Kerala High Court

Nadeera vs New India Assurance Company Ltd on 6 November, 2024

                                             2024:KER:82481

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

           THE HONOURABLE MR. JUSTICE EASWARAN S.

 WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA,

                             1946

                   MACA NO. 3682 OF 2021

  AGAINST THE AWARD DATED 22.09.2021 IN O.P (MV) NO.94 OF

        2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR

APPELLANTS/PETITIONERS :-

    1    NADEERA, AGED 40 YEARS
         W/O. MUSTHAFA (LATE), THOTTATHIL HOUSE,
         PUTHIRIKKAL, P.O.PARAPPANANGADI ,
         NEDUVA, TIRURANGADI TALUK,
         MALAPPURAM DISTRICT, PIN-676 303

    2    MUHAMMED ASLAM, AGED 16 YEARS
         S/O. MUSTHAFA (LATE), REPRESENTED BY HIS MOTHER
         1ST APPELLANT NADEERA,W/O. MUSTHAFA, THOTTATHIL
         HOUSE, PUTHIRIKKAL, P.O.PARAPPANANGADI ,
         NEDUVA, TIRURANGADI TALUK,
         MALAPPURAM DISTRICT, PIN-676 303

    3    FATHIA FIDHA, AGED 11 YEARS
         S/O. MUSTHAFA (LATE), REPRESENTED BY HIS MOTHER
         1ST APPELLANT NADEERA,W/O. MUSTHAFA, THOTTATHIL
         HOUSE, PUTHIRIKKAL, P.O.PARAPPANANGADI ,
         NEDUVA, TIRURANGADI TALUK,
         MALAPPURAM DISTRICT, PIN-676 303

         BY ADVS.
         K.P.SUDHEER
         J.RAMKUMAR
 MACA NO. 3682 OF 2021

                             2

                                            2024:KER:82481




RESPONDENTS/RESPONDENTS 3 TO 5 :-

    1    NEW INDIA ASSURANCE COMPANY LTD.
         DIVISIONAL OFFICE, THARIFF BAZAR,
         OPP TOWN HALL, TIRUR-676 101,
         REPRESENTED BY ITS DIVISIONAL MANAGER

    2    MUHAMMED FAROOK,
         S/O. MUSTHAFA (LATE), THOTTATHIL HOUSE,
         MAPPOOT ROAD, PAZHANINGAL HOUSE,
         P.O.PARAPPANANGADI, TIRURANGADI TALUK,
         MALAPPURAM DISTRICT, PIN-676 303

    3    MUHAMMED FIROOS,
         S/O. MUSTHAFA (LATE), THOTTATHIL HOUSE,
         MAPPOOT ROAD, PAZHANINGAL HOUSE,
         P.O.PARAPPANANGADI , TIRURANGADI TALUK,
         MALAPPURAM DISTRICT, PIN-676 303
         (NO RELIEF CLAIMED AGAINST 1ST AND 2ND
         RESPONDENTS IN OP (MV) NO.94/2019 HENCE,
         THEY ARE NOT MADE PARTIES IN THIS APPEAL

         BY ADV RAJI T.BHASKAR


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 06.11.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 3682 OF 2021

                                3

                                                    2024:KER:82481




                           JUDGMENT

The appellants are the legal heirs of one Musthafa, who

died in a motor accident on 30.01.2018.

2. The facts in brief are as follows: on 30.01.2018, when

Musthafa was travelling as a pillion rider on the motorcycle

bearing Registration No.KL-65-4109, which was ridden by his

friend one Asharaf, he met with an accident at Iringadanpally

signal junction, due to the rash and negligent driving of the

offending motorcycle bearing Registration No.KL-11-BC-2184. As

a result of the accident, Musthafa was thrown down the road and

sustained severe injuries, and latter succumbed to the injuries on

04.02.2018. The claimants/appellants, who are the wife and

minor children of the deceased Musthafa, approached the Motor

Accidents Claims Tribunal by arraying respondents 4 and 5, who

are the major sons, to claim compensation.

3. The claimants contended that the deceased

Musthafa was a coolie worker and was drawing a monthly

income of ₹24,000/-. However, the tribunal received no evidence MACA NO. 3682 OF 2021

2024:KER:82481

to support this claim. Therefore, the tribunal proceeded to fix the

notional income at ₹10,500/- and proceeded to grant the

compensation.

4. Heard, Smt.Arundhathi Nair - learned counsel

appearing for the appellants and Smt.Raji T Bhaskar - learned

Standing Counsel for the Insurance Company.

5. The learned counsel appearing for the appellants

Smt.Arundhathi Nair contended that the income which was taken

by the tribunal is not in terms of the principles laid down by the

Hon'ble Supreme Court in Ramachandrappa Vs. Manager, Royal

Sundaram Alliance Insurance Company Limited [(2011) 13 SCC

236]. She further contended that the finding of the tribunal that

respondents 4 and 5, who are major children of the deceased are

not dependents. In support of her contention, the learned

counsel for the appellants relied on the judgment of the Hon'ble

Supreme Court in National Insurance Company Limited v.

