MACA No. 2801 of 2016 & MACA No. 722 of 2018, Common Judgment

``` MACA NOs. 2801 OF 2016 & 722 of 2018 ``` ``` 1 ``` ``` 2025:KER:23402 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` MONDAY, THE 17[TH] DAY OF MARCH 2025 / 26TH PHALGUNA, 1946 ``` ## **`MACA NO. 2801 OF 2016`** ``` AGAINST THE AWARD DATED 30.04.2016 IN OPMV NO.329 OF 2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA ``` ## **`APPELLANTS/PETITIONERS :-`** - **`1 LISSY JOSEPH, AGED 48 YEARS W/O. JOSEPH P.C. (LATE) AGED 48 YEARS, PULICKAPRAVIL HOUSE, ELIKKULAM PANCHAYATH, NJANDUPARA POST, PAIKA KOTTAYAM DISTRICT.`** - **`2 THOMAS JOSEPH, AGED 19 YEARS S/O. JOSEPH P.C. (LATE) AGED 19 YEARS, PULICKAPRAVIL HOUSE, ELIKKULAM PANCHAYATH. NJANDUPARA POST, PAIKA, KOTTAYAM DISTRICT.`** ``` BY ADVS. SRI.JAI GEORGE SMT.DAISY A.PHILIPOSE ``` ## **`RESPONDENTS / RES PONDENTS :-`** - **`1 M/S. NATIONAL INSURANCE COMPANY KOTTAYAM DIVISION, C.S.I. SQUARE, BAKER HILL, KOTTAYAM , PIN- 686 001.`** - **`2 ATHIRA ARUN W/O. ARUN THOMAS, PULICKAPARAVIL HOUSE, NJADU PARA POST, KOTTAYAM DISTRICT.`** - **`3 ARON THOMAS ARUN S/O. ARUN THOMAS, AGED 1 1/2 YEARS, MINOR, PULICKAPRAVIL HOUSE, NJANDU PARA POST,`** ``` MACA NOs. 2801 OF 2016 & 722 of 2018 ``` ``` 2 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:23402 ``` ## **`KOTTAYAM DISTRICT, REPRESENTED BY HIS MOTHER ATHIRA AURN.`** ``` BY ADVS. B.JAYABAL(K/150/2010) DEEPU.T.B.(K/80/2021) Deepa George George ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.03.2025, ALONG WITH MACA.722/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NOs. 2801 OF 2016 & 722 of 2018 ``` ``` 3 ``` ``` 2025:KER:23402 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR`** ``` MONDAY, THE 17[TH] DAY OF MARCH 2025 / 26TH PHALGUNA, 1946 ``` ## **`MACA NO. 722 OF 2018`** ``` AGAINST THE AWARD DATED IN OPMV NO.329 OF 2013 OF MOTOR ACCIDENT ``` ``` CLAIMS TRIBUNAL, PALA ``` ## **`APPELLANT/1ST RESPONDENT :-`** ``` NATIONAL INSURANCE COMPANY LIMITED KOTTAYAM DIVISION, CSI SQUARE, BAKER HILL, KOTTAYAM 686001 ``` ``` BY ADV DEEPA GEORGE ``` ## **`RESPONDENTS/PETITIONERS 1 AND 2 & RESPONDENTS 2 AND 3 :-`** - **`1 LISSY JOSEPH AGED 48 YEARS`** - **`W/O LATE JOSEPH P.C PULICKAPRAVIL HOUSE , ELIKULAM PANCHAYAT, NJANDUPARA PO, PAIKA, KOTTAYAM DISTRICT`** - **`2 THOMAS JOSEPH S/O LATE JOSEPH, PULICKAPRAVIL HOUSE, ELIKULAM PANCHAYATH, NJANDUPARA (P.O.) PAIKA, KOTTAYAM DT`** - **`3 ATHIRA ARUN W/O ARUN THOMAS, PULICKAPRAVIL HOUSE, NJANDUPARA (PO) KOTTAYAM DT, PIN- 686 577`** - **`4 ARON THOMAS ARUN(MINOR) AGED 1/2 YRS, S/O ARUN THOMAS, REPRESENTED BY HIS MOTHER ATHIRA ARUN, W/O ARUN THOMAS, PULICKAPRAVIL HOUSE, NJANDUPARA (PO)`** ``` MACA NOs. 2801 OF 2016 & 722 of 2018 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 4 ``` ``` 2025:KER:23402 ``` ## **`KOTTAYAM DISTRICT - PIN -686577`** ``` BY ADVS. B.JAYABAL(K/150/2010) DEEPU.T.B.(K/80/2021) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.03.2025, ALONG WITH MACA.2801/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NOs. 2801 OF 2016 & 722 of 2018 ``` ``` 5 ``` **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:23402` ## **COMMON JUDGMENT** The petitioners in O.P.(M.V.) No.329/2013 on the file of the Motor Accident Claims Tribunal, Pala are the appellants in MACA No.2801 of 2016 and 1[st] respondent in the O.P is the appellant in MACA No.722 of 2018 . (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 mother and brother of the deceased by name Bibin George Joseph, 23 years, who died in a motor vehicle accident that occurred on 08.03.2013. According to them, on 08.03.2013 at about 04.30 am, while the deceased Bibin George Joseph along with his brother Abin Cherian Joseph, their father P.C.Joseph and one Arun Thomas were travelling in a Tata Indica car bearing Registration No.KL-31-3686 from Bangalore to Paika, after purchasing marbles and granite for flooring of their new house under construction, the car hit behind an