Kerala High Court

Sajeena S vs Irshad A on 20 November, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
   SATURDAY, THE 20TH DAY OF NOVEMBER 2021 / 29TH KARTHIKA, 1943
                         MACA NO. 620 OF 2014
   AGAINST THE AWARD DATED 26.06.2013 IN OPMV 418/2009 OF MOTOR
               ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL.
APPELLANTS/APPLICANTS:

    1     SAJEENA S.
          W/O. LATE SULAIMAN,
          SHEEJA MANZIL, MANAKKATTU VILAKOM,
          PUNNAKADU,
          CHITTATTUMUKKU P. O.,
          KANIYAPURAM,
          THIRUVANANTHAPURAM.
    2     AYISHA MOL S. S (MINOR),
          D/O. LATE SULAIMAN,
          REPRESENTED BY HER MOTHER,
          THE 1ST APPELLANT,
          SHEEJA MANZIL,
          MANAKKATTU VILAKOM,
          PUNNAKADU,
          CHITTATTUMUKKU P. O.,
          KANIYAPURAM, THIRUVANANTHAPURAM.
    3     ALFIYA MOL S. S. (MINOR),
          D/O. LATE SULAIMAN,
          REPRESENTED BY HER MOTHER,
          THE 1ST APPELLANT,
          SHEEJA MANZIL,
          MANAKKATTU VILAKOM,
          PUNNAKADU, CHITTATTUMUKKU P. O.,
          KANIYAPURAM, THIRUVANANTHAPURAM.
    4     ARIFA BEEVI
          W/O. MUHAMMED ABDUL KHADER,
          SHEEJA MANZIL, MANAKKATTU VILAKOM,
          PUNNAKADU, CHITTATTUMUKKU P. O.,
          KANIYAPURAM, THIRUVANANTHAPURAM.
    5     M. MOHAMMED ABDUL KHADER
          SHEEJA MANZIL,
          MANAKKATTU VILAKOM,
          PUNNAKADU, CHITTATTUMUKKU P. O.,
          KANIYAPURAM, THIRUVANANTHAPURAM.

          BY ADVS.
          SRI. PIRAPPANCODE V.S. SUDHEER
          SRI. SHAJIN S. HAMEED
 M.A.C.A No.620 OF 2014

                                   2



RESPONDENTS/RESPONDENTS:

    1        IRSHAD A.
             S/O. ABDUL AZEEZ,
             AZEEZ MANZIL,
             DYNAMIC HOLLOW BRICKS,
             OPPOSITE POST OFFICE,
             KANIYAPURAM - 695 301.
    2        ANZARI
             S/O. ABDUL AZEEZ,
             CHALIL VEEDU, ANDOOR KONAM,
             KANIYAPURAM - 695 301.
    3        THE MANAGER,
             CHOLAMANDALAM,
             M.S. GENERAL INSURANCE CO. LTD,
             SARAN CHAMBERS,
             VELLAYAMBALAM,
             THIRUVANANTHAPURAM - 695 010.

             BY ADVS.
             SRI. P. JACOB MATHEW
             SRI. MATHEWS JACOB SR.



     THIS    MOTOR   ACCIDENT   CLAIMS   APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 20.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 M.A.C.A No.620 OF 2014

                                    3




                              JUDGMENT

The claimants in O.P. (M.V) No.418 of 2009 of the

Motor Accidents Claims Tribunal, Attingal are the

appellants. The service of notice to the 2 nd respondent is

not complete as the notice has returned with the

endorsement 'left India'. The 2nd respondent is the driver

of the vehicle involved in the accident. Since, the

Insurance Company has admitted that there is a valid

policy of insurance at the time of accident and there is no

contention as regards the violation of conditions of policy,

the service to the 2nd respondent is dispensed with.

2. Aggrieved by the amount of compensation

awarded by the Tribunal the claimants have preferred this

appeal. The parties in this appeal are referred to as per

the status in the claim petition. The petitioners-claimants

are the widow, two children and parents of Sulaiman, M.A.C.A No.620 OF 2014

who died on 25.01.2009 in a motor vehicle accident

which occurred on 21.01.2009. According to the

petitioners-claimants, the deceased Sulaiman was

travelling in a motor cycle bearing Reg.No.KL-22-6865

and the vehicle was hit by a mini lorry with Reg.No.KL-

22-2954 driven by the 2nd respondent and owned by the

1st respondent. The mini lorry was insured with the 3 rd

respondent. In the claim petition, the petitioners-

claimants contended that the accident happened due to

rash and negligent driving of the vehicle by the driver of

the mini lorry. An amount of Rs.17,00,000/- was claimed

as total compensation by the petitioners-claimants.