Birender and others [(2020) 11 SCC 356]. She further contended

that going by the principles laid down by the Hon'ble Supreme

Court in National Insurance Company Limited Vs. Pranay Sethi

[2017 (4) KLT 662 (SC)] and Jayasree N and others v. MACA NO. 3682 OF 2021

2024:KER:82481

Cholamandalam, Ms General Insurance Company Ltd. [2021 (6)

KHC 163 (SC)], the claimants are entitled for future prospects on

the conventional heads like funeral expenses and pain and

suffering.

6. On the other hand, Smt.Raji T Bhaskar, the learned

counsel appearing for the insurance company, submitted that

the income fixed by the tribunal is correct and does not call for

any interference. The learned counsel also submitted that the

major children of the deceased cannot be considered as

dependents in the light of the Division Bench judgment of this

Court in Thresiamma State Express Transport Corporation (TN)

Ltd [2016 (1) KLT 190]. In so far as the claims for future

prospects, pain and suffering and funeral expenses is

considered, she relied on the judgment of the learned Single

Bench of this Court in Nimisha v. Rajath [2024 KHC online 717],

wherein the learned Single Bench of this Court had laid down

certain principles for awarding the head future prospects in

terms of the judgment of the Supreme Court in Pranay sethi

(supra).

7. I have considered the rival submissions raised across MACA NO. 3682 OF 2021

2024:KER:82481

the Bar.

8. Going by the principles laid down by the Supreme

Court in Ramachandrapa (supra), the notinal income of the

deceased ought to have been fixed at ₹11,5000/-, and 10%

future prospects ought to have been added by the tribunal.

Although future prospects have been granted by the tribunal, the

same is on the income of ₹10,500/- fixed by the tribunal, which is

incorrect. Therefore, the claimants/appellants are entitled for the

notional income of the deceased Musthafa fixed at ₹12,650/-

after adding 10% future prospects.

9. No doubt the tribunal declined the compensation for

dependency by taking into consideration the major sons, who are

respondents 4 and 5. However, the question as to whether the

major sons are also dependents or also entitled for claiming

compensation under the head loss of dependency no longer res

integra in the light of the judgment of the Supreme Court in

Birender (supra). Therefore, the appellants are entitled to reckon

respondents 4 and 5 towards the claim for compensation under

the head loss of dependency. Going by the description laid down MACA NO. 3682 OF 2021

2024:KER:82481

by the Supreme Court in Pranay Sethi (supra), if the dependents

are more than 3 in number, only ¼ th of the income is liable to be

deducted towards the personal expenses of the deceased.

Therefore, the finding of the tribunal that respondents 4 and 5

are not dependents certainly calls for interference by this Court.

10. In so far as the claim for future prospects on the

conventional head is concerned, it is true that this Court in

Nimisha (supra) has held that the future prospects is not

applicable to accidents that occurred before 2022. It would be

applicable only in cases where the accidents occur after three

years from the date of judgment in Pranay Sethi (supra).

However, it is pertinent to note that the Hon'ble Supreme Court

in Jayasree (supra) had granted the benefit of 10% of future

prospects on the conventional head by calculating the same

from the date of the judgment. While rendering the judgment in

Nimisha (supra), this Court has not noticed the principles laid

down by the Supreme Court in Jayasree N (supra). It is also

pertinent to mention that the Hon'ble Supreme Court in Saroj v

IFFCO -Tokio General Insurance Company and others in Civil MACA NO. 3682 OF 2021

2024:KER:82481

Appeal [2024 KHC Online 6590] and Rojalini Nayak v. Ajith Sahoo

[2024 KHC Online 8300] has applied the principles laid down by

the Supreme Court in Jayasree N (supra). Therefore, this Court is

of the considered view that the appellants are entitled to have

the future prospects added to the conventional head.

As a result of the above discussion, the appeal stands

allowed and the compensation will grant as follows :-

Sl.

No        Head of Claim     Amount awarded     Modified in appeal      Total
                             by the tribunal                        compensation


1       Loss of                10,16,400           2,35,950            12,52,350
        dependency                                (12,52,350-       (12650x12x11x
                                                  10,16,400)              3/4)

2       Funeral expenses          15,000             1,500             16,500

3       Loss of estate            15,000             1,500             16,500

        TOTAL                  10,46,400           2,38,950           12,85,350



             Accordingly,   the    appellant/claimant      is   awarded   an

additional compensation of ₹2,38,950/- (Rupees two lakhs thirty

eight thousand nine hundred and fifty only) over and above the

compensation awarded by the Tribunal with interest @ 7% per

annum from the date of petition till realization together with MACA NO. 3682 OF 2021

2024:KER:82481

proportionate costs. The Insurance Company is directed to

deposit the aforesaid amount within a period of 30 days from the

date of receipt of a copy of this judgment.