Oriental Insurance Company Ltd. v Kavitha Babu & Others

``` MACA No.1225 of 2016 & CO No.77 of 2023 ``` ``` 1 ``` ``` 2025:KER:26168 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR WEDNESDAY, THE 19[TH] DAY OF MARCH 2025 / 28TH PHALGUNA, 1946 MACA NO. 1225 OF 2016 ``` ``` AGAINST THE AWARD DATED 30.09.2015 IN OP(MV) NO.64 OF ``` ``` 2011 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL-I, ALAPPUZHA. ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` THE ORIENTAL INSURANCE CO. LTD. KOTTAYAM, REPRESENTED BY ITS REGIONAL MANAGER REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. ``` ``` BY ADVS. SRI. GEORGE CHERIAN (SR.) SMT. LATHA SUSAN CHERIAN SMT. K.S. SANTHI ``` ## **`RESPONDENTS/PETITIONERS:`** - **`1 KAVITHA BABU W/O.T.D.BABU, THAIPARAMBIL, SOUTH ARYAD, AVALOOKUNNU P.O., ALAPPUZHA-688 006.`** - **`2 POOJA BABU D/O.T.D.BABU, THAIPARAMBIL, SOUTH ARYAD, AVALOOKUNNU P.O., ALAPPUZHA-688 006.`** - **`3 K.NALINI (LATE) W/O.DAMODARAN,THAIPARAMBIL, SOUTH ARYAD, AVALOOKUNNU P.O., ALAPPUZHA-688 006.`** - **`4 T.A.DAMODARAN (LATE) THAIPARAMBIL, SOUTH ARYAD, AVALOOKUNNU P.O., ALAPPUZHA-688 006.`** ``` 2 ``` ``` 2025:KER:26168 ``` ``` MACA No.1225 of 2016 & CO No.77 of 2023 ``` - **`5* T. D. MOHANAN`** - **`S/O. LATE T. A. DAMODARAN, THYPARAMBIL HOUSE, KALATH WARD, AVALOOKUNNU P. O., ALAPPUZHA.`** - **`6 T. D. PRASAD`** - **`S/O. LATE T. A. DAMODARAN, THYPARAMBIL HOUSE, KALATH WARD, AVALOOKUNNU P. O., ALAPPUZHA.`** - **`7 T. D. RAJU`** - **`S/O. LATE T. A. DAMODARAN, THYPARAMBIL HOUSE, KALATH WARD, AVALOOKUNNU P. O., ALAPPUZHA.`** - **`8 SOBHANA SABU D/O. LATE T. A. DAMODARAN, PANACHERIL HOUSE, OLASSA P.O., KOTTAYAM.`** - **`[*ADDL.RESPONDENTS 5 TO 8 ARE IMPLEADED VIDE ORDER DATED 19.03.2025 IN I.A.NO. 1 OF 2024 IN MACA NO.1225 OF 2016]`** ``` BY ADV SRI.B.PRAMOD ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2025, ALONG WITH CO.77/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` ``` 2025:KER:26168 ``` ``` MACA No.1225 of 2016 & CO No.77 of 2023 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` WEDNESDAY, THE 19[TH] DAY OF MARCH 2025 / 28TH PHALGUNA, 1946 ``` ``` CO NO. 77 OF 2023 ``` ## **`IN`** ## **`M.A.C.A No.1225 OF 2016`** ## **`CROSS OBJECTORS/PETITIONERS:`** - **`1 KAVITHA BABU, AGED 49 YEARS`** - **`W/O T.D. BABU, THAIPARAMBIL, SOUTH ARYAD, AVALOOKKUNNU P.O., ALAPPUZHA, PIN - 688006`** - **`2 POOJA BABU, D/O T.D. BABU, THAIPARAMBIL, SOUTH ARYAD, AVALOOKKUNNU P.O., ALAPPUZHA, PIN - 688006`** - **`3 K. NALINI, THAIPARAMBIL, SOUTH ARYAD, AVALOOKKUNNU P.O., ALAPPUZHA, PIN - 688006`** - **`4 T.A. DAMODARAN, THAIPARAMBIL, SOUTH ARYAD, AVALOOKKUNNU P.O., ALAPPUZHA, PIN - 688006`** - **`5 T. D. MOHANAN S/O. LATE T. A. DAMODARAN, THYPARAMBIL HOUSE, KALATH WARD, AVALOOKUNNU P. O., ALAPPUZHA.`** - **`6 T. D. PRASAD S/O. LATE T. A. DAMODARAN, THYPARAMBIL HOUSE, KALATH WARD, AVALOOKUNNU P. O., ALAPPUZHA.`** - **`7 T. D. RAJU`** - **`S/O. LATE T. A. DAMODARAN, THYPARAMBIL HOUSE, KALATH WARD, AVALOOKUNNU P. O., ALAPPUZHA.`** ``` 4 ``` ``` 2025:KER:26168 ``` ``` MACA No.1225 of 2016 & CO No.77 of 2023 ``` ``` 8SOBHANA SABU D/O. LATE T. A. DAMODARAN, PANACHERIL HOUSE, OLASSA P.O., KOTTAYAM. ``` ``` BY ADVS. SRI. B.PRAMOD SRI. AYYAPPADAS V SRI. BIJU VIGNESWAR ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` ORIENTAL INSURANCE COMPANY KANJIKUZHY BRANCH, KOTTAYAM., PIN – 686 001. ``` ``` THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 19.03.2025, ALONG WITH MACA.1225/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 5 ``` ``` 2025:KER:26168 ``` ``` MACA No.1225 of 2016 & CO No.77 of 2023 ``` ## **J U D G M E N T** Dated this the 19[th] day of March, 2025 Respondent No.3/ insurer in O.P.