MACA Nos. 58/2017, 74/2017, 22/2020 and CO No. 179/2022 (Cross Objections) before the High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944** ## **CO NO. 179 OF 2022** **AGAINST THE AWARD IN OPMV 534/2006 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL – III, PATHANAMTHITTA** ## **CROSS OBJECTORS: RESPONDENTS 1 & 2 IN MACA/PETITIONERS:** 1 M.J.PHILIP, MANNIL HOUSE, KADAPRA MURI, KUMBANAD P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN - 689 547. 2 SUSAMMA PHILIP, W/O. M.J.PHILIP, MANNIL HOUSE, KADAPRA MURI, KUMBANAD P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN - 689 547. BY ADV JACOB P.ALEX ## **RESPONDENT: APPELLANT & RESPONDENTS 3 & 4 IN MACA/RESPONDENTS** 1 THE BRANCH MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., THIRUVANANTHAPURAM, PIN- 695 023, REPRESENTED BY ITS MANAGER - LEGAL (RANEEN B.R.KUMAR), BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., 3RD FLOOR, FINANCE TOWER, KALOOR, KOCHI - 682 017. 2 K.O. MATHEW, KARIPPINALIL MANNIL, KUMBAZHA (P.O.), PATHANAMTHITTA DIST., PIN - 689 653. 3 LEE MATHEW, S/O. K.O. MATHEW, KARIPPINALIL MANNIL, KUMBAZHA (P.O.), PATHANAMTHITTA DIST., PIN - 689 653. THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 17.03.2023, ALONG WITH MACA.58/2017, 74/2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CO NO. 179 OF 2022 & con.cases 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 MACA NO. 58 OF 2017** **AGAINST THE AWARD IN OPMV 534/2006 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL – III, PATHANAMTHITTA APPELLANT/3RD RESPONDENT:** THE BRANCH MANAGER, BAJAJ ALLIANZ GENERAL INSUANCE COMPANY LTD THIRUVANANTHAPURAM, REP. BY RANEEN B.R. KUMAR, MANAGER, LEGAL BAJAJ ALLIANZ GENEAL INSURANCE COMPANY LTD 3RD FLOOR, FINANCE TOWER, KALOOR, KOCHI- 682 017 BY ADV SRI.LATHEESH SEBASTIAN ## **RESPONDENTS/PETITIONERS & RESPONDENTS 1 & 2:** 1 M.J. PHILIP, MANNIL HOUSE,KADAPRA MURI, KUMBANADU P.O. THIRUVALLA, PATHANAMTHITTA DIST -689 645 2 SUSAMMA PHILIP, W/O M.J. PHILIP MANNIL HOUSE, KADAPRA MURI, KUMBANADU P.O. THIRUVALLA, PATHANAMTHITTA DIST -689 645 * 3 K.O.MATHEW, KARIPPINALIL MANNIL KUMBANADU P.O. THIRUVALLA, PATHANAMTHITTA DIST -689 645 (DELETED) * 4 LEE MATHEW, S/O K.O.MATHEW KARIPPINALIL MANNIL KUMBANADU P.O. THIRUVALLA, PATHANAMTHITTA DIST -689 645 (DELETED) (The respondents 3 and 4 are deleted from the party array at the risk of the appellant as per the order dated 04.04.2017 in I.A.No.1244/2017 in MACA 58/2017) CO NO. 179 OF 2022 & con.cases 3 SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.03.2023, ALONG WITH CO.179/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CO NO. 179 OF 2022 & con.cases 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 MACA NO. 74 OF 2017** **AGAINST THE AWARD IN OPMV 1033/2006 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL – III, PATHANAMTHITTA** ## **APPELLANT/3RD RESPONDENT:** THE BRANCH MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., THIRUVANANTHAPURAM,REPRESENTED BY RANEEN.B.R.KUMAR, MANAGER -LEGAL, BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., 3RD FLOOR, FINANCE TOWER, KALOOR, KOCHI-682017 BY ADV SRI.LATHEESH SEBASTIAN ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:** 1 ASWIN EMERSON MATHEWS@ASWIN EMERSON S/O. K.A.MATHEWS, AGED 25 YEARS,KALLUPARAMBIL HOUSE, PULARIKKADU WEST,THRIKKANNAPURAM MURI, KOYIPPURAM VILLAGE,PATHANAMTHITTA DISTRICT. PIN-687645. * 2 K.O.MATHEW, KARIPPINALIL MANNIL KUMBANADU P.O. THIRUVALLA, PATHANAMTHITTA DIST -689 645 (DELETED) * 3 LEE MATHEW, S/O K.O.MATHEW KARIPPINALIL MANNIL KUMBANADU P.O. THIRUVALLA, PATHANAMTHITTA DIST -689 645 (DELETED) (The respondents 2 and 3 are deleted from the party array at the risk of the appellant as per the order dated 04.04.2017 in I.A.No.1221/2017) SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX CO NO. 179 OF 2022 & con.cases 5 ## SHRI.MANU SANKAR P. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.03.2023, ALONG WITH CO.179/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CO NO. 179 OF 2022 & con.cases 6 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 CO NO. 22 OF 2020** **AGAINST THE AWARD IN OPMV 1033/2006 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL – III, PATHANAMTHITTA CROSS OBJECTOR: 1st RESPONDENT IN MACA/PETITIONER:** ASWIN EMERSON MATHEWS@ASWIN EMERSON S/O. K.A.MATHEWS, AGED 25 YEARS,KALLUPARAMBIL HOUSE, PULARIKKADU WEST,THRIKKANNAPURAM MURI, KOYIPPURAM VILLAGE,PATHANAMTHITTA DISTRICT. PIN-687645. BY ADV JACOB P.ALEX ## **RESPONDENTS/APPELLANT & RESPONDENTS 2 & 3 IN MACA/RESPONDENTS:** - 1 THE BRANCH MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., TC 28/2222, ANUGRAHA, PAZHAVANGADI, THIRUVANANTHAPURAM -695 023 - 2 K.O.MATHEW, KARIPPINALIL MANNIL KUMBAZHA P.O. PATHANAMTHITTA DIST -689 653 - 3 LEE MATHEW, S/O K.O.MATHEW KARIPPINALIL MANNIL KUMBAZHA P.O. PATHANAMTHITTA DIST -689 653 BY ADV LATHEESH SEBASTIAN THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 17.03.2023, ALONG WITH CO.179/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CO NO. 179 OF 2022 & con.cases 7 ## **JUDGMENT** ## **[CO Nos.179/2022, 58/2017, 74/2017, 22/2020]** I am considering these appeals and the Cross Objections filed in them together, since all of them arise out of the same accident, in which two minor children were involved. 