National Insurance Company Ltd. v. Chellamma and Others

``` 2025:KER:27128 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` THURSDAY, THE 20[TH] DAY OF MARCH 2025/29TH PHALGUNA, 1946 ``` ``` MACA NO. 2264 OF 2015 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 30.08.2014 IN OPMV NO.658 OF 2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM. ``` ## **`APPELLANT:`** ``` NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, KOLLAM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G ROAD, ERNAKULAM. ``` ``` BY ADV SEBASTIAN VARGHESE ``` ## **`RESPONDENTS:`** ``` 1CHELLAMMA, AGED 54 YEARS, W/O. MADHAVAN, POOLETHU PUTHEN VEEDU, NEAR TETTIMURI TEMPLE, IVERKALA EAST P.O, KINNATHOOR VILLAGE, KOLLAM - 691 507. ``` ``` 2RAJESH, AGED 32 YEARS, S/O. MADHAVAN, POOLETHU PUTHEN VEEDU, NEAR TETTIMURI TEMPLE, IVERKALA EAST P.O, KINNATHOOR VILLAGE, KOLLAM - 691 507. ``` ``` 3RAJEEV, AGED 28 YEARS, S/O. MADHAVAN, POOLETHU PUTHEN VEEDU, NEAR TETTIMURI TEMPLE, IVERKALA EAST P.O, KINNATHOOR VILLAGE, KOLLAM - 691 507. ``` M.A.C.A.No.2264 of 2015 ``` -2- ``` **==> picture [57 x 57] intentionally omitted <==** ## `2025:KER:27128` - **`4 RAJI, AGED 26 YEARS, D/O. MADHAVAN, POOLETHU PUTHEN VEEDU, NEAR TETTIMURI TEMPLE, IVERKALA EAST P.O, KINNATHOOR VILLAGE, KOLLAM - 691 507.`** - **`5 RAJAN P, S/O. PADMANABHAN PANIKER, ROOPASREE (FERA NAGAR-42), MUNDAKKAL MIDDLE, UDAYAMARTHANDAPURAM CHERRY, KOLLAM - 691 009, KERALA.`** - **`6 SHAJI C.R, S/O. RAJAPPAN, CHIRAYIL VEEDU,VIYATRA COLONY, ANDHAKARANAZHY P.O, POTTANAKKADU VILLAGE, CHERTHALA, ALAPPUZHA - 688 531.`** ``` BY ADVS. SRI.M.R.DHANIL SRI.M.H.HANIL KUMAR SRI.B.MOHANLAL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.2264 of 2015 **==> picture [57 x 57] intentionally omitted <==** ## `2025:KER:27128` ``` -3- ``` ## **J U D G M E N T** (Dated this the 20[th] day of March, 2025) The 3[rd] respondent in O.P.(M.V.) No.658/2012 on the file of the Motor Accident Claims Tribunal, Kollam 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 under Section 166 of the Motor Vehicles Act, 1988, by the wife and children of the deceased by name Madhavan, who died in a motor vehicle accident that occurred on 01.01.2012. According to them, on 01.01.2012, at about 5.30 a.m., the deceased was knocked down by a Maruthi Omni van bearing Registration No.KL-2/AH-7250 driven by the 2[nd] respondent. As a result of which he sustained serious injuries and later on he succumbed to the injuries, on the same day. 3. The 1[st] 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 compensation claimed in the O.P. was Rs.35,00,000/- 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 M.A.C.A.No.2264 of 2015 **==> picture [57 x 57] intentionally omitted <==** ## `2025:KER:27128` ``` -4- ``` documentary evidence Exts.A1 to A11. No 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.19,72,736/- 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.Sebastian Varghese, the learned Standing Counsel appearing for the petitioner/appellant, Sri.M.R.Dhanil, the learned Counsel for the respondent Nos.1 to 4 and Sri. B.Mohanlal, the learned counsel appearing for respondent Nos.5 and 6. 10. The Point: In this case the accident as well as valid policy of the offending vehicle are admitted. One of the arguments advanced by the learned counsel for the appellant is that the tribunal has taken the full salary of the deceased as notional income for the purpose of assessing the loss of dependency. According to him, the tribunal ought to have taken only 50% of the salary. However, the M.A.C.A.No.2264 of 2015 ``` 2025:KER:27128 ``` **==> picture [57 x 57] intentionally omitted <==** ``` -5- ``` law is well settled that in the case of death, the full salary of the deceased is to be taken as notional income, for the purpose of assessing the loss of dependency. In the above circumstances, I do not find any merits in the above argument advanced by the learned counsel for the appellant. 