Kerala High Court

Shamsudheen vs The Divisional Manager on 8 April, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                THE HONOURABLE MR.JUSTICE C.S.DIAS

    THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                          MACA.No.1015 OF 2012

  AGAINST THE AWARD IN OP(MV)NO. 1508/2005OF II ADDITIONAL MOTOR
       ACCIDENT CLAIMS TRIBUNAL ,KOLLAM DATED 14-06-2010


APPELLANTS/PETITIONERS:

      1      SHAMSUDHEEN
             F/O.LATE SOFIYA, MAHINMANZHIL
             AKKOLILCHERRY
             MAYYANAD P.O KOLLAM

      2      ABIDA BEEVI
             W/O.SHAMSUDHEEN
             MAHINMANZHIL
             AKKOLICHERRY
             MAYYANAD P.O KOLLAM

      3      MOHAMMED UKKASH(MINOR) AGED 10 YEARS,
             (REPRESENTED BY 1ST PETITIONER AS A GUARDIAN)

             BY ADVS.
             SRI.PRATHEESH.P
             SMT.CHITHRA S.BABU

RESPONDENT/3RD RESPONDENT:

             THE DIVISIONAL MANAGER
             M/S.NATIONAL INSURANCE CO.LTD
             DAMODAR CHAMBERS STATUE JUNCTION
             THRIPPUNITHURA 682301

             R1 BY ADV. SRI.P.JACOB MATHEW
             R1 BY ADV. SRI.MATHEWS JACOB SR.

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
08.04.2021, ALONG WITH MACA.538/2012, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 MACA.Nos. 538 & 1015 OF 2012
                                  2




            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR.JUSTICE C.S.DIAS

   THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                      MACA.No.538 OF 2012

AGAINST THE AWARD IN OP(MV)NO. 1508/2005 OF II ADDITIONAL MOTOR
      ACCIDENT CLAIMS TRIBUNAL ,KOLLAM DATED 14-06-2010


APPELLANT/3RD RESPONDENT:

             NATIONAL INSURANCE COMPANY LTD
             TRIPUNITHURA
             NOW REPRESENTED BY ITS MANAGER,
             KOCHI REGIONAL OFFICE,
             OMANA BUILDING,
             M.G.ROAD, KOCHI-35.

             BY ADV. SRI.P.JACOB MATHEW

RESPONDENTS/PETITIONERS:

      1      SHAMSUDHEEN
             MAHIN MANZHIL, AKKOLICHERRY,
             MAYYANADU P.O., KOLLAM DISTRICT, PIN-691320.

      2      ABITHA BEEVI WO.SHAMSUDHEEN
             MAHIN MANZHIL, AKKOLICHERRY,
             MAYYANADU P.O., KOLLAM DISTRICT, PIN-691320.

      3      MUHAMMED UKKASH (MINOR)
             REPRESENTED BY HIS GUARDIAN IST RESPONDENT
             SHAMSUDHEEN, MAHIN MANZHIL,
             AKKOLICHERRY, MAYYANADU P.O.,
             KOLLAM DISTRICT, PIN-691320.

             R1 BY ADVS. SMT.CHITHRA.S.BABU
             SRI.PRATHEESH.P

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 08.04.2021, ALONG WITH MACA.1015/2012, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 MACA.Nos. 538 & 1015 OF 2012
                                    3




                           C.S.DIAS,J
                 ------------------------

MACA Nos.538 & 1015 of 2012

------------------------

Dated this the 8th day of April, 2021

COMMON JUDGMENT

As these appeals arise out of the award in

OP(MV)No.1508 of 2005 on the file of the II Additional

Motor Accident Claims Tribunal, Kollam, between the

same parties, the appeals are being disposed of by this

common judgment. The parties are, for the sake of

convenience and wherever their contest are required,

referred to as per their status in the original petition.

2. The facts in brief, relevant for the

determination of the appeal, are: on 13.12.2004 while

Smt.Sofia (deceased), the daughter of the petitioners 1

and 2 and the mother of the 3rd petitioner was travelling

as a pillion rider on motorcycle bearing registration No.

