National Insurance Company Limited v Rajesh N. Pillai and Smitha Vikraman Nair

``` 2025:KER:23796 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` FRIDAY, THE 7[TH] DAY OF MARCH 2025 / 16TH PHALGUNA, 1946 ``` ## **`MACA NO. 2203 OF 2018`** ``` AGAINST THE ORDER DATED 08.05.2017 IN OPMV NO.364 OF 2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` NATIONAL INSURANCE COMPANY LIMITED TIRUVALLA NOW REPRESENTED BY ITS ASST. MANAGER,KOCHI REGIONAL OFFICE,OMANA BUILDING, M.G.ROAD,KOCHI - 35. ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS/PETITOINER:`** ``` 1RAJESH N.PILLAI S/O.NARAYANA PILLAI,RADHALAYAM, NEAR PALAKULAM,KOTTAMKULANGARA WARD, AVALOOKUNNU P.O., ALAPPUZHA - 688 006. ``` ``` 2SMITHA VIKRAMAN NAIR W/O.RAJESH.N.PILLAI,RADHALAYAM, NEAR PALAKULAM,KOTTAMKULANGARA WARD, AVALOOKUNNU P.O., ALAPPUZHA - 688 006. ``` ``` BY ADVS. SRI.SREELAL N.WARRIER SRI.M.S.AMAL DHARSAN ``` **MACA No.2203 of 2018** ``` 2 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`2025:KER:23796`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **MACA No.2203 of 2018** ``` 3 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`2025:KER:23796`** ## **J U D G M E N T** Dated this the 07[th] day of March, 2025 The 3[rd] respondent in O.P.(M.V.) No.364/2010, on the file of the Motor Accident Claims Tribunal, Alappuzha, is the appellant 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 Section 166 of the Motor Vehicles Act, 1988, by the parents of a 3 year old child, who died in a motor vehicle accident that occurred on 10.08.2010. According to them, on 10.08.2010, at about 10.30 a.m., while the 1[st] petitioner was riding his motorcycle through the Alappuzha - Thanneermukkom public road, carrying his son Vismay, the minor child, a lorry bearing Reg. No. KL-8/G 826 driven by the 2[nd] respondent in a rash and negligent manner hit the motorcycle. As a result of which, the child was thrown down, sustained serious injuries, and he succumbed to the injuries on the same day. 3. The 1[st] respondent is the owner, and the 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.11,08,000/-. **MACA No.2203 of 2018** ``` 4 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`2025:KER:23796`** 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 testimonies of PWs1 to 3 and Exts. A1 to A20, and X1. No oral or documentary 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.8,70,500/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the Respondent No. 3 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. P. Jacob Mathew, the learned Counsel appearing for the petitioners/appellants, and Sri. Sreelal N. Warrior, 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 **MACA No.2203 of 2018** ``` 5 ``` **==> picture [58 x 58] intentionally omitted <==** **`2025:KER:23796`** learned counsel for the petitioner is regarding the notional income of the child. The Tribunal fixed the notional income at Rs.3,500/-, applied the multiplier of 15 and assessed the compensation for loss of dependency at Rs.6,30,000/-. In addition to the same Rs.35,000/-, it was awarded towards funeral expenses, Rs.10,000/- towards pain and suffering, Rs.1,00,000/towards love and affection, and another Rs.50,000/- for mental shock. 11. At the time of arguments, the learned counsel for the 3[rd] respondent/appellant relying upon the decision of the Hon'ble Supreme Court in _**Meena Devi vs Nunu Chand Mahto @ Nemchand Mahto [2023 (1) SCC 204]**_ and _**Kusmi Devi v. Md. Kasim [2023 KHC 5362],**_ would argue that the Tribunal was not justified in taking the notional income of the deceased at Rs.3,500/- and as such the compensation for the loss of dependency assessed by the Tribunal is on the higher side. He would also argue that the compensation awarded on the head’s funeral expenses, pain and suffering, love and affection and mental shock is on the higher side. 12. On the other hand, the learned counsel for the petitioner, Sri.Sreelal Warrior, would argue that the compensation awarded by the Tribunal is just and reasonable and there is no scope for any interference. 13. In the decision in _**Meera devi (Supra)**_ in the case of a 12year-old child involved in an accident that occurred on 29.07.2003, the **MACA No.2203 of 2018** ``` 6 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:23796 ``` Tribunal fixed the annual notional income at Rs.15,000/- and awarded a lump sum compensation of Rs.1,50,000/-. In the appeal the annual notional income of the deceased was taken as Rs.30,000/-, applied the multiplier of 15 and deducted 1/3 towards personal living expenses, and assessed a compensation of Rs.3,00,000/-. The Hon'ble Supreme Court, however, enhanced the compensation from Rs.3,00,000/- to Rs.5,00,000/-. 14. In the decision in **Kusmi Devi (Supra),** the deceased was a 3-year-old child, as in the instant case. In this case also the Tribunal awarded only a sum of Rs.1,50,000/- with 9% interest. The High Court has enhanced the compensation to Rs.5,00,000/-. In the appeal, the Hon'ble Supreme Court has awarded a further sum of Rs.1,00,000/- on the head “Global Enhancement”. 15. In the decision in _**Kusmi Devi**_ was passed by the Hon'ble Apex Court on 15.05.2023. However, the accident in that case was of the year 1994. On the other hand, in the decision in the _**Meera devi**_ case, the accident was in the year 2003, and the deceased was aged 12. In the above decisions, no separate compensation was awarded by the Apex Court towards love and affection, pain and suffering, funeral expenses and for other conventional heads, including compensation for mental shock. In the above circumstances, I hold that the Tribunal was incorrect in awarding a sum of Rs.25,000/- **MACA No.2203 of 2018** ``` 7 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:23796 ``` towards funeral expenses, Rs.10,000/- towards pain and suffering, Rs.1,00,000/- towards love and affection, and Rs.50,000/- towards mental shock, and as such, the compensation awarded on those heads is liable to be deducted. 16. However, considering the fact that, in the decision in **Kusmi devi,** a total sum of Rs.6,00,000/- was awarded, and in this case, the accident was in 2009, I hold that the compensation for loss of dependency awarded by the Tribunal in this case namely Rs.6,30,000/-, is not on the higher side, and as such, the compensation awarded by the Tribunal on the head loss of dependency is upheld. Considering the facts, interest @8% will be a reasonable one. 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.6,35,500/-, 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 earning of 2ndclaimant<br>for six months|50,000/-|Nil| **MACA No.2203 of 2018** ``` 8 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`2025:KER:23796`** ||||**`2025:KER:2379`**| |---|---|---|---| |2|Transport to hospital|5,000/-|5000| |3|Damage to clothing and articles|500/-|500| |4|Funeral expenses|25,000/-|Nil| |5|Compensation for pain and<br>sufferings|10,000/-|Nil| |6|Compensation for love and<br>affection|1,00,000/-|Nil| |7|Compensation for loss of<br>sustained to the claimants<br>(dependency)|6,30,000/-|6,30,000/-| |8|Compensation for mental shock|50,000/-|Nil| ||**Total**|**8,70,500/-**|**6,35,500/-**| ||Amount reduced Rs.|2,35,000/-|| 19. In the result, this Appeal is allowed in part, and the appellant is directed to deposit a total sum of Rs.6,35,500/- (Rupees Six Lakh Thirty Five Thousand and Five Hundred Only), less the amount already deposited, if any, along with interest @ 8% per annum from the date of the petition till realisation/deposit, within a period of two months from today. 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** HKH/07.03.2025