional heads is not interfered in the above decision. The Apex Court further made it clear that, the question of law, in this regard, is kept open. This means that the above decision cannot be taken as a decision on the question of law involved in the above issue. In the instant case, the compensation awarded by the tribunal on the heads love and affection and mental shock are not paltry sums. Moreover, the compensation awarded on the conventional heads like funeral expenses and consortium have been enhanced in this appeal. 15. In the decision in **New India Assurance Co. Ltd.** **v. Somwati and Others** (2020) 9 SCC 644), the Apex Court held that, in case the compensation on the head loss of consortium is allowed, no compensation for love and affection can be awarded. Since in the decision **Manusha Sreekumar** (Supra), the question of law on the point was not decided, and it was specifically mentioned in the said judgment itself, it can be only an order passed under Article 142 of the Constitution, which is not available to this court. Therefore, in the light of the decision in **Somwati** (supra), the compensation awarded for love and affection as well as compensation for mental shock are liable to be deducted. 16. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to M.A.C.A.No.3326 of 2017 ``` -8- ``` **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:26746` be just and reasonable. 17. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.13,35,500/-, as modified and recalculated above and given in the table below, for easy reference: |Sl.<br>No<br>.|Head of Claim|Amount awarded by<br>Tribunal (in Rs.)|Amount Awarded<br>in Appeal (in Rs.)| |---|---|---|---| |1|Transport to hospital|8,000/-|8,000/-| |2|Funeral expenses|10,000/-|18,150/-| |3|Medical and bystander<br>expenses|2,000/-|2,000/-| |4|Compensation for pain<br>and sufering|50,000/-|50,000/-| |5|Compensation for<br>mental shock|50,000/-|Nil| |6|Compensation for loss<br>of love and afection|1,00,000/-|Nil| |7|Compensation for loss<br>of estate|20,000/-|18,150/-| |8|Compensation for loss<br>of dependency|5,10,000/-|11,42,400/-| |9|Loss of consortium|---|96,800/-| ||**Total**|7,50,000/-|**13,35,500/-**| ||Enhanced Rs.5,85,500/-||| 18. In the result, this Appeal is allowed in part, and the 3[rd] respondent is directed to deposit a total sum of Rs.13,35,500/(Rupees thirteen lakhs thirty five thousand and five hundred Only), less the amount already deposited, if any, along with interest at the rate ordered by the tribunal, from the date of the petition till realisation/deposit, excluding interest for a period of 595 days, the M.A.C.A.No.3326 of 2017 ``` 2025:KER:26746 ``` **==> picture [58 x 57] intentionally omitted <==** **==> picture [23 x 10] intentionally omitted <==** period of delay in filing the appeal, 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