MACA Nos.1673 & 2655 OF 2017

``` MACA Nos.1673 & 2655 OF 2017 ``` ``` 1 ``` ``` 2025:KER:22208 ``` **==> picture [57 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` THURSDAY, THE 6[TH] DAY OF MARCH 2025 / 15TH PHALGUNA, 1946 ``` ``` MACA NO. 1673 OF 2017 ``` ``` AGAINST THE AWARD DATED 01.03.2017 IN OPMV NO.256 OF 2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM ``` ## **`APPELLANT/3RD RESPONDENT :-`** ``` NATIONAL INSURANCE COMPANY LIMITED KOTTAYAM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. ``` ``` BY ADV SEBASTIAN VARGHESE ``` ## **`RESPONDENTS/PETITIONERS 1 TO 3/RESPONDENTS 1 & 2 IN`** ``` - O.P(MV) : ``` - **`1 SAJI KURIAN, AGED 46 YEARS S/O.LATE KURIAN, AGED 46 YEARS, CHENNATTU HOUSE, KANJIRAM P.O., THIRUVARPU VILLAGE, KOTTAYAM, PIN 686 020.`** - **`2 SUJA VARGHESE, AGED 43 YEARS W/O SAJI KURIAN, AGED 43 YEARS, CHENNATTU HOUSE, KANJIRAM P.O., THIRUVARPU VILLAGE, KOTTAYAM, PIN 686 020.`** ``` 3SOBIN KURIAN (MINOR), AGED 15 YEARS S/O.SAJI KURIAN, AGED 15 YEARS, CHENNATTU HOUSE, KANJIRAM P.O., THIRUVARPU VILLAGE, KOTTAYAM, REPRESENTED BY 1ST PETITIONER FATHER AS GUARDIAN SAJI KURIAN,CHENNATTU HOUSE, KANJIRAM P.O., THIRUVARPU VILLAGE, KOTTAYAM, PIN 686 020. ``` ``` MACA Nos.1673 & 2655 OF 2017 ``` ``` 2 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:22208 ``` ``` 4VINEETH K.CHANDRAN S/O.RAMACHANDRAN, KALARICKAL HOUSE, MOOLAVATTAM KARA, NATTAKAM VILLAGE, KOTTAYAM DISTRICT, PIN 686013. ``` - **`5 RAKESH KRISHNAN ENCHAKIDANGIL HOUSE, MOOLAVATTOM P.O., NATTAKAM, KOTTAYAM DISTRICT, PIN 686013.`** ``` BY ADVS. SRI.K.A.HASHIM SRI.M.I.ISMAIL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2025, ALONG WITH MACA.2655/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.1673 & 2655 OF 2017 ``` ``` 3 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:22208 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR`** ``` THURSDAY, THE 6[TH] DAY OF MARCH 2025 / 15TH PHALGUNA, 1946 ``` ## **`MACA NO. 2655 OF 2017`** ``` AGAINST THE AWARD DATED 01.03.2017 IN OP(MV) NO.256 OF 2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM ``` ## **`APPELLANTS/PETITONERS :-`** - **`1 SAJI KURIAN, AGED 44 YEARS S/O. KURIAN, CHENNATTU HOUSE,KANJIRAM P.O, THIRUVARPU VILLAGE, KOTTAYAM PIN - 686 020.`** - **`2 SUJA VARGHESE, AGED 41 YEARS W/O. SAJI KURIAN, AGED 41 YEARS,CHENNATTU HOUSE,KANJIRAM P.O, THIRUVARPU VILLAGE, KOTTAYAM PIN - 686 020.`** - **`3 SOBIN KURIAN, AGED 53 YEARS S/O. SAJI KURIAN, CHENNATTU HOUSE,KANJIRAM P.O, THIRUVARPU VILLAGE, KOTTAYAM PIN - 686 020.REPRESENTED B Y 1ST PETITIONER FATHER AS NEXT FRIEND SAJI KURIAN, AGED 44 YEARS, S/O. KURIAN,CHENNATTU HOUSE,KANJIRAM P.O, THIRUVARPU VILLAGE, KOTTAYAM PIN - 686 020.`** ``` BY ADVS. SRI.K.A.HASHIM SRI.M.I.ISMAIL ``` ## **`RESPONDENTS / RES PONDENTS :-`** - **`1 VINEETHA K.CHANDRAN S/O. RAMACHANDRAN, KALARICKAL HOUSE, MOOLAVATTAM KARA,NATTAKAM VILLAGE,`** ``` MACA Nos.1673 & 2655 OF 2017 ``` ``` 4 ``` **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:22208` ``` PIN - 686 013. ``` ``` 2RAKESH KRISHNAN ENCHAKIDANGIL HOUSE,MOOLAVATTAM P.O, NATTAKAM VILLAGE, PIN - 686 012. ``` ``` 3THE NATIONAL INSURANCE CO LTD KOTTAYAM, PIN - 686 001. ``` ## **`BY ADV SEBASTIAN VARGHESE`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2025, ALONG WITH MACA.1673/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.1673 & 2655 OF 2017 ``` ``` 5 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:22208 ``` ## **COMMON JUDGMENT** The petitioners in O.P.(M.V.) No.256/2015 on the file of the Motor Accident Claims Tribunal,Kottayam is the appellants in MACA No.2655 of 2017 and the 3[rd] respondent in the O.P is the appellant in MACA No.1673 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 and brother of the deceased by name Sojin Kurian, who died in a motor vehicle accident that occurred on 25.12.2014. According to them, on 25.12.2014, at about 04.00 pm, while the deceased was riding pillion on a motorcycle another motorcycle bearing Registration No.KL-05-AE-5326 ridden by the 1[st] respondent in a rash and negligent manner, hit on his motorcycle and as a result of which, he fell down and sustained serious injuries. He succumbed to the injuries on the same day. 3. The 2[nd] respondent is the owner 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 ``` MACA Nos.1673 & 2655 OF 2017 ``` ``` 6 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:22208 ``` compensation claimed in the O.P. was Rs.37,71,000/- limited to Rs.25,00,000/-. 