Aysha vs Jomy Joseph
2021 Latest Caselaw 23542 Ker

M.A.C.A.No.3024/2018                   1




              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
         THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
  SATURDAY, THE 27TH DAY OF NOVEMBER 2021 / 6TH AGRAHAYANA,
                                1943
                       MACA NO. 3024 OF 2018
           AGAINST THE ORDER/JUDGMENT IN OPMV 48/2016 OF
         ADDITIONAL .DISTRICT COURT & MOTOR ACCIDENT CLAIMS
                        TRIBUNAL ,THODUPUZHA
APPELLANT/PETITIONERS:

     1       AYSHA,
             AGED 42 YEARS,
             W/O.LATE KABEER,
             PATHICKATHOTTIYIL HOUSE, PLANTATION JUNCTION,
             VANNAPPURAM KARA,
             VANNAPPURAM VILLAGE, THODUPUZHA WARD NO.14H 69,
             PIN-685 607.
     2       MIDHILAJ,
             AGED 18 YEARS,
             S/O.LATE KABEER,
             PATHICKATHOTTIYIL HOUSE, PLANTATION JUNCTION,
             VANNAPPURAM KARA,
             VANNAPPURAM VILLAGE, THODUPUZHA, WARD NO.14H 69
             PIN-685 607.
     3       AMMENA SHERIN,
             AGED 14 YEARS.
             D/O.LATE KABEER, MINOR REP.BY MOTHER AND NEXT
             FRIEND AYSHA, W/O. KABEER,
             PATHICKATHOTTIYIL HOUSE,
             PLANTATION JUNCTION ,VANNAPPURAM KARA,
             VANNAPPURAM VILLAGE, THODUPUZHA, WARD NO.14H 69
             PIN-685 607.
             T.ASAFALI
             LALIZA.T.Y.
 M.A.C.A.No.3024/2018              2




RESPONDENT/RESPONDENTS:

     1      JOMY JOSEPH,
            S/O.JOSEPH PERINGATTU HOUSE, VAZHAKALA BHAGOM, WEST
            KODIKULAM KARA, KODIKULAM VILLAGE, PIN-685 582.
            (DRIVER OF KL-06-B/9793 SCHOOL BUS)

     2      THE PRINCIPAL,
            VIMAL JYOTHI PUBLIC SCHOOL, NJARAKKAD,
            KADAVOOR P.O., KADAVOOR VILLAGE, PIN-686 671.
            (OWNER OF KL-060B/9793 SCHOOL BUS).

     3      THE ORIENTAL INSURANCE CO.LTD.,
            REP.BY ITS BRANCH MANAGER, DIVISIONAL OFFICER,
            JYOTHI SUPER BAZAR, THODUPUZHA -685 584.

            BY ADVS.
            SRI.DOMSON J.VATTAKUZHY
            SRI.A.R.GEORGE


      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 27.11.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 M.A.C.A.No.3024/2018                3




                           JUDGMENT

The appellant is the petitioner in O.P.(M.V).No.48 of 2016 on

the file of the Additional Motor Accidents Claims Tribunal-I,

Thodupuzha. The claim petition was filed seeking compensation

for the death of one Kabeer, who is the husband of the 1 st

appellant and father of the 2 nd and 3rd appellants. The said Kabeer

was aged 48 years and was a Senior Civil Police Officer. He died

due to the injuries sustained to him in a motor accident occurred

on 01.10.2015. The accident occurred when the motor cycle

ridden by the deceased was hit by a bus driven by the 1 st

respondent, owned by the 2 nd respondent and insured with the 3 rd

respondent. As compensation, an amount of Rs.1,00,00,000/- was

claimed.

2. The 1st and 2nd respondents filed separate written

statements, disputing the negligence on the part of the driver of

the bus. It was also pointed out that, even if it is found that they

are liable to pay the compensation, the same has to be realized

from the 3rd respondent as the vehicle was having a valid

insurance policy at the time of the accident. The 3 rd respondent

insurance company filed written statement disputing the

negligence and also the quantum of compensation. However, the

coverage of policy in respect of the vehicle was admitted.

3. In support of the contentions put forward in the claim

petition, the appellants have produced Exts.A1 to A7. From the

side of the respondents, Ext.B1 copy of the driving licence of the

1st respondent was produced. After the trial, the Tribunal found

that the accident occurred due to the negligence on the part of

the 1st respondent and being the insurer of the said vehicle, the 3 rd

respondent was found liable to pay the compensation. The

quantum of compensation was fixed as Rs.45,72,290/-. Being

aggrieved by the quantum of compensation, this appeal is filed.

4. Heard Sri.T.Asaf Ali, learned counsel for the appellants

and Sri.A.R.George, learned counsel for the 3 rd respondent

insurance company.

5. The specific case of the learned counsel for the

appellants is that the addition made towards future prospects,

while computing the compensation for loss of dependency was

inadequate. It was pointed out that the deceased being a Senior

Civil Police Officer in service, who was having a remaining service

of 8 years, would have got enhancement in salary and other

service benefits at higher rates than the additions made by the

Tribunal in this regard. In such circumstances, he seeks for

enhancement of the same. However, the addition to be made

towards future prospects was specifically considered by the

Honourable Supreme Court in various judgments and after

examining all the relevant aspects concerning the issue, it was

settled as per the judgment in National Insurance Company

Ltd v. Pranay Sethi (2017 (5) KHC 350). In the said

judgment a uniform procedure has been contemplated by the

Honourable Supreme Court, with regard to the percentage of

income to be taken as addition towards future prospects of

the deceased. It was specifically observed therein that in the

case of regular salaried persons coming within the age group

of 40-50, the addition to be made towards future prospects is

30%. In this case, the Tribunal has made the addition of

30%. As the Honourable Supreme Court has specified a

uniform percentage towards the addition to be made for

future prospects in clear terms, after elaborately discussing

all relevant aspects of the same, I do not think that no

deviation is possible with respect to the same. In such

circumstances, I do not find any merits in the submission of

the learned counsel for the appellant in this regard. The

compensation granted under other heads are also in tune

with the settled principles.

5. The learned counsel for the insurance company

points out that the Tribunal has awarded an amount of

Rs.1,00,000/- towards loss of love and affection. According to

the learned counsel, the same should not have been granted,

in the light of the judgment in United India Insurance Co

Ltd V. Satinder Kaur @ Satwinder Kaur and other [2020

(3) KHC 760]. However, even if that contention is accepted,

the 2nd and 3rd appellants would have been entitled for

compensation for loss of parental consortium, which is not

granted by the Tribunal In such circumstances, no

interference is warranted in that head also.

Accordingly, when considering all the facts and

circumstances of the case, I do not find any reason to

interfere with the amounts awarded by the Tribunal and

accordingly, appeal is dismissed.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE DG/29.11.21