National Insurance Company Ltd vs Sulaikha
2023 Latest Caselaw 2926 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
                         MACA NO. 477 OF 2016
 AGAINST THE AWARD DATED 29.10.2015 IN OP(MV) NO.544/2015 OF THE
              MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT:
             NATIONAL INSURANCE COMPANY LTD
             NOOR COMPLEX, NEAR ARAYEDATHUPALAM,
             KOZHIKODE, REPRESENTED BY ITS MANAGER,
             MOTOR THIRD PARTY CLAIMS SECTION,
             REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.

             BY ADV SRI.LAL GEORGE


RESPONDENTS:
     1     SULAIKHA, AGED 45 YEARS, W/O.DECEASED MUHAMMED,
           VAZHAKKATTU HOUSE, KOMERI.P.O., MANKAV,
           KOZHIKODE-673 001.

    2        SHARIA, D/O.DECEASED MUHAMMED, KEEZHEDATH,
             OLAVANNA, KOZHIKODE-673 025.

    3        SEMEER, S/O.DECEASED MUHAMMED, VAZHAKKATTU HOUSE,
             KOMERI.P.O., MANKAV, KOZHIKODE-673 001.

    4        SEEMEENA, D/O.DECEASED MUHAMMED, VALAKKADA THAZHAM,
             VALAYANAD.P.O., MANKAV, KOZHIKODE-673 001.

    5        SHIBIN LAL K, S/O.BABU, 2/282B, KAVUNGAL HOUSE,
             P.O.OLAVANNA, KOZHIKODE-673 025.

    6        BABURAJAN P, S/O.BALAN P, ADIYANA PARAMBIL,
             ODUMBRA.P.O., OLAVANNA, KOZHIKODE-673 025.

             BY ADVS.
             AVM.SALAHUDIN
             A.D.DIVYA


     THIS    MOTOR   ACCIDENT   CLAIMS     APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA 477/16
                                          2



                              JUDGMENT

The National Insurance Company Ltd. - which insured the

offending vehicle involved in a road accident that occurred on

30.09.2014, consequent to which, Muhammed was killed - has

filed this Appeal impugning the compensation awarded by the

Motor Accidents Claims Tribunal, Kozhikode (hereinafter

referred to as 'the Tribunal' for short), in OP(MV)

No.544/2015, filed by the legal heirs of late Muhammed, as

being excessive.

2. Sri.Sebastian Varghese - learned Standing Counsel

appearing for the appellant - Insurance Company, vehemently

argued that the compensation awarded by the Tribunal under

the heads 'Loss of Dependency', 'Funeral Expenses' and 'Loss

of Estate' is excessive; while that awarded under the heads

'Loss of Love and Affection', 'Pain and Suffering' and 'Shock

and Mental Agony' is impermissible. He added that the

compensation under the head 'Loss of Dependency' is excessive

because the notional income of the deceased was reckoned MACA 477/16

incorrectly. He thus prayed that this Appeal be allowed.

3. Sri.AVM Salahudeen - learned counsel appearing for

the claimants/respondents, on the other hand, submitted that

the accident left the family of late Muhammed in disarray and

that therefore, the Tribunal was without error in having

awarded the compensation. He, however, added that, while

computing the notional income of late Muhammed, the Tribunal

erred in not having granted 25% future prospects, since he was

merely 50 years old at the time of the accident. He concluded

his submissions saying that the compensation awarded by the

Tribunal under the head 'Loss of Consortium' is woefully

insufficient because each of the claimants is entitled to

Rs.40,000/- under the said head.

4. I have considered the afore rival contentions on the

touchstone of the evidence on record.

5. On the question of notional income of late

Muhammed, I notice that the learned Tribunal has accepted

Exts.A4 to A6, which are the Registration Certificate, Cash Bill

and Agreement of a Hotel run by the deceased. I cannot find MACA 477/16

the conclusion of the Tribunal - that the deceased was a

restaurateur - to be, in any manner, in error. That said, the

claimants have only asked for Rs.10,000/- as the income of the

deceased and therefore, the Tribunal has certainly acted

without any mistake in accepting the same. This is more so

because, in Ramchandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the

Honourable Supreme Court has declared that even in the case

of a person with unascertainable income in the year 2014 -

when the accident happened - the minimum notional income

to be reckoned is Rs.9,500/-.

6. However, when the income of the deceased was

correctly taken as Rs.10,000/-, the learned Tribunal ought to

have added 10% future prospects to it because it has found that

the deceased was only 50 years old at the time of the accident.

Going by National Insurance Company Ltd. v. Pranay Sethi

[2017 (4) KLT 662], the prospects to be adopted in such case is

10% and to that extent, I cannot find favour with the request

of Sri.AVM Salahudeen to reckon it as 25%. MACA 477/16

7. That being said, the compensation of Rs.1,00,000/-

awarded by the Tribunal under the head 'Loss of Consortium'

is inadequate, because each of the appellants is entitled to

Rs.40,000/- each, as per Pranay Sethi (supra).

8. Coming to the compensation awarded under the

heads 'Funeral Expenses' and 'Loss of Estate', the learned

counsel for the appellant is right in arguing that it should not

have been more than Rs.15,000/-, going by Pranay Sethi

(supra). He is also right in contending that, going by the same

judgment, as also United India Insurance Company Ltd. v.

Satinder Kaur @Satwinder Kaur and Others [2020 (3) KHC 760],

no additional amounts under the heads 'Love and Affection';

'Pain and Suffering' and 'Shock and Mental Agony' could have

been granted.

In the afore circumstances, this Appeal is partly allowed

with the following directions:

a) The compensation under the head 'Loss of

Dependency' is revised to Rs.12,87,000/-, reckoning the

notional income of the deceased to be Rs.10,000/- per month, MACA 477/16

with 10% future prospects added to it and deducting 1/4

towards personal expenses, as required under Pranay Sethi

(supra).

b) The compensation under the heads 'Funeral

Expenses' and 'Loss of Estate' is both reduced to Rs.15,000/-,

from Rs.25,000/-, again as per Pranay Sethi (supra).

c) The compensation under the head 'Loss of

Consortium' is enhanced to Rs.1,60,000/-, from Rs.1,00,000/-,

reckoning Rs.40,000/- each to the appellants.

d) The compensation under the heads 'Love and

Affection'; 'Pain and Suffering' and 'Shock and Mental Agony'

as awarded by the Tribunal are all deleted.

e) In all other heads, the findings of the Tribunal will

remain unaltered.

Consequently, respondents 1 to 4 will be at liberty to

recover the compensation, as enhanced by this Court, from the

Insurance Company, along with interest at the rate awarded by

the Tribunal, from the date of claim until it is recovered. They

will also be entitled to proportionate costs on the enhanced MACA 477/16

amount, as ordered by the Tribunal.

In view of the afore, the amount as fixed above shall be

deposited by the Insurance Company before the learned

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

receipt of a copy of this judgment.

Sd/-

RR                                          DEVAN RAMACHANDRAN
                                                 JUDGE