New India Assurance Co. Ltd. v. Bindu and Others

``` 2025:KER:20598 ``` **==> 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. 1267 OF 2012`** ``` AGAINST THE ORDER DATED 01.04.2011 IN OPMV NO.1002 OF 2006 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA ``` ## **`APPELLANT/RESPONDENT NO.3:`** ``` NEW INDIA ASSURANCE CO.LTD. ALAPPUZHA BRANCH, REP. BY ITS MANAGER. ``` ``` BY ADVS. ``` ``` SHRI.LAL K.JOSEPH, SC, NEW INDIA ASSURANCE COMPANY LTD. V.S.SHIRAZ BAVA ``` ## **`RESPONDENTS/PETITIONERS 1 TO 3 AND RESPONDENTS 1 AND 2:`** ``` 1BINDU AGED 45 YEARS, W/O.M.R.PRAKASAN, MELAPPALLIL HOUSE, M.P.WARD 9, MUHAMMA P.O., ALAPPUZHA, PIN-688525. ``` - **`2 KRISHNA PRAKASH`** ``` AGED 9 YEARS, D/O.PRAKASHNAN MELAPPALLIL HOUSE, M.P.WARD 9, MUHAMMA P.O., ALAPPUZHA, REP. BY HER MOTHER &AMP; GUARDIAN BINDU, AGED 45 YEARS, W/O.M.R.PRAKASAN, MELAPPALLIL HOUSE, M.P.WARD 9, MUHAMMA P.O., ALAPPUZHA, PIN - 688 525. ``` ## **`3 NARAYANI`** ``` AGED 81 YEARS, W/O.LATE RAGHAVAN, &AMP; M/O.M.R.PRAKASAN, MELAPPALLIL HOUSE, M.P.WARD 9, MUHAMMA P.O., ALAPPUZHA, PIN - 688 525. ``` **MACA No.1267 of 2012** ``` 2 ``` ``` 2025:KER:20598 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 4B.SNEHALATHA W/O.SIVANANDAN, SIVA NILAYAM, MAMAM, PARAYATHKONAM P.O., KIZHUVALLAM PANCHAYATH, WARD V, ATTINGAL, THIRUVANANTHAPURAM, PIN - 695 101. ``` ``` 5JENIL S.S. S/O.SIVANANDAN, SIVA NILAYAM, MAMAM, PARAYATHKONAM P.O., KIZHUVALLAM PANCHAYATH, WARD V, ATTINGAL, THIRUVANANTHAPURAM, PIN - 695 101. ``` ``` BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA ``` ``` 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.1267 of 2012** ``` 3 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`2025:KER:20598`** ## **J U D G M E N T** Dated this the 07[th] day of March, 2025 The Respondent No.3 in O.P.(M.V.) No.1002/2006 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 wife, minor child and mother of the deceased by the name of M. R. Prakasan, who died in a motor vehicle accident that occurred on 07.01.2006. According to them, on 07.01.2006, at about 3:00 am, while the deceased was riding a Scooter, a car having Reg No.KL-16/B232, driven by the 2[nd] respondent in a rash and negligent manner, knocked him down, and as a result of which he sustained serious injuries, and he succumbed to the injuries on the same day. 3. The 1st respondent is the owner , the 2nd respondent is the driver, and the 3rd 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.19,04,320/-, limited to Rs.19,00,000/-. **MACA No.1267 of 2012** ``` 4 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:20598 ``` 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 A15 and B1. No oral 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.4,82,640/-, and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, Respondent No.3 in O.P.(MV) preferred this appeal. 8. Now the point that arises for consideration is the following: _1) Whether the quantum of compensation awarded by the Tribunal is just and reasonable?_ _2) Whether the accident occurred due to the negligence of the deceased, as alleged by the appellant?_ 9. Heard, Sri.Lal J. Joseph, the learned Counsel appearing for the appellant, and Sri. A. T. Anilkumar, the learned Standing Counsel for **MACA No.1267 of 2012** ``` 5 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`2025:KER:20598`** the 3rd respondent. 10. The learned counsel for the 3[rd] respondent/appellant would argue that the accident occurred due to the negligence of the deceased himself and not because of the negligence of the 2nd respondent. However, it is to be noted that in this case, the petitioners produced Ext.A7, a copy of the charge sheet involved in the crime registered by the police in respect of the above accident. In Ext.A7 there is a specific finding to the effect that the accident occurred due to the negligence of the 2nd respondent. There is no contra evidence in this case to disbelieve Ext.A7. In the above circumstances, I find no merits in the argument advanced by the learned counsel for the 3rd respondent that the accident occurred due to the negligence of the deceased. 11. The learned counsel for the petitioners would argue that the notional income of the deceased fixed by the Tibunal at Rs.5,280/- is on the lower side. He would argue that as per the decision of the Hon’ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [2011 (13) SCC 236], the notional income of a coolie during the year 2006 will come to Rs.5,500/-, and as such, the notional income of the deceased may not be fixed below that of a coolie. The learned counsel for the 3[rd] respondent relied upon the decision of a Single Bench of **MACA No.1267 of 2012** ``` 6 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:20598 ``` this Court in _**Abbas v. Sabira [2024 (4) KLT 797]**_ and argued that in the absence of an appeal or cross objection from the side of the claimant, compensation cannot be enhanced in an appeal filed by the insurance company. He has also relied upon the decision of the Hon'ble Supreme Court in _**Sangit Arya and Others v. Oriental Insurance Company Limited and Others [2020 KHC 6423]**_ . 12. In the above decision in paragraph 9 the Apex Court held that: _“Even though the Claimants/ Appellants herein did not file an Appeal against the Award dated 22.12.2009 passed by the MACT before the High Court, we deem it appropriate to enhance the compensation by exercising our jurisdiction under Art.142 of the Constitution of India in order to do complete justice between the parties.”_ 13. The learned counsel would argue that, in the above decision, the compensation was enhanced by the Apex Court by invoking the power under Article 142 of the Constitution, and as such, this Court has no power to enhance compensation in an appeal filed by the Insurance Company. 