Kerala High Court
Badharudheen & Anr vs Deepu K. Mathew & Ors on 24 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
MACA NO. 1503 OF 2011
OP(MV)No.962/2007 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,
OTTAPPALAM
APPELLANTS/PETITIONERS:
1 BADHARUDHEEN, 36 YEARS, S/O.SULAIMAN,
AMBALATH HOUSE, KOOTTALA P.O, HILLPADY, THRISSUR
(FATHER OF DECEASED).
2 SHARIFA @ SHERINA, AGED 30 YEARS,
W/O.BADHARUDHEEN,(MOTHER OF DECEASED). -DO-
BY ADV SRI.SHEJI P.ABRAHAM
RESPONDENTS/RESPONDENTS:
1 DEEPU K. MATHEW, AGED 25 YEARS, S/O.MATHEW VARGHESE,
KAVUMPADY DESOM, MANNARKKADU, PIN 687 772, PALAKKAD.
(DRIVER OF LORRY BEARING REG.NO.TN-23/F-6581) (NO
RELIEF SOUGHT AGAINST R1).
2 K.A.ASHAINMAR,AGE AND FATHER'S NAME NOT
KNOWN NO.141, ASAD NAGAR, KARUMBAKADI, COIMBATORE,
TAMIL NADU, PIN-600 017., (ONWER OF LORRY BEARING
REG.NO.TN-23/F-6581)
3 IFFCO - TOKIO GENERAL INSURANCE CO.LTD.,
NO.28 (OLD NO.195) IST AND 2ND FLOOR, NORTH USMAN ROAD,
T.NAGAR CHENNAI 600 017., POLICY NO. 35665447 VALID
FROM 24.7.2006 TO 23.7.2007.
BY ADVS.
SRI.P.JACOB MATHEW
SRI.MATHEWS JACOB, SR.
SMT.SEENA VASU KODANAD
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 24.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA 1503 of 2011 2
JUDGMENT
The claimants in OP(MV) No.962 of 2007 on the file of the
Motor Accidents Claims Tribunal, Ottapalam, are the appellants
herein, challenging the impugned award on the ground of
inadequacy of compensation.
2. The appellants filed the above OP(MV) under Section 166
of the Motor Vehicles Act, claiming compensation for the death of
their two year old son named Ashique, who was pillion riding in a
motorcycle along with his parents. When they reached Kombazha,
TN-23/F-6581 lorry driven by the 1st respondent, in a rash and
negligent manner, knocked them down and the children of the
appellants/claimants lost their lives in that accident. Though the
appellants approached the Tribunal claiming compensation of
Rs.3,50,000/-, the Tribunal awarded only Rs.1,80,000/- and after
deducting 25% towards contributory negligence, an amount of
Rs.1,50,000/- was awarded to the appellants. Challenging the
inadequacy of the compensation awarded, claimants are before this
Court in this appeal.
3. The 1st respondent was the driver of the offending vehicle,
2nd respondent was its owner and 3rd respondent was its Insurer.
The death of the child Ashique in the accident and the Policy of the
offending vehicle are not in dispute.
4. Respondents 1 and 2 did not contest and they were set ex
parte. The 3rd respondent-Insurer admitted the Policy. But,
according to them, the accident occurred due to the negligence of
the rider of the motorcycle.
5. Before the Tribunal, PW1 was examined and Exts A1 to A19
were marked.
4. Now let us see whether any interference is warranted in
the impugned award as claimed by the appellants.
5. Heard learned counsel Sri.Sheji P. Abraham appearing for
the appellants and learned counsel Sri.P.Jacob Mathew appearing for
the 3rd respondent.
7. The deceased was a two year old boy. Relying on the
decision in Kurvan Ansari v. Shyam Kishore Murmu [(2021)
SCC Online SC 1060], notional annual income of Rs.30,000/- can be
fixed and adopting multiplier of 15, loss of dependency can be
assessed as Rs.4,50,000/-.
8. Towards loss of consortium, the parents are eligible to get
Rs.44,000/- each including 10% hike for the delay of every three
years. So they will get Rs.88,000/- in total.
9. Towards loss of estate and funeral expenses, as per the
decision National Insurance Company Ltd. v. Pranay Sethi and
Others, [(2017) 16 SCC 680], the appellants are eligible to get
Rs.16,500/- each including 10% hike for the delay of every three
years. So they will get Rs.33,000/-.
10. Since the deceased was a child aged only two years,
learned Tribunal went wrong in attributing contributory negligence
of 25% to deduct 25% of the compensation amount and that finding
is liable to be set aside.
11. The appellants are entitled to get a total amount of
Rs.5,71,000/- (4,50,000+88,000+33,000) without any deductions,
on account of alleged contributory negligence. Rs.1,50,000/-
awarded by the Tribunal is liable to be deducted from the award
amount.
Head of claim Amount Amount Difference to be
awarded by awarded in drawn as
the Tribunal appeal enhanced
compensation
Loss of
dependency ..... Rs.4,50,000/- Rs.4,50,000/-
Loss of ...... Rs.88,000/- Rs.88,000/-
consortium
Loss of estate ...... Rs.33,000/- Rs.33,000/-
Total Rs.5,71,000/-
Amount awarded by the Tribunal is Rs.1,50,000/-
Balance eligible as enhanced compensation = Rs.4,21,000/-
(5,71,000-1,50,000)
12. So, the appellants are eligible to get the enhanced
compensation of Rs.4,21,000/- [(4,50,000 + 88000 + 33000) -
1,50,000].
13. The liability of the Insurer to compensate the appellants is
not under challenge. So, the 3rd respondent-Insurer is directed to
deposit the enhanced compensation of Rs.4,21,000/- in the Bank
account of appellants 1 and 2, in equal share, with interest @ 8%
per annum, from the date of petition till the date of deposit
(excluding 122 days of delay in filing the appeal), within two
months from the date of receipt of a copy of this judgment. The
deposit must be in terms of the directives issued by this Court in
Circular No.3 of 2019 dated 06/09/2019 and clarified in
O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the
liabilities, if any, of appellants 1 and 2, towards Tax, balance court
fee and legal benefit fund.
The appeal is allowed accordingly. No order as to costs.
Sd/-
SOPHY THOMAS
JUDGE
DSV/25.03.2023.
