Kerala High Court
Abdul Salam vs Bindu M.K on 27 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
SATURDAY,THE 27TH DAY OF NOVEMBER 2021/6TH AGRAHAYANA, 1943
MACA NO. 853 OF 2014
AGAINST THE AWARD DATED 14.06.2013 IN O.P.(MV) NO.1362 OF
2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM
APPELLANTS:
1 ABDUL SALAM
AGED 59 YEARS, S/O SULAIMAN KUNJU,
MUTHIRAPARAMBIL, THEVALLY P.O, KOLLAM.
2 REPHEEKKA BEEVI,
AGED 55 YEARS, W/O ABDUL SALAM,
MUTHIRAPARAMBIL THEVALLY P.O, KOLLAM.
BY ADVS.
SRI.O.V.MANIPRASAD
SRI.SAJU J PANICKER
RESPONDENTS:
1 BINDU M.K.,
VILAYIL VEEDU, 7/504, NEELAMAL, KARAVALOOR P.O,
PUNALUR, KOLLAM.
2 SHIBULAL,
S/O SASILAL, NIVAS, TIRUMULLAVARAM P.O,
KOLLAM.
3 THE BRANCH MANAGER,
THE NEW INDIA ASSURANCE COMPANY LTD,
BEACH ROAD, KOLLAM.
2
M.A.C.A.No.853 of 2014
4 A. MUHAMAD SHEREEF,
VALIYAVEETTIL HOSUE, AYATHIL P.O, KOLLAM.
R3 BY ADV SRI.N.S.NAJEEB
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR FINAL HEARING ON 27.11.2021, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
3
M.A.C.A.No.853 of 2014
JUDGMENT
Appeal under Section 173 of the Motor Vehicles Act,
1988. The appellants were the petitioners in O.P.(MV)
No.1362 of 2009 on the file of the Motor Accidents Claims
Tribunal, Kollam. The respondents in the appeal were
respondents before the Tribunal.
2. The appellants had filed the claim petition under
Section 166 of the Act, claiming compensation on account of
the death of their son.
3. On 12.05.2019, Sri. Dilshad was travelling in a car
bearing Reg.No.KL-25-3104 along Kollam-Thiruvananthapuram
NH-47. When the car reached Kadampattukonam at about
11 p.m., it hit a motorcycle bearing Reg.No.KL-01-X-8666,
coming in the opposite direction. As a result, the car capsized,
resulting in serious injuries to Dilshad. On the next day, i.e.,
13.05.2019 Dilshad succumbed to the injuries sustained in the
accident. The incident occurred due to the rash and negligent
driving of the car.
M.A.C.A.No.853 of 2014
4. The appellants are the parents of the deceased.
They filed claim petition as O.P.(MV) No.1362 of 2019 before
the Motor Accidents Claims Tribunal, Kollam claiming
compensation of Rs.10 lakhs. The 2 nd respondent was the
driver of the car. The 1st respondent was the registered owner.
But at the time of incident, the ownership stood transferred in
the name of the 4th respondent. The 3rd respondent is the
insurer.
5. The Tribunal examined PW1, the 1st appellant.
Exts.A1 to A11, B1 and B2 were received in evidence. After
considering the evidence on record and hearing both sides,
the Tribunal passed the impugned award ordering payment of
Rs.1,88,000/- as compensation along with interest at the rate
of 9% per annum and costs.
6. Dissatisfied with the quantum of compensation
awarded by the Tribunal, the appellants are in appeal.
7. Heard the learned counsel appearing for the
appellants and the learned counsel appearing for the 3 rd
respondent.
M.A.C.A.No.853 of 2014
8. The policy of the offending car bearing Reg.No.KL-
25-3104 is admitted. There was no dispute regarding the
liability of the 3rd respondent for payment of compensation
claimed in respect of the death of Sri.Dilshad. The learned
counsel for the appellants would submit that reconsideration
and refixation of compensation under the heads 'funeral
expenses', 'loss of consortium' and 'loss of earning' is
required. Compensation for 'pain and suffering' was illegally
denied as well.