unidentified lorry. As a result of which, all the four passengers in the car sustained serious injuries and succumbed to the injuries. Arun Thomas, who was the owner of the car was driving the car. 3. The 1[st] respondent is insurer of the car. Respondents 2 and 3 are the legal heirs of owner of the car Arun Thomas. According to the petitioners, the ``` MACA NOs. 2801 OF 2016 & 722 of 2018 ``` ``` 6 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:23402 ``` accident occurred due to the negligence of the driver of the car. The quantum of compensation claimed in the O.P. was Rs.29,52,500/-. 4. The insurance company filed a written statement, admitting the accident as well as policy, but contending that the insured was not the driver of the car at the time of accident. It was also alleged that since the insured was not a third party, his name was substituted in the place of the driver. 5. The evidence in the case consists of the oral testimonies of PWs 1 to 3 and documentary evidence Exts.A1 to A43 and B1. 6. After evaluating the evidence on record, the Tribunal found that Arun Thomas was the driver at the time of accident, that accident occurred due to his negligence, awarded a total compensation of Rs.10,70,595/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioners preferred MACA No.2801 of 2016. When the Tribunal passed the award on 30.04.2016, against the award, the insurer filed a review petition before the Tribunal on 04.01.2017 along with a certified copy of the final report in Crime No.160/2013 of Omallur Police Station, Salem District. However the Tribunal dismissed the above review petition and thereafter the insurer preferred MACA 722/2018. 8. Now the points that arise for consideration are the following: ``` MACA NOs. 2801 OF 2016 & 722 of 2018 ``` ``` 7 ``` **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:23402` - _1) Whether Arun Thomas was the driver of the car at the time of accident?_ - _2) Whether the quantum of compensation awarded by the Tribunal is just and reasonable?_ 9. Heard Sri.Jai George, the learned Counsel appearing for the petitioners and Smt.Deepa George, the learned Standing Counsel for the 1[st] respondent. 10. The Point:The case of the petitioners was to the effect that at the time of the accident one Arun Thomas was the driver of the car in which the deceased was travelling. Accordingly, Ext.A3 FIR was registered by the police making Arun Thomas as the accused. Before the Tribunal the Final Report was not produced and accordingly the Tribunal relied upon Ext.A3 FIR and passed the award against the insurer. Along with the review petition the insurer has produced Exts.B1 & B1(a) Final Report in which the police after investigation found that Ebin George Joseph was the driver of the car at the time of the accident. However, in this case the above final report has no relevance, as the deceased herein was only a passenger in the said car. 11. 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 at ``` MACA NOs. 2801 OF 2016 & 722 of 2018 ``` ``` 8 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:23402 ``` Rs.8,000/-. According to the petitioners the deceased in this case was a 23 year old MBA 4[th] Semester student in Mangalam College of Engineering, Ettumanoor. Therefore, according to the learned counsel for the petitioners the notional income of the deceased fixed by the Tribunal at Rs.8,000/- is on the lower side. On the other hand, according to the learned counsel for the insurer, the Tribunal has awarded Rs.70,095/- on the head funeral expenses and Rs.1,00,000/- towards love and affection, which are on the higher side. 12. From Ext.A32, BBA certificate of the deceased it is revealed that, he had passed BBA in first class in March 2011. Therefore, as argued by the learned counsel for the petitioners, the deceased was a bright student and he had a very good future when he met with the accident. The learned counsel for the