Kerala High Court

Joseph vs Abdul Latheef on 31 May, 2022

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
        TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
                          MACA NO. 58 OF 2015
   AGAINST THE AWARD DATED 22.03.2014 IN OPMV 435/2013 OF MOTOR
                 ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE
APPELLANT/PETITIONERS:

    1       JOSEPH, AGED 56 YEARS
            S/O.SCARIYA, KOKKAPPILLIL HOUSE, CHELAVOOR P.O.,
            IMG THAZHAM, KOZHIKODE DISTRICT.

    2       JANCY, AGED 51 YEARS
            W/O.JOSEPH, KOKKAPPILLIL HOUSE, CHELAVOOR P.O.,
            IMG THAZHAM, KOZHIKODE DISTRICT.

    3       PRIYYANKA, AGED 30 YEARS
            D/O.JOSEPH, KOKKAPPILLIL HOUSE, CHELAVOOR P.O.,
            IMG THAZHAM, KOZHIKODE DISTRICT.

            BY ADV SMT.BIMALA BABY


RESPONDENT/RESPONDENTS:

    1       ABDUL LATHEEF, EYYATHYTH HOSUE, MENBATH,
            POST TIRUR, MALAPPURAM.

    2       JINEESH KUMAR V.P. @ KUTTAN
            S/O.SREEDHARAN NAIR V.P., VARIKKOLI,
            POYILIL HOUSE, KIZHAKKUMMURI P.O., KAKKODI, KOZHIKODE.

    3       HDFC ERGO GENERAL INSURANCE COMPANY LIMITED
            NEAR YMCA, YMCA ROAD, KOZHIKODE.

            BY ADVS.
            K.S.SANTHI
            SMT.M.MANJU
            SRI.R.SUDHISH
            LATHA SUSAN CHERIAN
            GEORGE A.CHERIAN(K/611/2014)


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 58 OF 2015            ..2..




                       JUDGMENT

The claimants are the petitioners in O.P.

(MV)No.435/2013 on the files of the Motor Accidents

Claims Tribunal, Kozhikode. The parties are referred to

as per their status in the claim petition.

2. The petitioners have preferred this appeal challenging

the amount of compensation awarded by the Tribunal for

the death of Rose Mary Joseph, in a motor vehicle

accident, which happened on 25.02.2012. According to

the petitioners, while the deceased was travelling in a

bus, the bus hit against an electric post and overturned

causing serious injuries to the deceased. The deceased

succumbed to the injuries sustained. The vehicle was

driven by the 2nd respondent. 1St respondent is the

owner of the vehicle and the 3 rd respondent is the

insurer of the vehicle. The 1st respondent remained ex MACA NO. 58 OF 2015 ..3..

parte and respondents 2 and 3 entered appearance

before the Tribunal. The 3rd respondent insurance

company filed a written statement admitting the policy.

However, it was contended that there was no negligence

on the part of the 2nd respondent in causing the accident.

It was also contended that the amount of compensation

awarded is excessive and exorbitant. The petitioners

filed the original petition under Section 140 and 166 of

the Motor Vehicles Act, 1988, claiming compensation for

the death of the deceased. The Tribunal found that the

accident happened due to the negligence on the part of

the 2nd respondent. The Tribunal awarded an amount of

Rs.9,48,576/- as total compensation along with 8%

interest from the date of petition till realisation with

proportionate cost to the petitioners. The compensation

awarded by the Tribunal under different heads are as

follows:

 MACA NO. 58 OF 2015             ..4..

  Sl.   The compensation claimed Amount       Amount
  No.   under different heads    claimed      allowed

  1     Transport to hospital        5000     1000

  2     Damage to clothing and 10000          1000
        articles

  3     Funeral expenses             50000    10000

  4     Loss of love and affection   100000   25000

  5     Pain and sufferings          100000   5000

  8     Loss of dependency           650000   906576

        Total                                 948576

3. Petitioners 1 and 2 are the parents of the

deceased and the 3rd petitioner is the sister of the

deceased. According to the petitioners, the amount of

compensation awarded by the Tribunal under various

heads are totally inadequate.

4. The learned Counsel for the petitioners contends

that the deceased was a Nursing Tutor in a Nursing

College at Kozhikode and was earning an amount of MACA NO. 58 OF 2015 ..5..

