Shanvy, Biniya and Bibin v. Girish and The New India Assurance Co. Ltd.

``` 2025:KER:25238 ``` **==> picture [57 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` THURSDAY, THE 13[TH] DAY OF MARCH 2025/22ND PHALGUNA, 1946 MACA NO. 3357 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 20.10.2014 IN OPMV NO.954 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA. ``` ## **`APPELLANTS:`** ``` 1SHANVY, W/O. LATE KANAKAMBARAN, PERINGOTTUKARAKARAN HOUSE, PORUNNAMKUNNU DESOM, ALOOR VILLAGE, VELLANCHIRA.P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ``` ``` 2BINIYA, D/O. LATE KANAKAMBARAN, PERINGOTTUKARAKARAN HOUSE, PORUNNAMKUNNU DESOM, ALOOR VILLAGE, VELLANCHIRA.P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ``` ``` 3BIBIN, S/O. LATE KANAKAMBARAN, PERINGOTTUKARAKARAN HOUSE, PORUNNAMKUNNU DESOM, ALOOR VILLAGE, VELLANCHIRA.P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ``` ``` BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` M.A.C.A.No.3357 of 2014 **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:25238` ``` -2- ``` ## **`RESPONDENTS:`** - **`1 GIRISH, S/O. VELAYUDHAN, KOTTARATHIL HOUSE, EDATHIRINJI.P.O., PIN-680 122.`** - **`2 THE NEW INDIA ASSURANCE CO. LTD, ROUND NORTH, THRISSUR—680 001.`** ## **`SRI.V.P.K.PANICKER`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.3357 of 2014 ``` 2025:KER:25238 ``` ``` -3- ``` **==> picture [57 x 58] intentionally omitted <==** ## **J U D G M E N T** Dated this the 13[th] day of March, 2025 The petitioners in O.P.(M.V.) No.954/2009 on the file of the Motor Accident Claims Tribunal, Irinjalakuda 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 Kanakambaran, who died in a motor vehicle accident that occurred on 11.05.2009. According to them, on 11.05.2009, at about 5.30 p.m., while the deceased was riding a motorcycle, another motorcycle bearing reg. number KL-8/AJ-2987 ridden by Respondent No.2 in a rash and negligent manner, hit on his motorcycle and as a result of which he fell down and sustained serious injuries and later on he succumbed to the injuries, on 23.06.2009. 3. The 2[nd] respondent is the driver 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.42,50,000/- limited to Rs.35,00,000/-. 4. The insurance company filed a written statement, M.A.C.A.No.3357 of 2014 ``` 2025:KER:25238 ``` **==> picture [57 x 58] intentionally omitted <==** ``` -4- ``` 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 PW1 and PW2 and 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.18,54,030/- 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.P.V.Baby, the learned Counsel appearing for the petitioners/appellants, and Sri.V.P.K.Panicker, the learned Counsel for the respondents. 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 Supervisor M.A.C.A.No.3357 of 2014 ``` 2025:KER:25238 ``` **==> picture [57 x 58] intentionally omitted <==** ``` -5- ``` (Gangman Section) in Indian Railway, earning Rs.20,000/- per month, but the Tribunal fixed his monthly income at Rs.10,820/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. 11. Relying upon Ext.A11 document and the oral testimony of PW2, the learned counsel would argue that the salary of the deceased during June 2009 will come to Rs.15,330/-. From Exts.A11, it is revealed that his salary from 24.06.2009 to 30.06.2009, that is for a period of 7 days, was Rs.3,577/-. 12. The learned counsel for the 3[rd] respondent would argue that the monthly salary is not clear from Ext.A11. It is true that, in Ext.A11, only the 7 days salary starting from 24.06.2019 to 30.06.2019 is given. However, the said document contains the salary particulars of the deceased for the period from 01.07.2009 to 28.02.2019, till the date of retirement of the deceased. It also contains the signature of the Divisional Personal Officer, Southern Railway, Thiruvanathpuram as well as his official seal. In addition to the same, the Divisional Railway Manager Office Southern Raiway, Chief Staff Welfare Inspector attached to the Divisional Railway of the Southern Railway as PW2 deposed that Ext.A11 contained the salary particulars of the deceased . Therefore, I do not find any grounds to disbelieve Ext.A11. 13. As per Ext.A11, 7 days salary of the deceased M.A.C.A.No.3357 of 2014 **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:25238` ``` -6- ``` during the month June 2009 will come to Rs.3,577/-. If so, his salary for one day will come to Rs.511/-(3577 / 7). Therefore, his monthly salary during June 2009 will come to Rs.15,330/- (3,577 / 7 x 30). In the above circumstances, the tribunal was not justified in limiting his monthly salary to Rs.10,870/-. 14. On the date of accident, the deceased was aged 50 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 13, as held in **Sarla Verma v. Delhi Transport Corporation,** (2009) 6 SCC 121. Since the deceased was married who left behind 3 dependents, towards personal and living expense, 1/3 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.18,33,468/-. 15. The Tribunal has awarded Rs.25,000/- towards loss of estate, Rs.25,000/- towards funeral expenses and Rs.1,00,000/- towards loss of consortium. 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. M.A.C.A.No.3357 of 2014 ``` 2025:KER:25238 ``` **==> picture [57 x 58] intentionally omitted <==** ``` -7- ``` 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.1,45,200/- (48,400 x 3). 16. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.25,000/-, which according to the learned counsel for the petitioners, is on the lower side. The deceased died in this case on 43 days after 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.50,000/- 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 petitioners/appellants are entitled to get a total compensation of Rs.22,80,718/-, 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|2,000/-|2,000/-| |2|Damage to clothing|500/-|500/-| |3|Extra nourishment|500/-|500/-| |4|Medical expenses|2,06,300/-|2,06,300/-| M.A.C.A.No.3357 of 2014 **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:25238` ``` -8- ``` |||`-8-`|`2025:KER:2523`| |---|---|---|---| |5|Bystander’s expenses|6,450/-|6,450/-| |6|Funeral expenses|25,000/-|18,150/-| |7|Pain and sufering|25,000/-|50,000/-| |8|Loss of dependency|14,63,280/-|18,33,468/-| |9|Loss of consortium|1,00,000/-|1,45,200/-| |10|Loss of estate|25,000/-|18,150/-| ||**Total**|18,54,030/-|**22,80,718/-**| ||Enhanced Rs.4,26,688/-||| 19. In the result, this Appeal is allowed in part, and the 3[rd] respondent is directed to deposit a total sum of Rs.22,80,718/- (Rupees twenty two lakhs eighty thousand seven hundred and eighteen Only), less the amount already deposited, if any, along with interest @ 8% per annum from the date of the petition till realisation/deposit, 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** ADS