KL 07/N 611, a Bus bearing registration No. KL 07/D

3337 (offending vehicle) driven by the 2 nd respondent in MACA.Nos. 538 & 1015 OF 2012

a rash and negligent manner and at highspeed, hit the

motorcycle on which the deceased was travelling. The

deceased sustained serious injuries and was rushed to

the General Hospital, Ernakulam, but, unfortunately, she

succumbed to the injuries on the way to the hospital.

The City Traffic Police, Ernakulam registered a case

against the 2nd respondent for the offences punishable

under Sections 279, 338 and 304A of the Indian Penal

Code. The offending vehicle was owned by the 1 st

respondent and insured with the 3rd respondent. The

deceased was working as a sales girl and earning a

monthly income of Rs.3,000/-. The petitioners were the

dependants of the deceased. Therefore, the petitioners

are entitled for compensation from the respondents 1 to

3, who are jointly and severally liable to pay the

compensation, which they quantified at Rs. 4,00,000/-.

3. The respondents 1 and 2 did not contest the

proceedings and were set ex-parte.

4. The 3rd respondent filed a written statement MACA.Nos. 538 & 1015 OF 2012

denying the allegations in the claim petition. The 3 rd

respondent conceded that the offending vehicle had a

valid insurance policy. However, they contended that the

accident occurred due to the negligence on the part of

the deceased herself.

5. The first petitioner was examined as PW1 and

Exhibits A1 to A4 were marked through him in evidence.

The respondents did not let in any contra evidence.

6. The Tribunal, after considering the pleadings

and materials on record, by the impugned award

allowed the claim petition, in part, by permitting the

petitioners to recover an amount of Rs.3,02,000/- with

interest at the rate of 7.5% per annum from the date of

petition till the date of realisation and proportionate

costs from the respondents. The 3rd respondent was

directed to pay the compensation amount with interest

and costs within one month, failing which the 3 rd

respondent would have to pay interest at the rate of 9%

per annum.

MACA.Nos. 538 & 1015 OF 2012

7. Dissatisfied with the quantum of compensation

the petitioners have filed MACA No.1015 of 2012 and

aggrieved by the impugned award the 3 rd respondent -

insurance company has preferred MACA No. 536 of

2012.

8. Heard the learned counsel appearing for the

appellants/petitioners and the learned counsel

appearing for the respondent - insurance company.

         9.    The     question         that    emanates      for

    consideration     in   this       appeal   is   whether   the

compensation awarded by the Tribunal is justifiable

or not?

10. A Constitution Bench of the Hon'ble Supreme

Court in National Insurance Company Ltd. v. Pranay

Sethi [(2017) 16 SCC 680], has held that Section 168 of

the Motor Vehicles Act, 1988, deals with the concept of

'just compensation' and the same has to be determined

on the foundation of fairness, reasonableness and MACA.Nos. 538 & 1015 OF 2012

equitability on acceptable legal standards. The

conception of 'just compensation' has to be viewed

through the prism of fairness, reasonableness and non-

violation of the principle of equitability.

11. Ext.A4 final report filed by the police clearly

specifies the accident occurred solely due to negligence

on the part of the 2nd respondent, who drew the vehicle

in a rash and negligent manner.

12. Undisputedly, the 1st respondent is the owner

of the offending vehicle and the 3 rd respondent is the

insurer of the offending vehicle. Therefore, the 3 rd

respondent is liable to indemnify the 1 st respondent for

any compensation that is payable.

13. The specific case of the petitioners was that

the deceased was a sales girl and drawing a monthly

income of Rs.3,200/-. The Tribunal fixed the notional

income of at Rs.3,000/-. I find that the income fixed by

the Tribunal to be reasonable, considering the fact that

the accident occurred in the year 2004. MACA.Nos. 538 & 1015 OF 2012

Loss of dependency with future prospects

13. The Hon'ble Supreme Court in Sarala Varma

v. Delhi Transport Corporation [2010 (2) KLT 802

(SC)] and in Pranay Sethi (supra) has gone on to hold

that the dependants of the deceased are entitled to

compensation under the head 'loss of dependency along

with future prospects'.