Rs.8,888/- per month at the time of her death. On the

basis of Exts.X1 and X2 produced from the institution

where the deceased was working and after examining

PW1, the Administrator of the Hospital, the Tribunal

fixed the monthly income of the deceased as Rs.8,888/-.

The deceased was aged 26 years at the time of accident.

The Tribunal has awarded an amount of Rs.9,06,576/-

towards loss of dependency. However, the Tribunal did

not add future prospects of increase in income while

calculating the compensation for loss of dependency.

5. As per the decision of the Apex Court in

National Insurance Company Limited v. Pranay

Sethi and others [(2017) 16 SCC 680] 40% can be

added towards future prospects. By adding 40% of the

income towards future prospects, the income of the

deceased would come to Rs.12,443/- [8,888 + 3,555].

The multiplier to be adopted is '17'. There are three

dependents (father, mother and sister). The deceased MACA NO. 58 OF 2015 ..6..

was not married and ½ has to be deducted towards

personal and living expenses. Therefore, the

compensation for loss of dependency is re-worked as

Rs.12,69,206/- [12,443 x 12 x 17 x ½ ]. Since the

Tribunal has already awarded an amount of

Rs.9,06,576/-, the petitioners are entitled for an

enhanced amount of Rs.3,62,630/- [12,69,206 -

9,06,576] under the head loss of dependency.

6. Towards funeral expenses, the Tribunal has

awarded an amount of Rs.10,000/-. In the light of the

decision of the Hon'ble Supreme Court in Pranay Sethi

(supra), the petitioners are entitled to get an amount of

Rs.16,500/- (Rs.15,000 + 10% hike for every three

years). Accordingly, the petitioners are entitled for an

enhanced amount of Rs.6,500/- (16,500 -10,000) under

the said head.

7. No amount is awarded under the head loss of

estate. Going by the decision reported in Pranay Sethi MACA NO. 58 OF 2015 ..7..

(supra), the petitioners are entitled for an amount of

Rs.16,500/- (Rs.15,000 + 10% hike for every three

years). The petitioners are entitled for an enhanced

amount of Rs.16,500/- under the head loss of estate.

8. No amount has been awarded under the head

loss of consortium. Following the ratio in Pranay Sethi

(supra) the petitioners 1 and 2 are entitled to

Rs.44,000/- (Rs.40,000/- + 10% hike for every three

years) each for compensation for loss of consortium.

Accordingly, towards compensation for loss of

consortium, the petitioners (father and mother only) are

entitled for Rs.88,000/- (44,000x2). 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 separate

head. Since the petitioners are entitled for Rs.88,000/-

MACA NO. 58 OF 2015 ..8..

towards loss of consortium, no further amount is to be

awarded under the head loss of love and affection.

Therefore, Rs.25,000/- already awarded under the head

loss of love and affection has to be deducted from the

total compensation.

9. Accordingly, the compensation awarded by the

Tribunal under various heads are re-worked as follows:

  Sl. The compensation Amount          Amount     Differenc
  No. claimed      under allowed       modified   e
      different heads

  1      Transport     to 1,000        --         --
         hospital

  2      Damage        to 1,000        --         --
         clothing     and
         articles

  3      Funeral expenses 10,000       16,500     6,500

  4      Loss of love and 25,000       --         -25,000
         affection

  5.     Loss          of --           88,000     88,000
         consortium

  6      Pain         and 5,000        --         --
         sufferings

  7      Loss          of 9,06,576     12,69,206 3,62,630
 MACA NO. 58 OF 2015                ..9..

           dependency

    8      Loss of estate   --             16,500    16,500

           Total            9,48,576       13,90,206 4,48,630

10. In the result, the petitioners are entitled for an

enhanced compensation of Rs.4,48,630/- (Rupees four

lakhs forty eight thousand six hundred and thirty only). The

2nd respondent insurance company shall deposit the said

amount with 9% interest from the date of filing of the

petition till the date of deposit and proportionate costs

before the Tribunal, within a period of two months from the

date of receipt of a copy of this judgment. While calculating

the interest on the enhanced compensation, the petitioners

will not be entitled for interest for a period of 199 days in

the light of the order dated 19.01.2022 in C.M.Application

No.1/2015 in the above appeal.