3. The 3rd respondent insurance company admitted

that the mini lorry was having a valid policy of insurance

as on the date of accident but contended that the

accident occurred due to the negligence of deceased

Sulaiman.

4. The Tribunal found that there is a contributory

negligence on the part of the deceased Sulaiman in M.A.C.A No.620 OF 2014

causing the accident. With regard to the compensation

claimed by the petitioners-claimants the Tribunal awarded

the following compensation and the insurer was directed

to satisfy the award:-

Part I

Sl. Head of claim Amount Amount Basis-vital No claimed awarded details in a nut-shell 1 Loss of earning Nil Nil Accident victim died soon after the accident 2 Partial loss of Nil Nil Accident earnings victim died soon after the accident

3 Transportation to 1,000 3,000 Probable Hospital amount including ambulance charge 4 Extra Nourishment Nil Nil No amount applied for

Others

5 Expenses of funeral 20,000 8000 Probable and to bring in amount relatives to attend funeral and obsequies 6 Damages to 500 500 Probable M.A.C.A No.620 OF 2014

clothing and amount personal articles 7 Costs of medicine 50,000 5,000 Accident-

victim died 4 days after the accident

Part II

8 Compensation for 50,000 10,000 Accident-

pain and sufferings victim died 4 days after the accident 9 Compensation for 1,00,000 30,000 Probable loss of love, (joint amount affection and head) guidance

10 Compensation for 15,00,000 10,80,000 (5000x12 loss of dependency, =60,000-

          future income and                               1/5th
          other benefits and                              (12,000)=
          also loss of future                             48,000x15=
          prospects                                       7,20,000 plus
                                                          50%        of
                                                          7,20,000
                                                          (3,60,000)=
                                                          10,80,000
       11 Compensation for         1,00,000   30000       Probable
          loss of consortium       (joint                 amount
                                   head)
       12 Compensation for         15,00,000 10000        Probable
          loss of estate           (joint                 amount
                                   head)

                     Total                    11,76,500
 M.A.C.A No.620 OF 2014

5. With regard to the income of the deceased the

Tribunal has taken the monthly income as Rs.5,000/- at

the time of accident. According to the petitioners-

claimants, the deceased was employed in gulf country

and was on leave at the time of the accident and had a

job visa to go to Saudi Arabia. The Tribunal found that

the monthly income which the deceased was earning

abroad prior to the accident cannot be taken as the

monthly income he was earning in India and arrived at a

notional income of Rs.5,000/-.

6. After hearing Ms. Megha the learned counsel

for the petitioner and Mr. Mathews Jacob, the learned

Senior Counsel for the Insurance company and following

dictum laid down in Ramachandrappa v. Manager,

Royal Sundaram Alliance Insurance Company

Limited [2011 (13) SCC 236], I find that the monthly

income of the deceased can be taken as Rs.7,000/-.

Therefore, I re-fix the notional/monthly income of the

deceased at the time of accident as Rs.7,000/-. M.A.C.A No.620 OF 2014

7. The deceased was aged 37 years at the time of

the accident and the Tribunal has rightly taken the

multiplier as '15' and 40% for future prospects. However,

in the light of the decision in Sarla Verma v. Delhi

Transport Corporation[2009 (6) SCC 121], deduction

towards the personal and living expenses of the deceased

who was married and having 5 dependent members shall

be 1/4. Therefore, I re-fix the deduction to be made

towards the personal and living expenses of the deceased

as 1/4.

8. In view of re-fixation of monthly income as

Rs.7000/-, the loss of dependency income by adding

40% towards future prospects is recalculated as

[7000+2800=9800]. Accordingly, the amount that can be

awarded under the head 'compensation for loss of

dependency, future income and other benefits and loss of

future prospects' awarded by the Tribunal at Serial No.10

part II of the above schedule is re-fixed as

Rs.13,23,000/-(Rs.9800x12x15-1/4). M.A.C.A No.620 OF 2014

9. Under the head loss of consortium, though the

petitioners-claimants claimed an amount of

Rs.1,00,000/-, only Rs.30,000/- has been awarded.