14. In the instant case that the deceased was only

25 years of age. Therefore, the relevant multiplier is

'18'. Hence, the petitioners are entitled to future

prospects at the rate of 40% under the head 'loss of

dependency' as held in the afore-cited decisions. In such

circumstances, compensation under the head 'loss of

dependency with future prospects' is re-fixed at

Rs.6,04,800/- instead of Rs.2,72,000/- awarded by the

Tribunal.

Conventional Heads

15. In Pranay Sethi (supra), the Hon'ble Supreme

Court has held that, the dependants of the deceased are MACA.Nos. 538 & 1015 OF 2012

entitled for compensation under conventional heads

namely 'funeral expenses, loss of estate and loss of

consortium' at the rates of Rs.15,000/-, Rs.15,000/- and

Rs,40,000/- respectively. Following the above law, I hold

that the petitioners are entitled for 'funeral expenses' at

the rate of Rs.15,000/- instead of Rs.2,500/- awarded by

the Tribunal, loss compensation under the head 'loss of

estate' at the rate Rs.15,000/- instead of Rs.5,000/-

awarded by the Tribunal and filial consortium and

parental consortium at Rs.40,000/- each to the

petitioners, totalling to an amount of Rs.1,20,000/-.

Pain and suffering

16. The Tribunal had awarded an amount of

Rs.5,000/- under the head 'pain and sufferings'. In view

of the law laid down in United India Insurance

Company Ltd. v Satinder Kaur @ Satwinder Kaur

and others [2020 (3) KHC 760], the petitioners are not

entitled for any amount under the said head of claim.

Therefore, I set aside the amount awarded by the MACA.Nos. 538 & 1015 OF 2012

Tribunal under the said head.

Love and affection

17. It is seen that the Tribunal had awarded an

amount of Rs.15,000/- under the head 'love and

affection'. In view of the law laid down by this Court in

Kunjandy v. Rajendran [2020(2) KLT 315], and

compensation being awarded under the head 'loss of

consortium', no compensation can be awarded under

the head 'loss of love and affection'. Therefore, I set

aside compensation awarded under the said head of

claim.

Other heads of claim

18. With respect to the other heads of claim

namely, 'transport' and 'clothing', I find that the

Tribunal has awarded reasonable and just

compensation.

19. On an overall re-appreciation of the pleadings

and materials on record and the law laid down by the

Hon'ble Supreme Court and this Court in the afore-cited MACA.Nos. 538 & 1015 OF 2012

decisions, I am of the firm opinion that the

petitioners/appellants in MACA No.1015 of 2012 are

entitled for enhancement of compensation as modified

and recalculated above and given in the table below for

easy reference.

     Sl.   Heads of claim             Amount awarded by         Amounts
     No                                the Tribunal (in      modified and
                                           rupees)          recalculated by
                                                               this Court
     1     Transport                         2,000/-              2,000/-
     2     Clothing                            500                 500/-
     3     Funeral expenses                  2,500/-             15,000/-
     4     Pain and sufferings               5,000/-                nil
     5     Love and affection               15,000/-                nil
     6     Loss of estate                    5,000/-             15,000/-
     7     Loss of consortium                  nil               1,20,000/-
     8     Loss of dependency with          2,72,000/-           6,04,800/-
           future prospects
                                            3,02,000             7,57,300

In the result, the appeals are disposed of by

enhancing the compensation by a further amount of

Rs.4,55,300/- with interest at the rate of 7% per annum

both on the original compensation as well as the

enhanced compensation, after deducting 640 days i.e.

the delay in filing the appeal as ordered by this Court on MACA.Nos. 538 & 1015 OF 2012

13.06.2012 in C.M.Appl. No.1250 of 2012, and

proportionate costs. The respondent - insurance

company in MACA No.1015 of 2015 shall deposit the

enhanced compensation awarded in this appeal before

the Tribunal along with interest and proportionate costs

as ordered above within a period of two months from