Samad vs Rajalekshmi
2021 Latest Caselaw 21757 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
             THE HONOURABLE MR. JUSTICE T.R.RAVI
 TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
                    MACA NO. 2432 OF 2013
   AGAINST THE AWARD DATED 20.12.2012 IN OPMV 294/2012 OF
   PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE,


APPELLANTS/PETITIONERS:

    1     SAMAD, AGED 43 YEARS,
          S/O. KHADER (LATE), 426,
          ROOBINBA NIVAS, PO BEYPORE,
          KOSHIKODE.
    2     SAUDA, AGED 35 YEARS,
          W/O. SAMAD, RESIDING AT 1377,
          PALAPPARAMBIL 33, KOZHIKODE.
    3     FARHAN @ ABDUL FARHAN (MINOR)
          AGED 9 YEARS
          DATE OF BIRTH 28-1-2002
    4     ABDUL FARSAN A.T. @ FARSAN (MINOR)
          AGED 4 YEARS
          DATE OF BIRTH 19-10-2006

          (MINORS ARE REPRESENTED BY THIER FATHER SAMAD,
          BOTH ARE RESIDING AT 1377, PALAPPARAMBIL, 33,
          KOZHIKODE.
          BY ADVS.
          SRI.V.S.CHANDRASEKHARAN
          SMT.LEKSHMI SWAMINATHAN
          SRI.M.V.DAS



RESPONDENTS/RESPONDENTS:

    1     RAJALEKSHMI
          W/O. MOHANDAS, AGED NOT KNOWN,
          RESIDING AT SALEENAM HOUSE,
          PO, PANANGOTTUR, TANUR,
          MALAPPURAM-676302,
 M.A.C.A. No. 2432 of 2013
                                 2




     2       PRASHOB.K.P.
             AGED 31 YEARS, S/O. PRABHAKARAN,
             RESIDING AT DEVAKI NIVAS,
             KARIYATHANKUZHUYIL.P.O.,
             KOODARANJI, KOZHIKODE-673001.
     3       BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD.
             5TH FLOOR, M SONS ARCADE,
             CHEROOTTY ROAD,
             KOZHIKODE-673001.
             BY ADV SRI.AKHIL K.MADHAV, FOR R3



      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 30.09.2021, THE COURT ON 02.11.2021 DELIVERED THE
FOLLOWING:
 M.A.C.A. No. 2432 of 2013
                                    3




                              T.R. RAVI, J.
               --------------------------------------------
                       M.A.C.A. No. 2432 of 2013
                --------------------------------------------
               Dated this the 2nd day of November, 2021

                              JUDGMENT

The appellants are the parents and siblings of one Shabana,

who died in a motor accident. The deceased was aged 15 years

and was a student. The accident occurred on 14.03.2011. While

the deceased was walking along the road, she was hit by a car and

she was admitted in the Medical College Hospital, Kozhikode,

where she succumbed to the injuries after two days. The

appellants preferred a claim petition before the Tribunal. The

Tribunal awarded a sum of ₹3,55,000/- with interest at the rate of

7% per annum. Aggrieved by the award, the appellants have

preferred this appeal seeking enhancement of the compensation

awarded.

2. Heard Sri V.S. Chandrasekaran, learned counsel for the

appellants and Sri.Akhil K.Madhav for the 3rd respondent.

3. It is seen from the award that the Tribunal has granted

₹5,000/- towards funeral expenses which ought to have been

₹15,000/-. So also, the Tribunal has granted ₹10,000/- towards

loss of estate which ought to have been ₹15,000/-. The Tribunal M.A.C.A. No. 2432 of 2013

has awarded a sum of ₹15,000/- towards pain and sufferings,

which will not be justified in the light of the judgment in United

India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur

& Ors. reported in [2020 (3) KHC 760]. Thus, an additional

amount of Rs.10,000/- is granted towards funeral expenses and a

further amount of Rs.5,000/- is granted towards loss of estate,

which will get adjusted to the deduction of ₹15,000/- from pain and

suffering. A sum of ₹25,000/- has been awarded towards loss of

love and affection. But no amount is seen granted towards loss of

filial consortium. The appellants are entitled to a sum of

₹1,60,000/- towards loss of consortium. After deducting the

amount of ₹25,000/- granted under the head loss of love and

affection, an additional sum of ₹1,35,000/- will be payable under

the above head. The Tribunal has arrived that the compensation

for loss of dependency on the basis of a monthly income of

₹15,000/- taking into account the fact that the deceased was a

very brilliant student having a very good future. A sum of

₹75,000/- was also granted towards future prospects. The

Tribunal has awarded ₹1,50,000/- towards loss of dependency,

₹75,000/- as non-pecuniary compensation to the parents and

₹75,000/- towards future prospects, totalling to ₹3,00,000/-. The M.A.C.A. No. 2432 of 2013

learned counsel for the appellants submitted that in National

Insurance Company v. Assainar (2019 (4) KT 39), this Court

had formulated a method for calculating compensation payable in

the case of children below the age of 15. Going by schedule 2 in

paragraph 18 of the judgment the notional annual income to be

fixed in an accident which occurred in 2010-11 will be ₹61,000/-.

Going by the method of assessment shown in paragraph 19 of the

judgment, the amount arrived at as per the 2 nd schedule is to be

multiplied by a multiplier of 15 and no amount is to be added

towards future prospects. It is also held that one-third of the

notional income has to be deducted towards personal expenses,

while computing compensation. Applying the multiplier of '15' and

deducting one-third towards personal expenses, the compensation

payable under the head loss of dependency will come to

₹6,10,000/- (₹61,000 x 15 x 2/3). After deducting the amount of

₹3,00,000/- granted by the Tribunal under the heads loss of

dependency, non-pecuniary compensation and compensation for

future prospects, the appellants will be entitled to an additional

compensation of ₹3,10,000/-.

4. In the result, the appeal is allowed and the appellants

are awarded an enhanced compensation of ₹4,45,000/-. M.A.C.A. No. 2432 of 2013

(Rupees Four Lakhs Forty Five Thousand only) with interest

at the rate of 9% per annum from the date of filing of the claim

petition till the date of realisation, with proportionate costs. The

appeal was filed with a delay of 102 days. By order dated

24.03.2021 in C.M.Appl. No.3015/2013 the delay was condoned

on condition that the appellants will not be entitled to interest on

the enhanced compensation which may be awarded by this Court

for the period of 102 days. The interest payable on the enhanced

compensation shall be hence excluding the period of 102 days.

The 3rd respondent insurer shall deposit the additional

compensation granted in this appeal along with the interest and

proportionate costs, before the Tribunal within two months from

the date of receipt of a certified copy of this judgment, after

deducting any amount to which the appellants are liable towards

balance court fee and legal benefit fund. The disbursement of the

compensation to the appellants shall be in accordance with law.

Sd/-

T.R. RAVI JUDGE

Pn