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 oral testimony of PW1and 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.16,15,000/- and directed the insurer to pay the same. 7. Challenging the order of the Tribunal petitioners and the 3[rd] respondent has 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.K.A.Hashim, the learned Counsel appearing for the petitioners and Sri.Sebastian Varghese, the learned Standing Counsel for the 3[rd] respondent. 10. The Point: In this case the accident as well as valid policy of ``` MACA Nos.1673 & 2655 OF 2017 ``` ``` 7 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:22208 ``` 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 Kitchen Assistant earning Rs.600/- per day, but the Tribunal fixed his monthly income at Rs.9,000/-.The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. 11. In order to prove the same, he is relied upon Ext.A8 salary certificate as well as evidence of PW1, his employer. On the other hand, the learned counsel for the 3[rd] respondent would argue that catering job is a seasonal one and as such, it cannot be taken that the deceased gets job on all the days in a month. The learned Standing Counsel further argued that the Tribunal has awarded 50% towards future prospects, which is on the higher side. 12. It is true that PW1 has deposed before the Court that the deceased was working under him, and during the days he was working, he was used to paying Rs.600/- per day. However, there is no evidence to prove that he used to get job on all the days in a month. 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 ``` MACA Nos.1673 & 2655 OF 2017 ``` ``` 8 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:22208 ``` 236], the notional income of a coolie, during the year 2014 will come to Rs.9,500/-. The petitioners produced Ext.A7 ITI course certificate in respect of the deceased, which shows that he has passed the Mechanic Motor Vehicle Course from St.Mary’s Private ITI up to completing the course during 201214. In the above circumstances, considering the entire facts, I hold that the notional income of the deceased could be fixed at Rs.12,000/-. 13. On the date of accident, the deceased was aged 21 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.18,14,400/-. 14. The Tribunal has awarded Rs.10,000/- towards loss of estate, Rs.25,000/- towards funeral expenses 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, ``` MACA Nos.1673 & 2655 OF 2017 ``` ``` 9 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:22208 ``` 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. 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 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/-. 17. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and ``` MACA Nos.1673 & 2655 OF 2017 ``` ``` 10 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:22208 ``` reasonable. 18. Therefore, the petitioners are entitled to get a total compensation of Rs.19,79,500/-, as modified and recalculated above and given in the table below, for easy reference: |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded**<br>**by Tribunal**<br>**(in Rs.)**|**Amount Awarded**<br>**in Appeal**<br>**(in Rs.)**| |---|---|---|---| |1|Transport to hospital|5000|5,000| |2|Damage to clothing|1000|1,000| |3|Loss of dependency|1458000|18,14,400| |4|Pain and sufferings|15000|25,000| |5|Loss of love and affection|1,00,000|Nil| |6|Funeral expenses|25,000|18,150| |7|Loss of estate|10,000|18,150| |8|Loss of consortium|Nil|96,800| |9|Medical expenses|1,000|1,000| ||**Total**|**16,15,000**|**19,79,500**| ||**Enhanced to Rs.**|**3,64,500**|| 19. In the result, these Appeals are disposed of, and the 3[rd] ``` MACA Nos.1673 & 2655 OF 2017 ``` ``` 11 ``` **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:22208 ``` respondent is directed to deposit a total sum of Rs.19,79,500/- (Rupees Nineteen Lakh Seventy Nine Thousand 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, 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** SMA