Ayisha vs Sivanandan K.C
2022 Latest Caselaw 8117 Ker

Citation : 2022 Latest Caselaw 8117 Ker
Judgement Date : 1 July, 2022

Kerala High Court

Ayisha vs Sivanandan K.C on 1 July, 2022

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR.JUSTICE BASANT BALAJI
         FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                          MACA NO. 2042 OF 2014
     OPMV 784/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE
APPELLANTS/PETITIONERS:

     1      AYISHA
            AGED 34 YEARS
            W/O. LATE SAKKEER HUSSAIN

     2      AJISHA
            MINOR AGED 17 YEARS
            D.O.B. 24-3-96

     3      SHAHALA
            MINOR AGED 15 YEARS
            D.O.B. 16-10-97

            ALL ARE RESIDING AT KOOTHIL HOUSE,
            EDAKKADDPPURAM P.O., TANUR,
            MALAPPURAM-676302

     4      AYISHABI
            AGED 55 YEARS
            W/O. MOIDEENKOYA,
            ARESIDING AT KALYANATHOPPU PARAMBU,
            KOZHIKODE-673012.

     5      FATHIMA DILNA
            MINOR, D.O.B. 27-4-2013
            D/O.LATE SAKEER HUSIIAN

            MINOR APPEALLNTS/PETITIONERS ARE REPRESENTED BY THEIR
            MOTHER/LEGAL GUARDIAN AYISHA.

            BY ADVS.
            SRI.V.S.CHANDRASEKHARAN
            SRI.M.V.DAS
 MACA NO. 2042 OF 2014
                              2



RESPONDENTS/RESPONDENTS:

    1     SIVANANDAN K.C.
          S/O. MOOTHORAN, AGE NOT KNOWN,
          RESIDING AT KOMATTUCHALIL HOUSE,
          PO, KONOTTU, VIA, KUNNAMANGALAM,
          KOZHIKODE-673571.

    2     NATIONAL INSURANCE COMPANY LTD.
          2ND FLOOR, NOOR COMPLEX, P.B. NO. 811,
          NEAR SBT, ARAYEDATHUPALAM, MAVOOR ROAD,
          KOZHIKODE-673661.

          BY ADV SMT.RAJI T.BHASKAR-R2


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 2042 OF 2014
                                   3



                          JUDGMENT

The wife and minor children along with the mother of the

deceased have filed this appeal challenging the amount of

compensation awarded in the O.P.(M.V) No.784/2013 on the file

of the Principal Motor Accidents Claims Tribunal, Kozhikode. The

claim was filed under Sections 140 and 166 of the Motor

Vehicles Act of the death of one Sakkeer Hussain.

2. On 29.10.2012, at about 10.40.A.M, while the

deceased was riding a motor cycle from Kozhikode to Kakkodi,

he was hit down by a stage carriage bus causing serious injuries.

He was immediately taken to Medical College Hospital,

Kozhikode where he succumbed to the injuries. The accident

happened due to negligence of driving on the side of the 2 nd

respondent who was driving the bus at the relevant time.

3. Respondents 1 to 3 entered appearance and filed a

written statement. According to them, there was no negligence

on the side of the 2nd respondent in causing the accident. MACA NO. 2042 OF 2014

Accident occurred due to the negligence on the part of the

deceased himself. The amount of compensation claimed is

exorbitant. On these grounds the respondents prays for

dismissal of the petition.

4. The Tribunal awarded a total compensation of

Rs.7,25,000/- relying on Exts.A1 to A6. Aggrieved by the said

award the claimants have filed this appeal.

