P.Aji vs Sabeena Zulfikar
2021 Latest Caselaw 9819 Ker

M.A.C.A.No.1736/2012                 1

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

    WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

                         MACA.No.1736 OF 2012

  AGAINST THE AWARD IN OPMV 1684/2004 DATED 07-03-2011 OF MOTOR
              ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM

APPELLANT/S:

       1        P.AJI,
                SREEPADMAM HOUSE, TC 28/1523, THAKARAPARAMBU,
                SREEKANTESWARAN P.O., THIRUVANANTHAPURAM

       2        SABU NATH,
                R/A.-DO-

       3        SREE LAKSHMI,
                RESIDING AT -DO

       4        OMANA AMMA,
                RESIDING AT -DO

                (THE 2ND 3RD APPELLATNS BEING MINORS ARE
                REPRESENTED BY THE IST APPELLANT WHO IS NONE OTHER
                THAN THEIR MOTHER)

                BY ADV. SRI.R.T.PRADEEP

RESPONDENT/S:

       1        SABEENA ZULFIKAR,
                HAFSA TRADERS, OPP.HAK COMPOUND, CHALAI,
                THIRUVANANTHAPURAM-695 001.

       2        THE MANAGER,
                ORIENTAL INSURACE CO LTD, ROHINI BUILDING,
                THAKARAPARAMBU, THIRUVANANTHAPURAM-695 001.

                R1 BY ADV. SRI.R.VINU RAJ
                R1-2 BY ADV. SRI.A.R.GEORGE
                R1 BY ADV. SHRI.M.V.S.NAMPOOTHIRY

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
     ON 24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
     FOLLOWING:
 M.A.C.A.No.1736/2012                    2




                                 JUDGMENT

Dated this the 24th day of March 2021

This is an appeal filed by the petitioners in O.P.

(MV).No.1684 of 2004 on the file of the Motor Accidents

Claims Tribunal, Thiruvananthapuram. The claim petition

was filed by the petitioners/appellants seeking

compensation for the death of one Hemachandran Nair in a

motor accident occurred on 06.08.2004. The deceased is

the husband of the 1st appellant, father of the 2nd and 3rd

appellants and son of the 4th appellant. According to the

appellants, he was aged 39 and was working as a

registered head load worker at the time of the accident.

Monthly income claimed by them was Rs.10,000/-. The

total amount claimed as compensation was Rs.15,00,000/-.

         2.      The    said    claim   was   contested   by    the   2nd

   respondent          Insurance     Company     by    filing   written

   statement.          Even though the coverage of policy was

admitted in respect of the vehicle, the liability was

disputed on various grounds. Quantum of compensation

was also seriously disputed by them. Evidence in this case

consists of oral evidence of PW1 and Exts.A1 to A7. No

evidence was adduced from the side of the respondent.

3. After the trial, the Tribunal passed an award

allowing Rs.7,26,540/- and the 2nd respondent Insurance

Company was directed to deposit the said amount along

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

of petition. Being aggrieved by the quantum of

compensation as fixed by the Tribunal, this appeal is filed.

4. Heard the learned counsel for the appellant and

the learned counsel for the Insurance Company. One of the

main contentions put forward by the learned counsel for

the appellant is that the amount awarded under the head

of loss of dependency is on lower side. The learned

counsel is attacking the said finding mainly on the ground

that the monthly income fixed by the Tribunal is on lower

side and it is also pointed out that no addition was made

towards future prospectus. While considering the amount

of monthly income fixed by the Tribunal, it can be seen that

said fixation was done on the basis of documents produced

by the appellants themselves. The Tribunal came to the

conclusion that on the basis of Exts.A5 and A6, the

deceased was getting an average wages of Rs.4,937/-,

during the period from 02/2004 to 07/2004. It was based

on this document, the said computation was made. Since

the said finding is based on the records produced by the

appellants, this Court feels that no interference is

warranted but, for the sake of conveniance the figure is

rounded to Rs.5,000/-. It is also a fact that going by the

principles laid down by the Hon'ble Supreme Court in Syed

Sadiq v. Divisional Manager, United India Insurance

Company [(2014) 2 SCC 735] and Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Co.Ltd

[(2011) 13 SCC 236], monthly income of a coolie can be

fixed as Rs.4,500/- in the year 2004. Therefore, in the light

of that principle also, no interference is required under the

head of monthly income.

5. However, the contention of the learned counsel

for the appellant with regard to the non addition of any

amount towards future prospectus is unsustainable. Going

by the principles laid down by the Hon'ble Supreme Court

in National Insurance Company v. Pranay Sethi

[2017(4) KLT 662], 40% of the monthly income can be

added towards future prospectus in respect of persons

coming under the age of 40. Therefore, that addition can

be made. In the above circumstances, compensation under

the head of loss of dependency is re-worked and it is found

that the said amount shall be Rs.9,45,000/- [5000 + 40% of

5000 x 12 x 15 x 3/4]. The Tribunal has already awarded

an amount of Rs.6,66,540/-. After deducting the said

amount, the appellants are found entitled for a further sum

of Rs.2,78,460/-. It is seen that an amount of Rs.15,000/-

alone is granted under the head of loss of consortium.

Similarly amount awarded under the head loss of love and

affection is Rs.15,000/-. Considering the principles laid

down by the Hon'ble Supreme Court in Magma General

Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram

[(2018) 18 SCC 130] and New India Assurance

Company v. Somwati [(2020) 9 SCC 644], the amount

of compensation under the head of loss of consortium to be

fixed as Rs.40,000/-. Similarly, the compensation under the

head of loss of filial consortium can be granted at the rate

of Rs.40,000/- to the parents and same can be granted at

the rate of Rs.40,000/- to the children for parental

consortium. In this case, going through the principles set

out therein by the Hon'ble Supreme Court the appellants

are entitled for a total amount of Rs.1,60,000/- under the

head of loss of consortium. As per the principles laid down

by the Hon'ble Supreme Court in Somwati's case, it is not

necessary to pay compensation separately under the head

of loss of love and affection, when compensation for loss of

consortium is awarded. Therefore, Rs.15,000/- awarded

under the head of loss of love and affection can be

deducted. This is accordingly done. It was further pointed

out that for funeral expenses the amount granted by the

Tribunal is only 5,000/-. In the light of the settled

principles in this regard, a further sum of Rs.10,000/- can

be granted under the said head. In the light of the above

revision, the appellant is entitled for a total sum of

Rs.4,33,460/- (2,78,460 + 1,60,000 + 10,000 - 15,000) and

the 2nd respondent Insurance Company shall deposit the

said amount along with interest and proportionate cost as

ordered by the Tribunal within a period of three months

from the date of receipt of a copy of this judgment. It is to

be noted that while condoning the delay of 422 days, vide

order dated 21.03.2018, it was observed by this Court that,

petitioner shall not be entitled for interest during the

period of delay. In the light of the above, it is observed

that the appellants shall not be entitled for interest for the

period of 422 days.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE DG