IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
MACA NO. 2042 OF 2014
OPMV 784/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE
APPELLANTS/PETITIONERS:
1 AYISHA
AGED 34 YEARS
W/O. LATE SAKKEER HUSSAIN
2 AJISHA
MINOR AGED 17 YEARS
D.O.B. 24-3-96
3 SHAHALA
MINOR AGED 15 YEARS
D.O.B. 16-10-97
ALL ARE RESIDING AT KOOTHIL HOUSE,
EDAKKADDPPURAM P.O., TANUR,
MALAPPURAM-676302
4 AYISHABI
AGED 55 YEARS
W/O. MOIDEENKOYA,
ARESIDING AT KALYANATHOPPU PARAMBU,
KOZHIKODE-673012.
5 FATHIMA DILNA
MINOR, D.O.B. 27-4-2013
D/O.LATE SAKEER HUSIIAN
MINOR APPEALLNTS/PETITIONERS ARE REPRESENTED BY THEIR
MOTHER/LEGAL GUARDIAN AYISHA.
BY ADVS.
SRI.V.S.CHANDRASEKHARAN
SRI.M.V.DAS
MACA NO. 2042 OF 2014
2
RESPONDENTS/RESPONDENTS:
1 SIVANANDAN K.C.
S/O. MOOTHORAN, AGE NOT KNOWN,
RESIDING AT KOMATTUCHALIL HOUSE,
PO, KONOTTU, VIA, KUNNAMANGALAM,
KOZHIKODE-673571.
2 NATIONAL INSURANCE COMPANY LTD.
2ND FLOOR, NOOR COMPLEX, P.B. NO. 811,
NEAR SBT, ARAYEDATHUPALAM, MAVOOR ROAD,
KOZHIKODE-673661.
BY ADV SMT.RAJI T.BHASKAR-R2
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO. 2042 OF 2014
3
JUDGMENT
The wife and minor children along with the mother of the deceased have filed this appeal challenging the amount of compensation awarded in the O.P.(M.V) No.784/2013 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The claim was filed under Sections 140 and 166 of the Motor Vehicles Act of the death of one Sakkeer Hussain.
2. On 29.10.2012, at about 10.40.A.M, while the deceased was riding a motor cycle from Kozhikode to Kakkodi, he was hit down by a stage carriage bus causing serious injuries. He was immediately taken to Medical College Hospital, Kozhikode where he succumbed to the injuries. The accident happened due to negligence of driving on the side of the 2 nd respondent who was driving the bus at the relevant time.
3. Respondents 1 to 3 entered appearance and filed a written statement. According to them, there was no negligence on the side of the 2nd respondent in causing the accident. MACA NO. 2042 OF 2014 4 Accident occurred due to the negligence on the part of the deceased himself. The amount of compensation claimed is exorbitant. On these grounds the respondents prays for dismissal of the petition.
4. The Tribunal awarded a total compensation of Rs.7,25,000/- relying on Exts.A1 to A6. Aggrieved by the said award the claimants have filed this appeal.
5. The learned counsel for the appellants submits that the deceased was aged 40 years and the Tribunal has taken the monthly income as Rs.4,000/-. Going by the decision reported in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] the monthly income for an accident which happened in the year 2012 should have been taken as Rs.8,500/-. Moreover, the deceased was aged 40 years at the time of death. So considering his age 25% future prospects should also be added to the income. Thus, the monthly income would come to Rs.8,500x25% which come to Rs.10,625/- per month. Taking the MACA NO. 2042 OF 2014 5 monthly income as Rs.10,625/-, the loss of dependency can be calculated as Rs.10625x12x15x3/4 which comes to Rs.14,34,375/-. The Tribunal has already awarded amount of Rs.5,40,000/-. As far as the funeral expense is concerned, the Tribunal has awarded Rs.25,000/-. Going by the decision reported in National Insurance Company Ltd. v. Pranay Sethi [2017 (16) SCC 680], the maximum amount that can be awarded as funeral expense is Rs.15,000 + 10% escalation every three year. So the amount awarded by the Tribunal is more and it is brought down to Rs.16,500/-.
6. As far as loss of estate is concerned, the Tribunal has awarded only Rs.8,000/- which is increased to Rs.15,000 + 10% escalation for 3 years which will be Rs.16,500/-.
7. As far as loss of consortium is concerned, the claimants are wife and three minor children along with the mother of the deceased. As per the decision in Magma General Insurance Co.Ltd. v. Nanu Ram Alias Chuhru Ram & Others [(2018) 18 SCC 130] the wife and children as well as the mother are MACA NO. 2042 OF 2014 6 entitled to Rs.40,000/- each as compensation for loss of consortium. They are also entitled to 10% increase every three years as per the decision reported in Pranay Sethi (supra) and thus, the 10% increase would come to Rs.44,000/- for each person. So the total compensation for loss of consortium will be Rs.44,000x5 =Rs.2,20,000/-. The Tribunal has already awarded a sum of Rs.1 lakh as loss of consortium and on the head loss of love and affection another Rs.50,000/- was awarded. When loss of consortium is granted, loss of love and affection cannot be awarded. Hence, the compensation for loss of affection is set aside. As far as the loss of consortium is concerned, the Tribunal has awarded Rs.1,00,000/-. So the appellants are entitled to Rs.1,20,000/- more.
8. This appeal was filed with the delay of 33 days. At the time of condoning the delay in C.M.Application No.1/2014 an order was passed wherein it was stated that if ultimately, the appeal is allowed and compensation is enhanced, the petitioner would be dis-entitled for interest for a period of 33 days. Hence, MACA NO. 2042 OF 2014 7 the enhanced compensation will not carry interest for the above 33 days delay.
In the result, the appeal is allowed. Accordingly, the following enhancements are made to the award passed by the Tribunal:
Sl. Head of Claim Amt. Awarded Amt. Enhanced
No. by Tribunal (Rs.) in appeal (Rs.)
1 Loss of dependency 5,40,000/- 14,34,375
2. Loss of consortium 1,00,000/- 2,20,000/-
3. Loss of estate 8,000/- 16,500/-
Total 6,48,000/- 16,70,875/-
Amount enhanced 16,70,875 - 6,48,000 =10,22,875/-
Less
Love and affection 50,000/-
(order set aside)
Funeral Expense 8,500/-
[25,000-16,500]
TOTAL (Deductions) 58,500/-
Amount enhanced:10,22,875 - 58,500=9,64,375/- In the result, the appeal is allowed, the awarding of amount under the head loss of love and affection is set aside. The MACA NO. 2042 OF 2014 8 Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 8% from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court.
sd/-
BASANT BALAJI JUDGE nak