5. The learned counsel for the appellants submits that

the deceased was aged 40 years and the Tribunal has taken the

monthly income as Rs.4,000/-. Going by the decision reported in

Ramachandrappa v. Manager, Royal Sundaram Alliance

Insurance Company Limited [(2011) 13 SCC 236] the

monthly income for an accident which happened in the year

2012 should have been taken as Rs.8,500/-. Moreover, the

deceased was aged 40 years at the time of death. So

considering his age 25% future prospects should also be added

to the income. Thus, the monthly income would come to

Rs.8,500x25% which come to Rs.10,625/- per month. Taking the MACA NO. 2042 OF 2014

monthly income as Rs.10,625/-, the loss of dependency can be

calculated as Rs.10625x12x15x3/4 which comes to

Rs.14,34,375/-. The Tribunal has already awarded amount of

Rs.5,40,000/-. As far as the funeral expense is concerned, the

Tribunal has awarded Rs.25,000/-. Going by the decision

reported in National Insurance Company Ltd. v. Pranay

Sethi [2017 (16) SCC 680], the maximum amount that can be

awarded as funeral expense is Rs.15,000 + 10% escalation

every three year. So the amount awarded by the Tribunal is

more and it is brought down to Rs.16,500/-.

6. As far as loss of estate is concerned, the Tribunal has

awarded only Rs.8,000/- which is increased to Rs.15,000 + 10%

escalation for 3 years which will be Rs.16,500/-.

7. As far as loss of consortium is concerned, the claimants

are wife and three minor children along with the mother of the

deceased. As per the decision in Magma General Insurance

Co.Ltd. v. Nanu Ram Alias Chuhru Ram & Others [(2018) 18

SCC 130] the wife and children as well as the mother are MACA NO. 2042 OF 2014

entitled to Rs.40,000/- each as compensation for loss of

consortium. They are also entitled to 10% increase every three

years as per the decision reported in Pranay Sethi (supra) and

thus, the 10% increase would come to Rs.44,000/- for each

person. So the total compensation for loss of consortium will be

Rs.44,000x5 =Rs.2,20,000/-. The Tribunal has already awarded

a sum of Rs.1 lakh as loss of consortium and on the head loss of

love and affection another Rs.50,000/- was awarded. When loss

of consortium is granted, loss of love and affection cannot be

awarded. Hence, the compensation for loss of affection is set

aside. As far as the loss of consortium is concerned, the Tribunal

has awarded Rs.1,00,000/-. So the appellants are entitled to

Rs.1,20,000/- more.

8. This appeal was filed with the delay of 33 days. At the

time of condoning the delay in C.M.Application No.1/2014 an

order was passed wherein it was stated that if ultimately, the

appeal is allowed and compensation is enhanced, the petitioner

would be dis-entitled for interest for a period of 33 days. Hence, MACA NO. 2042 OF 2014

the enhanced compensation will not carry interest for the above

33 days delay.

In the result, the appeal is allowed. Accordingly, the

following enhancements are made to the award passed by the

Tribunal:

Sl.           Head of Claim      Amt. Awarded Amt. Enhanced
No.                              by Tribunal (Rs.) in appeal (Rs.)
1     Loss of dependency           5,40,000/-       14,34,375
2.    Loss of consortium           1,00,000/-       2,20,000/-
3.    Loss of estate                 8,000/-         16,500/-
      Total                        6,48,000/-      16,70,875/-

Amount enhanced 16,70,875 - 6,48,000 =10,22,875/-

      Less

      Love and affection                                  50,000/-
                                                 (order set aside)

      Funeral Expense                                      8,500/-
                                                 [25,000-16,500]
      TOTAL (Deductions)                                58,500/-

Amount enhanced:10,22,875 - 58,500=9,64,375/-

In the result, the appeal is allowed, the awarding of amount

under the head loss of love and affection is set aside. The MACA NO. 2042 OF 2014

Insurance Company shall pay interest for the amounts awarded by

the Tribunal at the rate directed in the impugned award and for the

enhanced amounts at the rate of 8% from the date of petition. If

any amounts have already been paid, the same shall be granted

set off. The claimants shall produce the details of the Bank account

before the Insurance Company/Tribunal within one month from the

date of receipt of a certified copy of this judgment and amount

shall be transferred to the Bank account directly through

NEFT/RTGS mode, within a period of one month thereafter. If the