11. On the other hand, the learned counsel for the petitioners would argue that the income of the deceased as fixed by the Tribunal is not correct. According to him, the deceased was working as drain cleaner in Kollam Corporation (Health Department), earning Rs.25,788/- per month, However, the tribunal has taken the notional income as Rs.25,430/- after deducting the allowances. 12. From Ext.A11 salary certificate, it is revealed that the total salary of the deceased was Rs.25,788/-. However, it appears that, the tribunal has taken the notional income as Rs.25,430/- after deducting allowances. The above procedure adopted by the tribunal is not correct, as the full salary including allowances is to be taken for assessing the loss of disability. Therefore the notional income of the deceased is liable to be taken as Rs.25,788/-. 13. On the date of accident, the deceased was aged 56 years. Therefore, 15% 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 9, as held in **Sarla Verma v. Delhi** M.A.C.A.No.2264 of 2015 ``` 2025:KER:27128 ``` **==> picture [57 x 57] intentionally omitted <==** ``` -6- ``` **Transport Corporation,** (2009) 6 SCC 121. Since the deceased was married who left behind 4 dependents, towards personal and living expense, 1/4 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.24,02,152/-. 14. The Tribunal has awarded Rs.5,000/- towards loss of estate, Rs.25,000/- towards funeral expenses, Rs.1,00,000/- towards loss of consortium and Rs.10,000/- 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, 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.1,93,600/- (48,400 x 4). 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 M.A.C.A.No.2264 of 2015 **==> picture [57 x 57] intentionally omitted <==** ## `2025:KER:27128` ``` -7- ``` Tribunal has not awarded any compensation. The deceased died in this case on the date of the accident. In the above circumstances, I hold that an amount of Rs.25,000/- is awarded towards the head of pain and suffering. 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/appellants are entitled to get a total compensation of Rs.26,60,052/-, as modified and recalculated above and given in the table below, for easy reference: |Sl.<br>No<br>.|Head of Claim|Amount awarded<br>by Tribunal (in Rs.)|Amount Awarded<br>in Appeal (in Rs.)| |---|---|---|---| |1|Transportation to<br>hospital|2,000/-|2,000/-| |2|Damage to colthing<br>and articles|1,000/-|1,000/-| |3|Funeral expenses|25,000/-|18,150/-| |4|Compensation for pain<br>and suferings|---|25,000/-| |5|Loss of consortium|1,00,000/-|1,93,600/-| |6|Loss of love and<br>afection|10,000/-|Nil| |7|Loss of estate|5,000/-|18,150/-| |8|Compensation for loss<br>of dependency|18,29,736/-|24,02,152/-| ||**Total**|19,72,736/-|**26,60,052/-**| ||Enhanced Rs.6,87,316/-||| M.A.C.A.No.2264 of 2015 ``` 2025:KER:27128 ``` **==> picture [57 x 57] intentionally omitted <==** ``` -8- ``` 19. In the result, this Appeal is disposed of directing the 3rd respondent to deposit a total sum of Rs.26,60,052/- (Rupees twenty six lakhs sixty thousand and fifty two Only), less the amount already deposited, if any, along with interest @ 9% per annum, from the date of the petition till realisation/deposit, excluding interest for a period of 260 days, the period of delay in filing the appeal, with proportionate costs, 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** ADS