Kerala High Court

Ussain vs Abdul Nazar on 1 July, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
         THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
                         MACA NO. 1280 OF 2009
 AGAINST THE ORDER/JUDGMENT IN OP(MV)NO.440/2004 OF PRINCIPAL MOTOR
                   ACCIDENT CLAIMS TRIBUNAL,KOZHIKODE
APPELLANTS/PETITIONERS IN THE OP(MV):

     1       USSAIN, S/O.ABU, AGED 49 YEARS,
             RESIDING AT PULLORAKAVIL HOUSE,P.O.PADANILAM,, KOZHIKODE
             DISTRICT.

     2       AYISHA, W/O. USSAIN, AGED 43 YEARS,
             RESIDING AT PULLORAKAVIL HOUSE, P.O.PADANILAM,, KOZHIKODE
             DIST.

             BY ADV SMT.LATHA PRABHAKARAN



RESPONDENTS/RESPONDENTS IN THE OP(MV):

     1       ABDUL NAZAR, S/O.MARIYA, AGE NOT KNOWN,
             RESIDING AT EDATHANATHKAVU.P.O., ALANALLOOR, MANNARKKAD.

     2       BIJU JAMES, S/O. CHACKO AGED 43 YEARS,
             RESIDING AT PLANKATTU HOUSE, KODENCHERY AMSOM DESOM,
             P.O., KODENCHERY, KOZHIKODE.

     3       THE UNITED INDIA INSURANCE CO. LTD.
             BRANCH OFFICE, MANARKKAD.

             BY ADV SRI.A.A.MOHAMMED NAZIR



THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 1280 OF 2009          2




                        JUDGMENT

The appellants were the petitioners in OP(MV) No.440

of 2004 on the file of the Principal Motor Accidents Claims

Tribunal, Kozhikode. The respondents in the appeal by the

respondents before the Tribunal.

2. The appellants had filed a claim petition u/s.166

of the Motor Vehicles, 1988 claiming compensation on

account of the death of their son Shijan (deceased), who

27.10.2003 while riding as a pillion rider on a motor cycle

bearing Reg.No.KL-10/H-8871, travelling from Padanilam

to Kodanchery, when the vehicle reached a place named

Collegepadi, a jeep bearing Reg.No.KLU-4668 (offending

vehicle) coming from the opposite direction hit the motor

cycle. The deceased lost his life on the spot. The driver of

the motor cycle also sustained serious injuries. The

offending vehicle was driven by the 2 nd respondent, owned

by the 1st respondent and insured with the 3rd respondent.

The appellant had claimed that the deceased was a painter

by profession and earning a monthly income of Rs.5,000/-.

The appellants contended that the respondents 1 to 3 were

jointly and severally liable to pay compensation to them,

which they quantified at Rs.4,76,000/-, but limited to

Rs.4,00,000/-.

3. The respondents 1 and 2 did not contest the

proceedings. However, the 2nd respondent had filed a

written statement, inter alia, contending that the accident

occurred solely due to the negligence on the part of the

deceased.

4. The 3rd respondent filed a written statement

admitting that the offending vehicle had a valid insurance

policy, but denied the assertion in the claim petition.

6. The Tribunal consolidated and jointly tried the

claim petition filed by the appellants along with the claim

petition - OP(MV) No.402 of 2004 - filed by the rider of the

motor cycle. The appellants produced and marked Exts.A1

to A4 in evidence.

7. The Tribunal, after analysing the pleadings and

materials on record, by a common award allowed the claim

petition in part, by permitting the appellants to realise an

amount of Rs.1,70,000/- with interest @ 7% per annum

from the date of filing of the claim petition till the date of

deposit along with costs.

8. Dissatisfied with the quantum of compensation

awarded by the Tribunal, the petitioners are in appeal.

9. Heard, the learned counsel appearing for the

appellants/petitioners and the learned counsel appearing

for the 2nd respondent/ Insurance Company.

10. The question that emanates for consideration in

this appeal is whether the quantum of compensation

awarded by the Tribunal is reasonable and just.

11. 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 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.

12. Ext.A1 Final Report filed by the police

substantiates that the accident occurred solely on account

of the negligence of the 2nd respondent, who drew the

offending vehicle in a rash and negligent manner.

Admittedly, the 1st respondent is the owner and the 3rd

respondent is the insurer of the vehicle. Therefore, it is

the 3rd respondent, who is liable to indemnify the 1 st

respondent of his liability to pay the compensation.

13. Ext.A4 legal heir ship certificate proves that the

appellants are the legal heirs of the deceased. Ext.A2

wound certificate and Ext.A3 postmortem certificate

substantiates that the deceased passed away on

27.10.2003 due to the accident. Although, the appellants

had claimed that the deceased was 20 years of age, it was

found, as per Ext.A3 postmortem certificate, for want of

other materials, that the deceased was 17 years of age.

