National Insurance Co.Ltd vs Sulaiman
2021 Latest Caselaw 8649 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

        TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942

                          MACA.No.1138 OF 2011(C)

 AGAINST THE AWARD IN OPMV 1552/2009 DATED 11-02-2011 OF MOTOR ACCIDENT
                       CLAIMS TRIBUNAL ,KOZHIKODE

APPELLANT/S:

                NATIONAL INSURANCE CO.LTD
                REPRESENTED BY THE MANAGER, KOCHI REGIONAL, OFFICE,
                M.G.ROAD, ERNAKULAM, COCHIN-35.

                BY ADV. SRI.E.M.JOSEPH

RESPONDENT/S:

       1        SULAIMAN
                APPURATHUPOYIL HOUSE, ENGAPUZHA,, THAMARASSERY, KOZHIKODE
                DISTRICT.

       2        KHADEEJA AGED 38 WO.SULAIMAN
                APPURATHUPOYIL HOUSE, ENIGAPUZHA,, THAMARASSERY, KOZHIKODE
                DISTRICT.

       3        MUHAMMED BASHEER AGED 20
                S/O.SULAIMAN, APPURATHUPOYIL HOUSE, ENIGAPUZHA,,
                THAMARASSERY, KOZHIKODE DISTRICT.

       4        THASLEEMA AGED 14 DO.SULAIMAN
                APPURATHUPOYIL HOUSE, ENIGAPUZHA,, THAMARASSERY, KOZHIKODE
                DISTRICT., REPRESENTED BY THE 1ST RESPONDENT SULAIMAN.

       5        THAHASUBA AGED 13 DO.SULAIMAN
                APPURATHUPOYIL HOUSE, ENIGAPUZHA,, THAMARASSERY, KOZHIKODE
                DISTRICT., REPRESENTED BY THE R1 SULAIMAN.

       6        ABDUL RAZAK 3001356 PEKKANDI-12
                KODUVALLY, KOZHIKODE.

       7        NASSAR KUPPODAN KUNHAMU
                KALAKUNNUMMAL HOUSE P.O., ADRIVARAM,, KOZHIKODE DISTRICT.

                R1 BY ADV. SRI.K.MUHAMMED SALAHUDHEEN

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-
03-2021, THE COURT ON 16-03-2021 DELIVERED THE FOLLOWING:
 MACA.No.1138 OF 2011(C)                        2


                              P.V.KUNHIKRISHNAN, J
                      -----------------------------------------------
                             M.A.C.A. No.1138 of 2011
                           --------------------------------------
                     Dated this the 16th day of March, 2021


                                     JUDGMENT

This appeal is filed by the 3 rd respondent in O.P.(M.V.)

No.1552/2009 on the file of the Motor Accidents Claims Tribunal,

Kozhikode. It is a claim petition filed by the respondent Nos. 1 to 5

herein under Sec.166 of the Motor Vehicles Act. (Hereinafter, the

parties are mentioned in accordance to their rank before the

Tribunal).

2. The short facts are like this :

The petitioners are the legal heirs of the deceased Thahir, who

died due to a motor vehicle accident, which took place on 3.4.2008 at

about 7.45 p.m. Deceased Thahir was walking through the

Thamarassery-Adivaram public road and when he reached near the

Adivaram Mujahid Palli, a motor cycle without exhibiting registration

number driven by the 2nd respondent in a rash and negligent manner,

hit him and as a result of that, he was thrown away and he sustained

fatal injuries. Subsequently, he succumbed to the injuries on the next

day of the accident. The 1st respondent was the owner and the 3rd

respondent was the insurer of the offending motor cycle. The

claimants claimed an amount of Rs.4,00,000/- as compensation.

3. To substantiate the case, Exts.A1 to A5 were marked. After

going through the documents and pleadings, the Tribunal awarded an

amount of Rs.4,09,000/- with interest at the rate of 7% per annum

from the date of application till realization. Aggrieved by the quantum

of compensation, this appeal is filed by the 3 rd respondent-Insurance

Company.

4. Heard counsel for the appellant and counsel for the

respondent.

5. The counsel for the appellant submitted that the deceased

was aged only 18 and the Tribunal while fixing compensation for loss

of dependency, deducted only 1/3 rd instead of 50%. The counsel

submitted that in the light of the judgment in Sarla Verma & Others

v. Delhi Transport Corporation & another [2010 (2) KLT 802], the

Tribunal ought to have deducted 50% for the personal expense of the

deceased. It may be correct. But in the light of the decision in

Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru

Ram & Others. [(2018) 18 SCC 130], the claimants are entitled more

amount towards consortium. The Tribunal granted only Rs.10,000/-

under that head. Moreover, towards funeral expenses, only Rs.5,000/-

is granted instead of Rs.15,000/-. Similarly, for loss of estate, only

Rs.5,000/- is granted. In such circumstances, I don't want to interfere

with the quantum of compensation awarded by the Tribunal in the

peculiar facts and circumstances. Therefore, I see no reason to

interfere with the impugned award.

Therefore, this appeal is dismissed.

sd/-

P.V.KUNHIKRISHNAN JUDGE SKS