K.M. Abdul Salam vs The H.D.F.C
2021 Latest Caselaw 8290 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

           THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

     FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942

                      MACA.No.558 OF 2015(B)

  AGAINST THE AWARD DATED 20.09.2014 IN OP(MV)No.982/2012 ON THE
       FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM


APPELLANTS/PETITIONERS:

      1      K.M. ABDUL SALAM
             AGED 60 YEARS
             S/O.SAYED MOHAMMED, DARUSSALAM HOUSE, KUMMANAM P O,
             KOTTAYAM

      2      NOORJAHAN
             AGED 52 YEARS
             W/O.K.M.ABDUL SALAM, -DO-

      3      JAVAD K A
             AGED 21 YEARS
             S/O.K M ABDUL SALAM,-DO-

             BY ADVS.
             SRI.V.P.MOHAMMED NIYAZ
             SMT.AUGNES LOVELY FRANCIS
             SRI.M.P.MUHAMMAD FAZIL
             SRI.K.RONALD JOSE

RESPONDENT/3RD RESPONDENT:

             THE H.D.F.C
             ERGO GENERAL INSURANCE COMPANY LTD, KOTTAYAM-
             686001,REP BY ITS MANAGER

             R1 BY ADV. SRI.K.B.RAMANAND

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 M.A.C.A.No.558 of 2015                     2




                                JUDGMENT

Dated this the 12th day of March 2021 ...

The appellants are the claimants in O.P.

(MV)No.982 of 2012 on the file of the Motor

Accidents Claims Tribunal, Kottayam.

2. The claim petition was filed by the

petitioners seeking compensation for the death of

one Fasila who is the daughter of appellants 1 and

2 and sister of the 3rd appellant. The accident

occurred on 8.1.2012. According to the appellants,

the deceased was aged 21 years and she had

successfully completed B.Tech in Computer Science

engineering course from KMCT, College of

Engineering, Kozhikode. It was further contended

that, she had also obtained a job at M/s. Aabasoft

in Infopark, Kochi as a training programmer and she

was also attending some private work. It was

contended that, from the above employments she was

earning Rs.25,000/- per month. It was also

contended that, had she been alive, she would have

been earned Rs.50,000/- per month. On the strength

of the above, they claimed an amount of

Rs.20,66,500/- which is limited to Rs.15 lakhs.

3. The Insurance Company filed a written

statement admitting the coverage of policy but

disputed the liability on various grounds.

4. The evidence in this case consists of

documentary evidence of Exts. A1 to A14 from the

side of the appellants and PW1, who was the

employer of the deceased, was also examined. No

evidence was adduced from the side of the

respondents.

5. After trial, the Tribunal passed an award

of Rs.16,98,000/- and the respondent herein was

directed to deposit the said amount along with

interest at the rate of 8.5% per annum from the

date of petition till its realization.

6. The above appeal is filed by the

petitioners challenging the quantum of compensation

fixed as above.

7. Heard the learned counsel for the

appellants and the learned counsel for the

respondent-Insurance Company.

8. The main contention putforward by the

learned counsel for the appellants is that the

monthly income taken by the Tribunal is only at

Rs.10,000/- which is on lower side. On going by the

materials available it can be seen that, in order

to establish the monthly income, the appellants

have produced Ext.A1 which was marked through PW1,

wherein it is mentioned that, the deceased was

employed in their establishment with a monthly

stipend of Rs.10,000/-. It was also stated therein

that she had a right of increment of Rs.5,000/-

after four months of her training period.

Considering the above facts, particularly the

educational qualification of the deceased and also

the potential capacity of the deceased in getting

higher income in future, this Court is of the view

that the monthly income of Rs.10,000/- fixed by the

Tribunal is liable to be interfered with. This

Court is of the view that in the facts and

circumstances of the case, an amount of Rs.14,000/-

would be ideal to meet the ends of justice.

Accordingly, the monthly income of the deceased is

fixed as Rs.14,000/-. As she is aged 21 years,

while computing the compensation for loss of

dependency, an addition of 40% of the monthly

income has to be added towards future prospects.

Thus, the monthly income for the purpose of

computation of compensation has to be taken as

Rs.19,600/- [Rs.14,000+5600]. Since the deceased

was unmarried, 50% of the monthly income has to be

deducted towards personal expenses. The multiplier

applicable in this case is 18. Considering the

above aspects, the compensation for loss of

dependency has to be re-fixed as Rs.21,16,800/-

[Rs.19600x12x18x50/100]. The compensation awarded

by the Tribunal in this head is Rs.16,20,000/-. If

that be so, the additional amount payable to the

appellants is Rs.4,96,800/-.

9. It is seen that an amount of Rs.30,000/-

has been granted towards loss of love and

affection. The appellants are the parents and the

sister of the deceased. Going by the principles

laid down by the Hon'ble Supreme Court in Magma

General Insurance Co.Ltd v. Nanu Ram and Others

[2018 ACJ 2782], the parents are entitled for

filial consortium at the rate of 40,000/- each.

Therefore, the appellants 1 and 2 are entitled for

an amount of Rs.40,000/- each. It is a settled

position of law that, when compensation for loss of

consortium is awarded, it is not necessary to award

the compensation for loss of love and affection.

Hence, the amount awarded by the Tribunal under the

head of loss of love and affection can be adjusted

against the compensation for loss of consortium.

Thus, additional compensation receivable by the

appellants under the head of consortium shall be

Rs.50,000/- (Rs.80,000-30,000). Under the head of

loss of estate, the amount awarded by the Tribunal

is Rs.10,000/-, whereas, going by the principles

laid down by the Hon'ble Supreme Court in National

Insurance Company Ltd. v. Pranay Sethi [2017(4)KLT

662(SC)] the same should have been Rs.15,000/-.

Thus the appellants are entitled a further amount

of Rs.5,000/- under this head. It is seen that the

Tribunal awarded an amount of Rs.25,000/- under the

head of funeral expenses which is in excess of

Rs.10,000/- going by the principles of Pranay

Sethi's case (supra). Therefore, the excess amount

has to be deducted from the additional compensation

found to be payable in this appeal. Accordingly,

the additional amount of compensation is fixed

as Rs.5,41,800/-[Rs.4,96,800+50,000+5,000-10,000]

[Rupees Five lakhs fortyone thousand and Eight

hundred only]. The respondent-Insurance Company is

directed to deposit the said amount along with

interest and cost as ordered by the Tribunal within

a period of three months from the date of receipt

of a copy of this judgment.

The appeal is allowed to that extent. No order

as to costs.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE pkk