MACA NOs. 1407 & 1408 OF 2017

``` MACA NOs. 1407 & 1408 OF 2017 ``` ``` 1 ``` ``` 2025:KER:24697 ``` **==> picture [57 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. 1408 OF 2017 ``` ``` AGAINST THE AWARD DATED 20.12.2026 IN OPMV NO.159 OF 2013 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-IV, PATHANAMTHITTA ``` ## **`APPELLANT/2ND RESPONDENT :-`** ``` THE NEW INDIA ASSURANCES COMPANY LIMITED PATHANAMTHITTA, REPRESENTED BY ITS DEPUTY MANAGER,REGIONAL OFFICE, M.G ROAD, ERNAKULAM ``` ``` BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI ``` ## **`RESPONDENTS/CLAIMANTS & 3RD RESPONDENT :-`** - **`1 BINU VIKRAMAN, D/O. RETNAMMA, SIVAPRIYA, MANJANIKKARA,OMALLOOR PIN 689 647`** - **`2 K.A HARIKUMAR S/O. K.KOCHUVELU, PHARMACY INCHARGE,POYANIL HOSPITAL,KOZHENCHERRY PIN 689 641`** ``` BY ADVS. SRI.A.N.SANTHOSH SRI.K.N.RADHAKRISHNANTHIRUVALLA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2025, ALONG WITH MACA.1407/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NOs. 1407 & 1408 OF 2017 ``` ``` 2 ``` ``` 2025:KER:24697 ``` **==> picture [57 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. 1407 OF 2017 ``` ``` AGAINST THE AWARD DATED 20.12.2026 IN OPMV NO.122 OF 2013 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-IV, PATHANAMTHITTA ``` ## **`APPELLANT/2ND RESPONDENT :-`** ``` THE NEW INDIA ASSURANCE CO. LTD PATHANAMTHITTA REPRESENTED BY ITS DEPUTY MANAGER,REGIONAL OFFICE, M.G ROAD, ERNAKULAM ``` ``` BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI ``` ## **`RESPONDENTS / CLAIMANT & RESPONDENTS 3 & 4 :-`** - **`1 HARIKUMAR.K.A., S/O. K. KOCHUVELU, KOCHU VADAKKETHIL HOUSE,RANNI, PERUNADU P.O, RANNI,PATHANAMTHITTA DISTRICT PIN 689 647`** - **`2 BINU VIKRAMAN, D/O. T.K VIKRAMAN,SIVAPRIYA HOUSE, OMALLOOR,PATHANAMTHITTA 689 645`** - **`3 MADHURI, AGED 9,D/O. BINU VIKARAMAN,SIVAPRIYA HOUSE, OMALLOOR,PATHANAMTHITTA, REPRESENTED BY MOTHER 2ND RESPONDENT PIN 689 645`** ``` BY ADV SRI.K.N.RADHAKRISHNAN(THIRUVALLA) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2025, ALONG WITH MACA.1408/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NOs. 1407 & 1408 OF 2017 ``` ``` 3 ``` **==> picture [57 x 57] intentionally omitted <==** ## `2025:KER:24697` ## **COMMON JUDGMENT** The 2[nd] respondent in O.P.(M.V.) No.159/2013 on the file of the Additional Motor Accident Claims Tribunal-IV, Pathanamthitta is the appellant in MACA No.1408 of 2017. The 2[nd] respondent in O.P.(MV) No.122 of 2013 on the file of the Additional Motor Accident Claims Tribunal-IV, Pathanamthitta is the appellant in MACA No.1407 of 2017. (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 of the 12 year old minor child, who died in a motor vehicle accident that occurred on 27.11.2012. Before the Tribunal, they filed separate O.Ps and the Tribunal has passed two separate awards. According to them, on 22.17.2012 at about 04.30 pm, while the deceased child along with her mother was walking along the road, a Scorpio car bearing Registration No.KL-03/P-4661 driven by the 1[st] respondent in a rash and negligent manner knocked her down. As a result of the accident, she sustained serious injuries and succumbed to the injuries on the very same day. 3. The 2[nd] respondent is the insurer of the offending vehicle. ``` MACA NOs. 1407 & 1408 OF 2017 ``` ``` 4 ``` **==> picture [57 x 57] intentionally omitted <==** ## `2025:KER:24697` 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.15,43,000/-. 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. 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.12,24,000/- to the mother of the deceased and a consolidated sum of Rs.50,000/- to the father of the deceased and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioners preferred these appeals. 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.A.R.George, the learned standing counsel appearing for the appellants/insurance company, Sri.K.N.Radhakrishnan Thiruvalla the ``` MACA NOs. 1407 & 1408 OF 2017 ``` ``` 5 ``` **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:24697 ``` learned counsel appearing for the respondent in MACA No.1407 of 2017 and Sri.A.N.Santhosh, the learned counsel appearing for the respondent in MACA No.1408 of 2017. 