2. One of the aforementioned minor children, by name Depu John Philip, was killed in the accident; while the other child, Aswin Emerson Mathews was injured. 3. The parents of late Depu John Philip filed OP(MV) No.534/2006 before the Motor Accidents Claims Tribunal, Pathanamthitta, seeking compensation to the extent of Rs.15,00,000/-, which has been awarded at a sum of Rs.15,89,356/-. The Insurance Company has filed MACA No.58/2017 impugning the Award as being excessive; while the claimants have filed CO No.179/2022, asserting that the sum awarded is inadequate. 4. While so, Sri. Aswin Emerson Mathews - who was injured in the accident, filed OP(MV) No.1033/2006 before the same Tribunal, seeking compensation of an amount of CO NO. 179 OF 2022 & con.cases 8 Rs.4,59,000/-, limited to Rs.3,00,000/- for his injuries; but which has been awarded to a sum of only Rs.1,41,830/-. The Insurance Company, however, assail this Award, through MACA No.74/2017, saying it is excessive; while CO No.22/2020 has been filed by Sri.Aswin Emerson Mathews, seeking higher amounts, particularly because 50% of the amount awarded has been reduced on the ground that he was a minor and that he was riding the motorcycle without authority and without licence. 5. I have heard Sri.Latheesh Sebastian – learned counsel for the Insurance Company – appellants in both cases and Sri.Joseph P.Alex – learned counsel appearing for the cross objectors in both the cross objections. 6. I have heard the learned counsel for the parties in great detail and also have evaluated the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. 7. I will first deal with the case involving the death of Depu John Philip, namely MACA No.58/2017 and CO CO NO. 179 OF 2022 & con.cases 9 No.179/2022. 8. The accident happened on 31.03.2006, when both the minor children were travelling on a motorbike with deceased Depu John Philip riding it, when it was hit from the rear by the offending vehicle, driven in a rash and negligent manner and at great speed. 9. As said above, Depu John Philip unfortunately succumbed to his injuries and his parents claimed compensation. The learned Tribunal adopted the notional income of the deceased to be Rs.5,000/- per month and granted compensation to his parents for 'loss of dependency' based on such computation; further granting Rs.25,000/towards 'Funeral Expenses' and Rs.10,000/- towards 'Loss of Estate'. A further amount of Rs.2,00,000/- has been awarded towards 'loss of love and affection', but without granting any amount under the head 'loss of consortium'. 10. While the appellant - Insurance Company argues that both the notional income adopted in favour of the deceased and the amounts granted as afore are excessive; the cross objectors impel the contention that it is insufficient CO NO. 179 OF 2022 & con.cases 10 and further that the reduction of 50% out of the amount awarded solely, because the deceased was a minor, is untenable. 11. On the ground of the notional income of the deceased, it is now indubitable, through the various judgments of the Hon'ble Supreme Court, including **Kurvan Ansari v. Shyam Kishore Murmu** [2021 (6) KLT Online 1005], **Meena Devi v. Nunu Chand @ Nemchand Mahto & Ors** [(2023) 1 SCC 204], **Rajendra Sing & Ors. v. National Insurance Company Ltd. & Ors.** [(2020) 7 SCC 256], **R.K.Malik & another v. Kiran Pal & Ors** [(2009) 14 SCC 1] and **Kishan Gopal & another v. Lala & Ors.** [(2014) 1 SCC 244], that the Hon'ble Supreme Court has been adopting the figure for such purpose, in the case of a child below 15 years, between Rs.25,000/- and Rs.30,000/-, even when death happened in the year 1992, or in the year 2012, as the case may be. All these precedents also cover instances of deaths of children who were below 15 years; and in such manner, this Court has already taken a view in **Vinod v. Suresh Kumar** (MACA No.90/2018) that the notional income for a child who is killed in an accident like CO NO. 179 OF 2022 & con.cases 11 this must be reckoned at Rs.30,000/- per annum. Therefore, the reckoning of Rs.5,000/- per annum as the monthly income of the deceased in this case cannot be accepted, and I, therefore, propose to revise it as being Rs.30,000/- per annum. 