(M.V.) No.64 /2011 on the file of the Addl. Motor Accident Claims Tribunal-I, Alappuzha is the appellant in MACA No.1225 of 2016. The original petitioners in the said OP (MV) are the cross objectors in Cross Objection No.77 of 2023. During the pendency of the appeal, the 3[rd] & 4[th] respondents, parents of the deceased died on 02.10.2019 and 08.08.2019 respectively. Therefore, as per order dated 19.03.2025 in I.A.No.1 of 2024 in MACA No.l225 of 2016 the additional respondents 5 to 8, being the legal heirs of the 3[rd] & 4[th] respondents, are impleaded. (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, daughter and parents of the deceased by name T. D. Babu, who died in a motor vehicle accident that occurred on 23.03.2010. According to them, on 22.03.2010, at about 2.18 p.m., while the deceased was travelling in a bus bearing Reg.No.KL-5/X-3355 from Cherthala to Kottayam, driven by the 1[st] ``` 6 ``` ``` MACA No.1225 of 2016 & CO No.77 of 2023 ``` ``` 2025:KER:26168 ``` Respondent in a rash and negligent manner, the bus hit on an electric and telephone posts, lost control and fell into the Meenachil river and thereby he sustained serious injuries and later on he succumbed to the injuries, while under treatment. 3. The 1[st] respondent is the driver, 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 compensation claimed in the O.P. was Rs.63,58,500/-. 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 A16. 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.48,93,851/- and directed the insurer to pay the same. ``` MACA No.1225 of 2016 & CO No.77 of 2023 ``` ``` 7 ``` ``` 2025:KER:26168 ``` 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the Respondent No.3 preferred this appeal and the petitioners filed Cross objection. 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.George Cherian, the learned senior counsel for Smt. Latha Susan Cherian, the learned Standing Counsel appearing for the appellant, and Sri. B. Pramod, the learned Counsel for the petitioners. 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 Senior counsel appearing for the appellant is that the tribunal has not deducted income tax from the salary of the deceased while fixing the notional income for the purpose of assessing loss of dependency. He would also argue that compensation awarded on the conventional heads are on the higher side. On the other hand the learned counsel for the original petitioners relying upon the decision of the Hon’ble Supreme Court in **Vimal Kanwar and others v. Kishore Dan** ``` 8 ``` ``` MACA No.1225 of 2016 & CO No.77 of 2023 ``` ``` 2025:KER:26168 ``` **and others [** 2013 KHC 4370], would argue that in the case of salaried persons, there is a presumption that TDS was effected and as such there was nothing wrong in the procedure adopted by the tribunal. Further he would argue that, if anybody objects to the salary certificate, it is their burden to prove that TDS was not deducted. 11. The deceased was working as Lecturer in a Poly Technic. As per Ext.A10 salary certificate, his total salary shown is Rs.28,424/which includes basic pay was Rs.17,100/-, DA -10,944/- and HRA – Rs.380/-. Therefore, prima facie it appears that Rs.28,424/- is the total salary of the deceased, without making any deduction towards TDS. In the decision in Vimal Kanwar (Supra), the apex court held that in the case of salaried persons, there is a presumption that the employer would deduct the income tax payable by the employee in the light of Section 192 (1) of the Income Tax Act. It is also observed by the apex Court that in case if an objection is raised by any party, the objector is required to prove by producing evidence such as LPC to suggest that the employer failed to deduct the TDS from the salary of the employee. 