insurer relied upon the decision of the Apex Court in **Meena Pawaia and Others v. Asraf Ali and Others [2021 (6) KHC 596]** and submitted that in an accident in the year 2012, the notional income of an Engineering student was fixed at Rs.10,000/-.In the decision in **Kandasamy v. Linda Briyal [2023 KHC 5361]** , the Hon’ble Supreme Court has fixed the notional income of a B.Tech Graduate in the year 2008 at Rs.25,000/-. In the decision in **Basanti Devi and Others v. Divisional Manager, New India Assurance Company Ltd. & others [Manu/SC/1333/2021]** , the Hon’ble Supreme Court has fixed the notional income of a B.Tech graduate in Computer Technology involved in an accident of the year ``` MACA NOs. 2801 OF 2016 & 722 of 2018 ``` ``` 9 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:23402 ``` 2011 at Rs.20,000/-. This Court has fixed the notional income of a final year Engineering student involved in an accident of the year 2015 at Rs.22,000/-, in the decision in **Nanu K and Others v. National Insurance Company Ltd.** [MACA No.565 of 2019]. In the decision in **S.Vasanthi v. Adparasakthi Engineering College [AIR 2022 SC 5051]** , the Hon’ble Supreme Court has fixed the notional income of an Engineering Graduate pursuing MBA involved in an accident in the year 2010 at Rs.30,000/-. In the instant case, the deceased passed BBA in first class and he was pursuing MBA 4[th] Semester and as such, I hold that the notional income fixed by the Tribunal at Rs.8,000/- is too meager and hence it is fixed at Rs.20,000/-. 13. On the date of accident, the deceased was aged 23 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 18, as held in **Sarla Verma v. Delhi Transport Corporation,** (2009) 6 SCC 121. Since the deceased was a bachelor who left behind 2 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.30,24,000/-. 14. Towards funeral expenses Rs.70,095/- was awarded by the Tribunal. and Rs.,1,00,000/- towards love and affection. No amount was granted towards ``` MACA NOs. 2801 OF 2016 & 722 of 2018 ``` ``` 10 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:23402 ``` loss of estate and loss of consortium. 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, petitioner No.1 is entitled to get a sum of Rs.48,400/- (48,400 x 1). 15. 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. 16. The insurer has challenged the rate of interest awarded by the tribunal at 9%. Considering the entire facts, I hold that interest at the rate of 8% will be reasonable. 17. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 18. Therefore, the petitioners are entitled to get a total compensation of Rs.31,45,200/-, as modified and recalculated above and given in the table below, ``` MACA NOs. 2801 OF 2016 & 722 of 2018 ``` ``` 11 ``` **==> picture [58 x 57] intentionally omitted <==** ## `2025:KER:23402` ## for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded by**<br>**Tribunal (in Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Transport to hospital|11500|11500| |2|Funeral expenses|70095|18,150| |3|Pain and sufferings|25000|25000| |4|Loss of dependency|864000|30,24,000| |5|Loss of consortium|Nil|48,400| |6|Loss of estate|Nil|18,150| |7|Loss of love and affection|1,00,000|Nil| ||**Total**|**10,70,595**|**31,45,200**| ||**Enhanced to Rs.**|**20,74,605**|| 19. In the result, these Appeals are disposed of and the 1[st] respondent is directed to deposit a total sum of Rs.31,45,200/- (Rupees Thirty One Lakh Forty Five Thousand Two Hundred Only), less the amount already deposited, if any, along with interest @ 8% per annum, from the date of the petition till realisation/deposit, with proportionate costs in MACA 2801 of 2016, within a period of two months from today. No costs ordered in MACA 722 of 2018. ``` MACA NOs. 2801 OF 2016 & 722 of 2018 ``` ``` 12 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:23402 ``` 20. 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** SMA