12. That said, coming to the question of reducing the total compensation by 50%, merely because the deceased was riding the vehicle, though he was a minor, the law has been well settled by the Hon'ble Supreme Court in **Mohammed Siddique and another v. National Insurance Co. Ltd.** [2020 KHC 6043] and **Mohammed Noufal v. Saheed** [2018 (1) KLT 499], that no such could have been done, particularly when the charge sheet establishes that it was the driver of the offending vehicle who was negligent. In any event, merely because the deceased or the injured were not holding valid licences, it cannot be presumed that they were negligent, particularly when the attendant circumstances and the investigation apodicticaly establishes to the contrary. I have, therefore, no doubt that the finding of the learned Tribunal, that the deceased should be reckoned to have been 50% CO NO. 179 OF 2022 & con.cases 12 contributorily negligent for causing the accident, is untenable; and therefore, vacate it fully. 13. Coming to the question of the sum eligible to the claimants under the various other heads, as claimed by them. In **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)], it has been well settled that the compensation eligible to the claimants in connection with the death of the deceased is to be Rs.15,000/- each under the heads 'Funeral Expenses' and 'Loss of Estate'. The learned Tribunal has awarded Rs.25,000/- and Rs.10,000/- respectively and it, therefore, requires to be revised, to bring it in tune with **Pranay Sethi** (supra). 14. That said, the claimants in this case are the parents of the deceased and they are entitled to Rs.40,000/- each under the head 'loss of consortium', though compensation now awarded by the Tribunal under the head 'loss of love and affection' will require to be deleted. 15. I will now turn to the next set of cases, namely MACA No.74/2017 and CO No.22/2020. 16. In this case, the claimant was injured, as I have CO NO. 179 OF 2022 & con.cases 13 said above; and Ext.A8 disability certificate certifies that he is suffering from 5% permanent disability. Here again, the learned Tribunal adopted the notional income of the claimant - who is also stated to be 15 years of age, but without any proof of the same, except the records of the police - to be Rs.5,000/- per month. For the very same reasons - as I have already said above, this will have to be revised to Rs.30,000/- per annum. 17. In this case also, I notice that the learned Tribunal has reduced the award by 50% on the ground that the claimant was negligent since he was a minor. This is egregiously improper, not only for the reasons I have already indited above, but also because no law would stipulate that a minor without a licence cannot ride pillion. Obviously, this will have to be vacated. 18. The medical evidence on record, particularly Ext.A9 - Wound Register and Exts.A10 to A12 Discharge Summaries, show that the claimant suffered from the following injuries: “1) Fracture of shaft of femur right. - 2) Fracture of superior pubic ramii left. CO NO. 179 OF 2022 & con.cases 14 ## 3) Abrasion right elbow. 4) Abrasion left leg.” 19. He underwent three operations, which is also evident from the afore records; and had to be hospitalized for a long period of time, to undergo treatment as an inpatient. The Disability Certificate records all this, to finally arrive at the percentile of his permanent disability as 5%. 20. However, in this particular case, if the income is so reckoned and the percentile of 5% is adopted, the compensation under the head 'disability' would be reduced to a mere Rs.2,250/-, but **Master Mallikarjun v.** **Divisional Manager, the National Insurance Company Limited and another** [(2014) 14 SCC 396] postulates that in such an event and in the case of a child with less than 10% disability, a consolidated figure of Rs.1,00,000/- has been awarded. I am, therefore, of the view that the said amount must certainly be available to the claimant. 21. That being so said, what is now to be decided is whether the compensation awarded by the Tribunal under the various other heads is in order. CO NO. 179 OF 2022 & con.cases 15 22. I notice that the Tribunal has awarded Rs.4,000/towards 'Extra Nourishment' for hospitalization of 29 days; while it has awarded “Bystander's Expenses”, only to the extent of Rs.5,000/- for the said period. The compensation awarded under the head 'pain and suffering' is only Rs.40,000/-; while nothing has been granted for 'Loss of Amenities'. 