12. Ext.A10 is a salary certificate prepared in a plain paper which contain only the basic details like basic pay, DA, HRA and the total salary. On a perusal of Ext.A10, I am prima facie satisfied that ``` 9 ``` ``` MACA No.1225 of 2016 & CO No.77 of 2023 ``` ``` 2025:KER:26168 ``` TDS was not deducted from the salary shown in it. The law is well settled that the income that is to be considered for the purpose of assessing loss of dependency means the income less the income tax payable. In the above circumstances, from the above salary of the deceased the income tax payable by him during the relevant period is to be deducted for arriving at the notional income for the purpose of assessing the loss of dependency. Since the total salary as per Ext.A10 salary certificate is Rs.28,424/-,his annual income from salary will come to Rs.3,41,088/-. During the year 2010-11, there was no income tax for the first 1.6 lakh and for the remaining income exceeding Rs.1.6 lakhs and upto 3 Lakhs the income tax payable was 10%. For the income exceeding Rs.3 Lakhs upto 5 lakhs, it was 20%. Therefore, the income tax payable by the deceased for the annual income of Rs.3,41,088/- will come to Rs.22,220/-. Therefore, the annual income less the income tax will come to Rs.3,18,868/-. Hence, his monthly income less the income tax will come to Rs. 26,572/-. 13. On the date of accident, the deceased was aged 43 years. Therefore, 30% 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, ``` 10 ``` ``` MACA No.1225 of 2016 & CO No.77 of 2023 ``` ``` 2025:KER:26168 ``` 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.43,52,494/-. (34543.6 x 12 x 14 x 3/4) 14. Towards conventional heads, the tribunal has awarded Rs.25,000/- towards funeral expense, Rs.1,00,000/- towards loss of consortium and Rs. 1,00,000/- towards love and affection in addition to Rs.10,000/- on the head pain and suffering. 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. The learned counsel for the petitioners would argue that in the appeal filed by the insurer a sum of Rs.1 lakh awarded on the ``` 11 ``` ``` MACA No.1225 of 2016 & CO No.77 of 2023 ``` ``` 2025:KER:26168 ``` head of loss of love and affection is not challenged. However, the learned Senior counsel would argue that 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.10,000/-, 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 reasonable. 18. Therefore, the appellants/Petitioners are entitled to get a total compensation of Rs.46,10,392/- as modified and recalculated above and given in the table below, for easy reference: ``` MACA No.1225 of 2016 & CO No.77 of 2023 ``` ``` 12 ``` ``` 2025:KER:26168 ``` |**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded**<br>**by Tribunal (in**<br>**Rs.)**|**Amount Awarded in**<br>**Appeal (in Rs.)**| |---|---|---|---| |1|Transportation (Ambulance<br>charge)|3,000|3,000| |2|Funeral expenses<br>Extra nourishment<br>Bystanders expense|25,000|18,150| |5|Loss of love and affection<br>Loss of dependency|1,00,000<br>46,55,851|Nil<br>43,52,494| |6|Loss of consortium|1,00,000|1,93,600| |7|Pain and suffering|10,000|25,000| |8|Loss of estate|0|18,150| ||**Total**|**48,93,851/-**|**46,10,394/-**| ||Reduced Rs.2,83,457/-||| 18. In the result, both the Appeal and Cross objection are disposed of, and the appellant, insurer is directed to deposit a total sum of Rs.46,10,394/- (Rupees Forty six lakh ten thousand three hundred and ninety four 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, excluding interest for a period of 2537 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 ``` MACA No.1225 of 2016 & CO No.77 of 2023 ``` **==> picture [12 x 8] intentionally omitted <==** ``` 2025:KER:26168 ``` Tribunal, excluding court fee payable, if any, without delay, as per rules. Sd/- **C. PRATHEEP KUMAR, JUDGE** S.M.K.