10. The learned senior counsel appearing for the appellant in both the cases would argue that the Tribunal was not justified in fixing the notional income of the child at Rs.6,000/- and thereafter adding 50% of the income toward future prospects. Further he would argue that the Tribunal has awarded a sum of Rs.1,00,000/- on the head loss of love and affection and another Rs.1,00,000/- towards loss of estate. Relying upon the decision of Hon’ble Supreme Court in **Meena Devi v. Nunu Chand Mahto & Others** [AIR 2022 SC 5006], he would argue that in similar incidents the Apex Court has awarded a maximum compensation of Rs.5,00,000/- alone. In the case of **Kusmi Devi v. Md. Kasim [2023 KHC 5362],** in addition to Rs.5,00,000/awarded by the High Court a sum of Rs.1,00,000/- was awarded on the head ‘global compensation’. Therefore, according to him, the compensation awarded by the Tribunal is on the higher side. 11. On the other hand, the learned counsel for the mother relied upon the decision of this Court in **National Insurance Company Ltd. V. Assainar** [2019 (4) KLT 39], and would argue that in the above decision the learned Single judge has formulated a schedule for awarding compensation to ``` MACA NOs. 1407 & 1408 OF 2017 ``` ``` 6 ``` **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:24697 ``` the children between the age group 5-15, after analysing all the important decisions on the point. Therefore, according to him, in this case the accident occurred in the financial year 2012-13 and as such Rs.73,000/- is to be taken as the annual income of the child and multiplier to be applied is 15. After deducting 1/3[rd ] towards personal and living expenses and balance will come to Rs.7,30,000/-. He claims that in addition to the same, towards conventional heads the normal amounts are also to be awarded. 12. It is true that in the decision in **Meena Devi (supra)** the compensation awarded was only Rs.5,00,000/-. As argued by the learned counsel for the petitioner the decision in **Kishan Gopal and Another v. Lala and Others,(2014) 1 SCC 244** also the total compensation awarded was only Rs.5,00,000/-.In **Kusumi Devi (supra)** the compensation awarded was Rs.6,00,000/-. 13. In **Kusumi Devi (supra)** , the accident occurred in the year 1994. In the decision in **Kishan Gopal (supra), and Kusumi Devi (supra)** , the accident was in 1992 and 1981 respectively. The reason given in those cases for enhancing the compensation is decrease in money value. In the instant case, the accident occurred in the year 2012, much after the accident involved in **Kishan Gopal** , and **Kusumi Devi** . In the meantime the money value has decreased considerably. In the above circumstance, I am inclined to ``` MACA NOs. 1407 & 1408 OF 2017 ``` ``` 7 ``` **==> picture [57 x 57] intentionally omitted <==** ## `2025:KER:24697` accept the dictum laid down in **Assainar (supra),** in which the decrease in money value has been properly addressed. As per the above decision, a sum of Rs.7,30,000/- is to be awarded towards loss of dependency. 14. In addition to the same, the petitioners are also entitled to get the compensation on conventional heads as laid down by the Hon’ble Supreme Court in **National Insurance Co. Ltd v. Pranay Sethi** [(2017) 16 SCC 680]. As per the above decision, 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, petitioners together are entitled to get a sum of Rs.96,800/- (48,400 x 2). 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. From the award, it is clear that the child was in the custody of her mother. It was in the above context, the Tribunal has awarded only ``` MACA NOs. 1407 & 1408 OF 2017 ``` ``` 8 ``` **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:24697 ``` Rs.50,000/- to the father of the child and major portion of the compensation was awarded to the mother. In the above circumstance, I am inclined to award only a sum of Rs.50,000/- to the father and the balance amount is to be awarded to the mother. 17. Therefore, the petitioners/respondents are entitled to get a total compensation of Rs.8,90,100/- **,** as modified and recalculated above and given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded by**<br>**Tribunal (in Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Loss of dependency|972000|7,30000| |2|Funeral expenses|25,000|18,150| |3|Loss of love and affection|100000|Nil| |4|Pain and sufferings|25000|25000| |5|Loss of estate|100000|18150| |6|Transport to hospital|1000|1000| |7|Damage to clothings|1000|1000| |8|Loss of consortium|Nil|96,800| ||**Total**|**12,24,000**|**8,90,100**| ||**Reduced to Rs.**|**3,33,900**|| ``` MACA NOs. 1407 & 1408 OF 2017 ``` ``` 9 ``` **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:24697 ``` 18. In the result, these appeals are disposed of, and the 2[nd] respondent is directed to deposit a total sum of Rs.8,90,100/- (Rupees Eight Lakh Ninety Thousand One 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, with proportionate costs, within a period of two months from today. 18. On depositing the aforesaid amount, the Tribunal shall disburse Rs.50,000/- to the father of the deceased and the entire balance amount to the mother of the deceased, excluding court fee payable, if any, without delay, as per rules. Sd/- ## **C. PRATHEEP KUMAR, JUDGE** SMA