23. Going by the uncontroverted evidence on record and the trauma suffered by the claimant - which is undoubtedly manifest from the fact that he had to suffer at least 29 days as an inpatient, however, **Mallikarjun** (supra) mandates that the compensation for disability must subsume any sum under this head and under “Loss of Amenities.” 24. Coming to the compensation under the head 'Extra Nourishment' and 'Bystander's Expenses', I am certain that the per day expenses for the same would have to be reckoned as a minimum of Rs.200/-, as far as the 'Extra Nourishment' is concerned; and Rs.300/-, as far as the 'Bystander's Expenses' is concerned, because, even going by the standards of the year 2006 - when the accident occurred – this would have been necessary. CO NO. 179 OF 2022 & con.cases 16 25. I do not propose to modify compensation under any other head, except 'permanent disability', which will have to be reckoned taking the annual income of the claimant to be Rs.30,000/- and the multiplier to be '15' in terms of **Sarla Verma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)], and being guided by the aforementioned precedents, including **Kurvan Ansari** (supra). 26. Before I conclude, I must, however, answer one more contention of Sri.Joseph P. Alex, that both the children must be treated to be of 15 years of age, going by the police records and hence, eligible to be granted compensation using the multiplier of '18' as per **Sarla Verma** (supra). I am afraid that this will not be possible in this case because, apart from the mention that they were pursuing the 10[th] standard in the police records, their dates of birth are not available and their ages have not been specifically proved. The claimants could have easily produced the birth certificates of the children, which would have then been the best evidence in this regard; and in the absence of the same, one cannot affirmatively hold that they were either 15 years of age or older. This Court will, therefore, have to be guided CO NO. 179 OF 2022 & con.cases 17 by the police records; and as has been correctly assessed by the learned Tribunal from it, their age can only be seen to be '15', which is the normal age in the year 2006 when children would complete their 10[th] standard. With such an age being reckoned, the stipulations in **Sarla Verma** (supra) will not apply, because the multiplier of '18' is postulated by it for the age group 16 to 20. Resultantly, - I. MACA No.58/2017 and CO No.179/2022 are - disposed of in the following manner: (a) The findings of the learned Tribunal that the deceased was contributorily negligent to the extent of 50% is vacated. - (b) The compensation under the head “loss of - dependency” is enhanced to Rs.4,50,000/-, reckoning the notional income of the deceased to be Rs.30,000/- per annum and adopting the multiplier '15'. (c) The compensation under the head 'Funeral Expenses' is reduced to Rs.15,000/-, from Rs.25,000/- in terms of **Pranay Sethi** (supra). CO NO. 179 OF 2022 & con.cases 18 (d) The compensation under the head 'Loss of Estate' is enhanced to Rs.15,000/-, from Rs.10,000/-, in terms of **Pranay Sethi** (supra). (e) In all other respects, the Award of the Tribunal will stand intact. (f) Consequently, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8.5%, (reducing it from 9% granted by the Tribunal, in view of the escalation granted by this Court), from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. II. MACA No.74/2017 and CO No.22/2020 are disposed of in the following manner: - (a) The findings of the learned Tribunal that the CO NO. 179 OF 2022 & con.cases 19 contributory negligent to the extent of 50% is vacated. (b) The compensation under the head “permanent disability” is enhanced to Rs.1,00,000/-, from 45,000/- as awarded by the Tribunal, following **Mallikarjun** (supra). (c) The compensation under the head 'pain and suffering' of Rs.40,000/-, awarded by the Tribunal, is deleted. (d) The compensation under the head 'Extra Nourishment' is enhanced to Rs.5,800/-, reckoning Rs.200/per day for such purpose. (e) The compensation under the head 'bystander's expenses' is enhanced to Rs.8,700/-, reckoning Rs.300/- per day for such purpose. - (f) In all other respects, the Award of the Tribunal will - stand intact. (g) Consequently, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8.5%, (reducing it from 9% granted by the Tribunal, in view CO NO. 179 OF 2022 & con.cases 20 of the escalation granted by this Court), from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. **Sd/- DEVAN RAMACHANDRAN** **JUDGE** stu