9. The learned Tribunal ordered payment of
Rs.5,000/- towards funeral expenses. I am of the view that
the Tribunal ought to have awarded Rs.15,000/-, and
therefore the compensation under the head 'funeral expenses'
is refixed as Rs.15,000/-, an enhancement of Rs. 10,000/-.
10. The Tribunal did not award any compensation for
'loss of consortium and loss of love, affection and care'. Here,
the parents lost their son at the age of 20 years. The Tribunal
has awarded Rs.10,000/- as compensation for 'loss of love,
affection and care'.
M.A.C.A.No.853 of 2014
11. Having heard the learned counsel on both sides, I
am of the view that the appellants 1 and 2 are entitled to get
Rs.40,000/- each as compensation towards 'loss of
consortium and care of parents'. Compensation for loss of
consortium takes in compensation for 'love, affection and
care' and therefore, the compensation of Rs. 10,000/-
awarded under the head 'love, affection and care' will be
deducted from the compensation awarded for loss of
consortium and care of parents.
12. The Tribunal did not award any compensation on
account of pain and suffering. The incident occurred on
12.05.2019. The deceased was taken to the Medical College
Hospital, Thiruvananthapuram. He underwent treatment there
for a day. He died on 13.05.2019. Considering those facts, the
compensation for pain and suffering should have been ordered
by the learned Tribunal. I am of the view that the appellants
are entitled to get an amount of Rs.10,000/- towards
compensation due to the deceased on account of pain and
suffering.
M.A.C.A.No.853 of 2014
13. The notional income of the deceased fixed by the
learned Tribunal is less going by the principles laid down by
the Apex Court in Ramachandrappa v. Manager, Royal
Sundaram Alliance Insurance Company Limited [(2011)
13 SCC 236] and as explained the principles by this Court in
Gopinathan A. and others v. Afzal Basha and another
[2020 (3) KHC 666]. The Tribunal has taken the notional
income as Rs. 4,000/-. It is incorrect. Accident and death was
in 2009. Therefore, the appropriate notional income is
Rs.7,000/-. After deduction personal and living expenses at
the rate of 50% net income is taken as Rs.3,750/-. The
deceased was unmarried and the parents alone are the
claimants. Considering their age and all attending
circumstances, I am of the view that no compensation for
future prospects need be ordered.
14. Multiplier applicable to this case going by the
decision in National Insurance Co. Ltd vs Pranay Sethi
[(2017) 16 SCC 680] is 18, since the deceased was aged 20
years at the time of the accident. Hence, the compensation
M.A.C.A.No.853 of 2014
for loss of earning is refixed as Rs.3,750 x 12 x 18 =
Rs.8,10,000/-. After deducting the compensation of
Rs.1,68,000/- already granted, the enhancement is
Rs.6,42,000/-.
15. In view of what are stated above, over and above
the compensation quantified by the learned Tribunal, an
enhancement of compensation of Rs.7,32,000/- is granted.
16. With respect to other heads of compensation, I find
that the Tribunal has awarded reasonable and just
compensation.
In the result, the appeal is allowed in part, by enhancing
the compensation by an amount of Rs.7,32,000/- (Rupees
seven lakh, thirty two thousand only) with interest at the rate
of 7.5% per annum on the enhanced amount, from the date
of petition till the date of deposit, and a costs of Rs.10,000/-.
The 3rd respondent is ordered to make payment of the
enhanced compensation with interest and costs through the
Tribunal within sixty days from the date of receipt of a
certified copy of the judgment. The Tribunal shall see that the
M.A.C.A.No.853 of 2014
amount of enhanced compensation is duly disbursed to the
appellant in accordance with law.
SD/-
P.G. AJITHKUMAR, JUDGE
dkr