Following the ratio of the decision in National

Insurance Company Limited v. Pranay Sethi and

others [(2017) 16 SCC 680] the petitioners-claimants

are entitled to Rs.40,000/- each for loss of consortium.

Accordingly, the petitioners-claimants are entitled to an

amount of Rs.2,00,000/- (40,000x5) under the head

loss of consortium. The petitioners-claimants are

awarded an additional amount of Rs.1,70,000/- for loss

of consortium.

10. The Tribunal has granted an amount of

Rs.30,000/- towards compensation for love, affection and

guidance. The Hon'ble Supreme Court has held in United

India Insurance Co.Ltd. v Satinder Kaur [AIR 2020

SC 3076], that when compensation is awarded under the

head loss of consortium, there is no justification in

awarding compensation for loss of love and affection as a M.A.C.A No.620 OF 2014

separate head. Therefore, Rs. 30,000/- awarded under

this head has to be reduced.

11. For compensation under the head funeral

expenses only Rs.8,000/- has been awarded for which

the petitioners-claimants are entitled a further amount of

Rs.7,000/- and I re-fix the amount to be awarded under

the head funeral expenses as Rs.15,000/-.

12. With regard to loss of estate, the petitioners-

claimants are awarded only Rs.10,000/-, whereas, the

petitioners-claimants are entitled to Rs.15,000/- under

the said head. Therefore, the petitioners-claimants are

entitled for an additional amount of Rs.5,000/- under

the head compensation for loss of estate.

13. The Tribunal has awarded an amount of

Rs.10,000/- towards pain and sufferings. The petitioners-

claimants are not entitled for any amount under the said

head in the light of the decision in United India

Insurance Co.Ltd. V Satinder Kaur [AIR 2020 SC

3076]. So the amount of Rs.10,000/- awarded under M.A.C.A No.620 OF 2014

the said head is to be deducted from the total

compensation arrived at. Therefore, the total

compensation is recalculated as shown below;

     Part I

       Sl.      Head of claim        Amount         Amount     Amount
       No                            claimed        awarded by awarded by
                                                    Tribunal   this Court

       1     Loss of earning         Nil            Nil          Nil

       2     Partial loss of         Nil            Nil          Nil
             earning
       3     Transportation to       1,000          3,000        3000
             Hospital
       4     Extra Nourishment Nil                  Nil          Nil
              Others

       5     Expenses of             20,000         8,000        15,000
             funeral and to
             bring in relatives
             to attend funeral
             and obsequies

             clothing and
             personal articles
       7     Costs of medicine       50,000         5,000        5,000
             Total                   80,500         16,500       23,500


              Enhancement in Part I         Rs.7,000/-



              Part II
 M.A.C.A No.620 OF 2014



       8   Compensation for 50,000               10,000       Nil
           pain and sufferings
       9   Compensation for    1,00,000          30,000       Nil
           loss of love,       (joint
           affection and       head)
           guidance
       10 Compensation for 1,50,000              10,80,000    13,23,000/-
          loss of
          dependency,
          future income and
          other benefits and
          also loss of future
          prospects
       11 Compensation for 1,00,000              30,000       200000
          loss of consortium (joint
                             head)
       12 Compensation for     15,00,000         10,000       15,000
          loss of estate       (joint
                               head)

                    Total      19,00,000         11,60,000    15,38,000

Enhancement in Part II Rs.3,78,000/-

In the result, this appeal is allowed in part and the

appellants are awarded an additional compensation of

Rs.3,85,000/- (Rupees Three lakhs Eighty Five

Thousand only). Since the Tribunal has found

contributory negligence on the part of deceased

Sulaiman, the appellants are entitled only to 50% of the M.A.C.A No.620 OF 2014

enhanced compensation. Accordingly, the appellants are

entitled to an amount of Rs.1,92,500/- (Rupees one

lakh ninety two thousand and five hundred only) with

interest at the rate of 9% per annum from the date of

filing of the claim petition till realisation, with