14. In the decision in **Nagappa v. Gurudayal Singh and** **MACA No.1267 of 2012** ``` 7 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:20598 ``` **Others, AIR 2003 SC 674** , a three Judges Bench of the Hon'ble Supreme Court held that there is no restriction on the Tribunal or Court to award a compensation amount exceeding the claim amount, and it is the duty of the Tribunal/Court to award just compensation that is reasonable on the basis of evidence produced by the High Court. 15. In the decision in **APSRTC represented by its General Manager and Ors. v. V.M.Ramadevi, AIR 2008 SC 1221** , another Bench of the Hon'ble Supreme Court, relying upon the decision in **Nagappa** (supra), upheld the action of the High Court in enhancing the compensation of the claimant in the appeal filed by the insurance Company even though the claimant only filed an appeal against the order of the Tribunal. 16. In the decision in **Surekha and Others v. Santhosh and Others, 2020 ACJ 2156** , the Apex Court was dealing with the case in which the Bombay High Court ruled that though the appellants were entitled to get an enhancement in compensation, the same cannot be granted as they failed to file a Cross-Objection. In appeal, a three Judges Bench of the Apex Court held in paragraph 3 that: _“By now it is well settled that in the matter of insurance claim_ _compensation in reference to the motor accidents, the Court_ **MACA No.1267 of 2012** ``` 8 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:20598 ``` _should not take hyper-technical approach and ensure that just compensation is awarded to the affected person or the claimants.”_ 17. In the decision in _**Minu Rout & Ors. v. Satya Pradyumna Mohapatra & Ors. [2013 10 SCC 695].**_ Though the claim of the appellant is wants Rs.5,000/-, though the income claimed by the appellant was Rs.5,000/-. The Apex Court held that for the purpose of determining the loss of dependency, the actual entitlement of the salary of the deceased would have been taken as Rs.6,000/- per month by the Tribunal for awarding just and reasonable compensation, which is our statutory duty of the Tribunal and Appellate Court. 18. In the decision in _**Mubarak v. The Divisional Manager, New India Assurance Co. Ltd, [2024 (5)KLT 803]**_ . This Court held that it is a duty of the Tribunal and the High Court to award just compensation under each type, and it found necessary by ignoring the claim made in the application for compensation. In the above decision, though the monthly income claimed was Rs.5,000/-, the Court has enhanced the same to Rs.8,000/-. **MACA No.1267 of 2012** ``` 9 ``` **==> picture [58 x 58] intentionally omitted <==** **`2025:KER:20598`** 19. In the decision in Sasidharan Namboothiri v. Rajeev Kesavan. _**[2025 KHC online 85],**_ also this Court held that the Tribunals as well as this Court have not only the Authority but also a duty to award just and reasonable compensation with the claimants of the motor vehicles accident, and for that purpose, on a deserving basis, even the notional income can be fixed over and above what is claimed in the original petition. 20. In the light of the above decisions, I do not find any merits in the argument advanced by the learned counsel for the 3[rd] respondent that the notional income of the victim cannot be fixed over and above what is claimed in the original petition. Therefore, the notional income of the deceased is fixed at Rs.5,500/-. 21. On the date of the accident, the deceased was aged 44 years. Therefore, 25% 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 14, as held in **Sarla Verma v. Delhi Transport Corporation** (2009) 6 SCC 121. Since the deceased was married who left behind three dependents, towards personal and living expenses, 1/3 of the income is liable to be deducted, as held in **Sarla Verma** (supra). In the above circumstances, the loss of **MACA No.1267 of 2012** ``` 10 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`2025:KER:20598`** dependency will come to **Rs.7,70,000/-.** 22. The Tribunal has awarded, Rs.2,000/- towards funeral expenses, Rs.5,000/- towards loss of consortium, and Rs.5,000/- 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 expenses, 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.1,45,200 (48,400 x 3). 23. 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. 24. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.5,000/-, which according to the learned counsel for the petitioners, is on the lower side. The deceased died on the date of the **MACA No.1267 of 2012** ``` 11 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:20598 ``` 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/-. 25. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 26. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.9,77,500/-, 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|Transport to hospital|1,000/-|1,000/-| |**2**|**Funeral expenses**|**2,000/-**|**18,150/-**| |**3**|**Loss of consortium**|**5,000/-**|**1,45,200/-**| |**4**|**Pain and suffering**|**5,000/-**|**25,000/-**| |6|Loss of love & affection etc.|5,000/-|Nil| |**7**|**Loss of dependency etc.**|**4,64,640/-**|**7,70,000/-**| |**8**|**Loss of estate**|**Nil**|**18,150/-**| ||**Total**|**4,82,640/-**|**9,77,500/-**| ||**Enhanced to Rs.**|**4,94,860/-**|| 27. In the result, this Appeal is allowed in part, and the 3[rd] respondent is directed to deposit a total sum of Rs.9,77,500/- (Rupees Nine **MACA No.1267 of 2012** ``` 12 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:20598 ``` Lakhs Seventy Seven Thousand and Five Hundred Only), less the amount already deposited, if any, along with interest @ 8% per annum till realisation/deposit, excluding interest for a period of 324 days, the period of delay in filing the appeal, with proportionate costs, 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