Nisha K.M. and Others v. Bajaj Alliance General Insurance Co. Ltd.

``` 2025:KER:22259 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` MONDAY, THE 10[TH] DAY OF MARCH 2025/19TH PHALGUNA, 1946 ``` ``` MACA NO. 4232 OF 2018 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 28.11.2013 IN OPMV NO.806 OF 2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR. ``` ``` APPELLANTS: ``` - **`1 NISHA K.M., W/O. LATE HAMEED, CHERUVALLIKUDY HOUSE, PARAPPURAM, PERUMBAVOOR.`** - **`2 PAREED C. (MINOR), (D/B-25/02/2003), S/O. LATE HAMEED, CHERUVALLIKUDY HOUSE, PARAPPURAM, PERUMBAVOOR.`** - **`3 FARISHA (MINOR), (D/B-01/07/2004), D/O. LATE HAMEED, CHERUVALLIKUDY HOUSE, PARAPPURAM, PERUMBAVOOR.`** ``` 4FARZANA (MINOR), (D/B-27/01/2009), S/O. LATE HAMEED, CHERUVALLIKUDY HOUSE, PARAPPURAM, PERUMBAVOOR. (REPRESENTED BY THEIR MOTHER SMT. NISHA K.M., W/O. HAMEED, CHERUVALLIKUDY HOUSE, PARAPPURAM, PERUMBAVOOR). ``` ``` BY ADV ELSON SIMON ``` M.A.C.A.No.4232 of 2018 ``` 2025:KER:22259 ``` **==> picture [57 x 57] intentionally omitted <==** ``` -2- ``` ## **`RESPONDENT:`** ``` BAJAJ ALLIANCE GENERAL INSURANCE CO. LTD., PEOPLES PARK, 3RD FLOOR, GOVT. ARTS COLLEGE ROAD, COIMBATORE – 641 018. ``` ``` BY ADV SRI.THOMAS M.JACOB ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.4232 of 2018 ``` 2025:KER:22259 ``` ``` -3- ``` **==> picture [57 x 57] intentionally omitted <==** ## **J U D G M E N T** ## (Dated this the 10[th] day of March, 2025) The petitioners in O.P.(M.V.) No.806/2010 on the file of the Motor Accident Claims Tribunal, Perumbavoor 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, children, and mother of the deceased by name Hameed, who died in a motor vehicle accident that occurred on 06.05.2010. According to them, on 06.05.2010, at about 3.30 a.m., while the deceased was loading fish in a mini lorry, a scorpio van driven by the 2[nd] respondent in a rash and negligent manner, hit on the mini lorry and as a result of which he sustained serious injuries and later on he succumbed to the injuries, on the next 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.15,50,000/- limited to Rs.10,00,000/-. 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. M.A.C.A.No.4232 of 2018 ``` 2025:KER:22259 ``` **==> picture [57 x 57] intentionally omitted <==** ``` -4- ``` 5. The evidence in the case consists of documentary evidence Exts.A1 to A5 series. Ext.B1 is marked from the side of the 3[rd] respondent. 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.7,76,000/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioners 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.Elson Simon, the learned Counsel appearing for the petitioners/appellants, and Sri.Thomas M Jacob, 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 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 loading and unloading worker, earning Rs.8,500/- per month, but the Tribunal fixed his monthly income at Rs.4,000/-.The learned counsel for the insurer would argue that the M.A.C.A.No.4232 of 2018 ``` 2025:KER:22259 ``` **==> picture [57 x 57] intentionally omitted <==** ``` -5- ``` income fixed by the tribunal is reasonable. 11. 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 236], the notional income of a coolie, during the year 2010 will come to Rs.7,500/-. Since the petitioners could not prove the job or income of the deceased, as claimed in the OP, in the light of the dictum laid down by the Hon’ble Supreme Court in **Ramachandrappa** (supra), his notional income is liable to be fixed as that of a coolie, at Rs.7,500/-. 12. On the date of accident, the deceased was aged 38 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 15, as held in **Sarla Verma v. Delhi 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.14,17,500/-. 13. The Tribunal has awarded Rs.2,500/- towards loss of estate, Rs.25,000/- towards funeral expenses, Rs.1,00,000/towards loss of consortium and Rs.1,00,000/- towards love and M.A.C.A.No.4232 of 2018 ``` 2025:KER:22259 ``` **==> picture [57 x 57] intentionally omitted <==** ``` -6- ``` 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). 14. 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. 15. 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 in this case on the next day 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/-. 16. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears M.A.C.A.No.4232 of 2018 ``` -7- ``` **==> picture [57 x 57] intentionally omitted <==** ## `2025:KER:22259` to be just and reasonable. 17. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.16,75,900/-, 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<br>Rs.)|Amount Awarded<br>in Appeal (in Rs.)| |---|---|---|---| |1|Transport to hospital|3,000/-|3,000/-| |2|Damage to clothes etc.|500/-|500/-| |3|Funeral expenses|25,000/-|18,150/-| |4|Loss of estate|2,500/-|18,150/-| |5|Pain and sufering|5,000/-|25,000/-| |6|Dependency|5,40,000/-|14,17,500/-| |7|Love and afection|1,00,000/-|Nil| |8|Loss of consortium|1,00,000/-|1,93,600/-| ||**Total**|7,76,000/-|**16,75,900/-**| ||Enhanced Rs.|8,99,900/-|| 18. In the result, this Appeal is allowed in part, and the 3[rd] respondent is directed to deposit a total sum of Rs.16,75,900/- (Rupees Sixteen lakhs seventy five thousand and nine hundred Only), less the amount already deposited, if any, along with interest @ 8% per annum from the date of the petition till realisation/deposit, excluding interest for a period of 1742 days, the period of delay, in filing the appeal, with proportionate costs, within a period of two months from today. 19. On depositing the aforesaid amount, the Tribunal M.A.C.A.No.4232 of 2018 **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:22259 ``` **==> picture [23 x 10] intentionally omitted <==** 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