Even though the appellants had claimed that the deceased

was a painter by profession and earning a monthly income

of Rs.5,000/-, they did not substantiate their assertion.

Therefore, the Tribunal fixed the notional income of the

deceased at Rs. 15,000/- per annum, i.e Rs.1,250/- per

month.

Notional Income

14. The Hon'ble Supreme Court in Ramachandrappa

vs. Manager, Royal Sundaram Alliance Insurance

Company Ltd., (2011 (13) SCC 236) has fixed the notional

income of a Coolie Worker in the year 2004 at Rs.4,500/-

per month. It is held that the notional income had to be

enhanced by Rs.5,00/- every year.

15. Following the parameters laid down by the

Hon'ble Supreme Court in the aforecited decision, I am of

the firm opinion that as the accident occurred in the year

2003 and the deceased was a painter by profession, his

notional income can safely be fixed at Rs.4,000/- per

month. Hence, I refix the notional income of the deceased

at Rs.4000/- per month.

Future prospects

16. In Sarala Verma v. Delhi Transport

Corporation (2009) 6 SCC 121) and host of subsequent

decisions, the Hon'ble Supreme Court has categorically

held that the dependents of the deceased are entitled for

future prospects 40% of the total compensation to be

awarded under the head 'loss of dependency'.

17. In the case on hand, as the deceased was a self

employed, the appellants are entitled for future prospects

at 40%.

Personal living expenses

18. Again in Sarala Verma and Pranay Sethi

(supra) it is held that ½ of the compensation under the

head 'loss due dependency' has to be deducted towards

personal living expenses of the deceased in the case of

bachelors.

Multiplier

19. Going by the law laid down in Sarala Verma and

Pranay Sethi (supra), as the deceased found to be 17

years of age, the relevant multiplier is '18'.

Compensation for loss due to dependency

20. Following the above parameters, i.e fixing he

notional income of the deceased at Rs.4,000/-, future

prospects at 40%, the relevant multiplier as 18, and after

deducting one half of the amount towards personal living

expenses, I fix the compensation under the head loss due

to dependency along with future prospects at Rs.6,04,800/-

instead of 1,50,000/- fixed by the Tribunal.

Conventional heads of compensation

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

Court in Clause (viii) of paragraph 61 has held that the

dependents of the deceased are entitled for compensation

under the conventional heads namely; funeral expenses,

loss of estate, loss of consortium at Rs. 15,000/-, 15,000/-

and 40,000/- respectively. Hence, I refix compensation

under the head 'loss of estate' at Rs.15,000/-, 'funeral

expenses' at Rs.15,000/- and 'loss of consortium' at

Rs.80,000/-.

Love and affection and Pain and Sufferings

22. The Hon'ble Supreme Court in United India

Insurance Company Ltd. v. Sachindar Kaur @

Satindar Kaur and others (2020 (3) KHC 760) has

held that the dependents of the deceased are not entitled

for compensation under the head 'pain and sufferings'.

Therefore, I set aside the amount of Rs.7,000/- awarded by

the Tribunal under the said head.

23. This Court in Kunjandy and others v.

Rajendran (2020(2) KLT 315) has held that once

compensation is awarded under the head 'loss of

consortium', no compensation can be awarded under the

head 'loss of love and affection', as it would be a

duplication of compensation. In view of the said law, I set

aside the amount of compensation granted under the two

heads.

24. With respect to the compensation awarded under

the head transportation, I find that the Tribunal has

awarded reasonable and just compensation.

25. On an over all re-appreciation of the pleadings

and materials on record, the law laid down in the aforesaid

decisions, I am of the firm opinion that the

appellants/petitioners are entitled for enhancement of

compensation as modified and recalculated above and

given in the table below for easy reference.

Head of claim           Amount          Amounts
                        Awarded by      modified and
                        the Tribunal    recalculated
                        (in Rs.)        by this Court

Transportation          1,000/-         1,000/-
expenses

Funeral expenses        2,000/-         15,000/-

Loss of estate          -               15,000/-

Love and affection      10,000/-        -

Pain and suffering      7,000/-         -

Loss of consortium -                    80,000/-

Loss of dependency 1,50,000/-           6,04,800/-
with         future
prospects

Total                   1,70,000/-      7,15,800/-

24. The appellants had claimed total compensation of

Rs.4,76,000/- which was limited to 4,00,000/-. Following

the law laid down in the authorative precedents of the

Hon'ble Supreme Court, I have refixed the compensation,

which is now Rs.7,15,800/-, which is much above the

compensation claimed by the appellants in the claim

petition.

27. In Nagappa v. Gurudwara Singh (2003) 1

KLT 115) and in Rajesh v. Rajbir Singh (2013) 3 KLT

89 SC) the Hon'ble Supreme Court has held that the court

can award compensation in excess of what is claimed in

the claim petition because the compensation to be