Kerala High Court
Nirmala Devi Ammal vs Naseer V.M on 25 September, 2024
2024:KER:73908
MACA No.1345/2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 4TH DAY OF OCTOBER 2024 / 12TH ASWINA, 1946
MACA NO. 1345 OF 2017
OPMV NO.24 OF 2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE
APPELLANTS/PETITIONERS:
1 NIRMALA DEVI AMMAL, AGED 54 YEARS
W/O. (LATE) KUTTAPPAN, AGED 54 YEARS
2 DEEPAK, S/O. LATE KUTTAPPAN, AGED 24 YEARS,
3 DHEERAJ, S/O. (LATE) KUTTAPPAN AGED 21 YEARS
ALL ARE RESIDING AT THUSHARAM, 28/3572 B, P.O
KUTHIRAVATTAM,NEAR POTTAMMAL WATER TANK, KACHILATTU,
KOZHIKODE 673 016
BY ADV SRI.AVM.SALAHUDIN
RESPONDENTS/RESPONDENTS:
1 NASEER V.M.
S/O. ABOOBACKER, RESIDING AT VADAKKE MARADATH,CHERUVATTA
P.O, PARAMBIL, KOZHIKODE 673 012
2 YASIR ABDURAHMAN
RESIDING AT KOZHIKULANGARA HOUSE,P.O PARAMBIL, KOZHIKODE 673
012
3 THE NEW INDIA ASSURANCE COMPANY LIMITED
D O SILVER PLAZA BUILDING, I G ROAD, KOZHIKODE 673 004
BY SRI.MOHAMMED USMAN, SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON
04.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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MACA No.1345/2017
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JUDGMENT
This appeal has been filed by the claimants in OP(MV) No.24 of
2016 on the file of the Principal Motor Accidents Claims Tribunal,
Kozhikode. The respondents herein were the respondents before the
tribunal.
2. The case of the appellants/claimants is that on 12.09.2015,
while the deceased was riding a scooter bearing Reg.No.KL-11-D-9427
from Malaparamba to Kozhikode, a bus bearing Reg.No.KL-11-S-4682
driven by the second respondent, in a rash and negligent manner, hit
against the scooter ridden by him, whereby he sustained serious injuries
and succumbed to the injuries. The claimants, being the legal heirs of
the deceased, approached the tribunal claiming a total compensation of
₹60,00,000/-.
3. Respondents 1 and 2 entered appearance before the tribunal.
The respondent insurer filed a written statement, admitting the policy
coverage for the offending vehicle, but disputing the liability and
quantum of compensation claimed. Before the tribunal, Exts.A1 to A10
were marked on the side of the appellants/claimants and Ext.B1 was
marked on the side of the respondent insurer. The tribunal, after
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analysing the pleadings and materials on record, held that the accident
took place on account of the negligence of the driver of the offending
vehicle and awarded a sum of ₹15,32,000/- as compensation under
different heads against the third respondent being the insurer.
Dissatisfied with the quantum of compensation awarded by the tribunal,
the claimants have come up in appeal.
4. I have heard the learned counsel for the appellants and the
learned Standing Counsel for the respondent insurer.
5. The learned counsel for the appellants claims enhancement
under the following heads:
5.1. Notional income - The learned counsel for the appellant
submits that though the appellants produced Exts.A7, A8 and A9
documents to prove that the deceased was working as Assistant
Librarian in the University of Calicut and was drawing a monthly salary
of ₹73,800/- per month at the time of the accident, the tribunal, without
stating any reason, notionally fixed the monthly income at ₹10,000/-. It
is the argument of the learned counsel for the appellants that since the
deceased was drawing a monthly salary of ₹73,800/-, the tribunal ought
to have taken that amount as the monthly income of the deceased for
assessing compensation. Per contra, the learned Standing Counsel
appearing for the respondent insurer submits that though the last
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drawn salary of the deceased was ₹73,800/-, the income tax payable has
to be deducted from that amount. I find force in the submission of the
learned Standing Counsel for the respondent insurer. Thus, for
assessing compensation, the income tax amount has to be deducted
from the annual income of ₹8,85,600/-. It has to be noted that upto
₹2,50,000/-, there is no deduction of income tax. Hence, after deducting
an amount of ₹2,50,000/- from the annual income of ₹8,85,600/-, the
taxable income will be ₹6,35,600/-. Upto 10 lakh, 20% is the income tax
payable and accordingly, an amount of ₹1,27,120/- (635600 x 20%) will
be arrived at as the income tax amount payable. Thus, after deducting
the income tax amount of ₹1,27,120/- from ₹8,85,600/-, the annual
income for assessing compensation will be ₹7,58,480/- (885600-127120).
Accordingly, for assessing compensation, I refix the notional monthly
income of the deceased at ₹63,206/- (758480/12).
5.2. Loss of dependency - Since the deceased was a
permanent employee of the University of Calicut and was aged 54 years
at the time of the accident, 15% of the refixed notional income ought to
have been added towards future prospects, totalling to an amount of
₹72,686.9 [63206 + (63206 x 15%)], which can be rounded to ₹72,690/-
for computing compensation towards loss of dependency. There are
three legal heirs and hence, 1/3rd of the income has to be deducted
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towards personal expenses and since the deceased was aged 54 years at
the time of accident, the multiplier to be adopted will be '11'. Thus,
following the judgments in National Insurance Co.Ltd. v. Pranay Sethi
[2017(4) KLT 662(SC)] and Sarla Verma v. Delhi Transport Corporation
[2010(2) KLT 802(SC)], the appellants will be entitled to get a total
compensation of ₹31,98,360/- (72690 x 12 x 11 x 1/3) towards loss of
dependency. Hence, there will be an additional amount of ₹19,11,360/-
under the head of loss of dependency.
5.3. Loss of consortium/loss of love & affection - On a
perusal of the award, it is seen that the tribunal awarded only an
amount of ₹1,00,000/- towards loss of consortium. Since there are three
legal heirs, the appellants are entitled to get an amount of ₹1,20,000/-
towards loss of consortium. However, the tribunal awarded an amount
of ₹75,000/- towards loss of love & affection, which is impermissible and
runs against the mandate in Pranay Sethi (supra). Therefore, after
adjusting an amount of ₹20,000/- towards loss of consortium from the
compensation awarded by the tribunal towards loss of love and
affection, there will be a deduction of ₹55,000/-.
5.4. Loss of estate - It is seen that the tribunal has awarded
an amount of ₹25,000/- towards loss of estate. However, going by the
judgment in Pranay Sethi (supra), the maximum compensation ought to
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have been granted by the tribunal towards loss of estate is ₹15,000/-.
Thus, there will be a deduction of ₹10,000/-.
5.5. Funeral expenses - On a perusal of the award, it is seen
that the tribunal awarded an amount of ₹25,000/- towards funeral
expenses. However, going by the judgment in Pranay Sethi (supra), the
maximum amount of funeral expenses ought to have been granted by
the tribunal is ₹15,000/-. Thus, there will be a deduction of ₹10,000/-.
6. Though the appellants claimed enhancement of compensation
under other heads, on a perusal of the records available, I am not
inclined to interfere with the compensation awarded by the tribunal
under other heads since it appears to be just and reasonable. Thus, the
impugned award of the tribunal is modified as follows:
Sl.
No. Head of Claim Amount Amount Modified Total
claimed awarded in appeal compensation
(in ₹) by the (in ₹) (in ₹)
tribunal
(in ₹)
1. Transport to 4000 5000 5000
hospital
2. Funeral expenses 12000 25000 -10000 15000
3. Pain & suffering 50000 15000 15000
4. Loss of estate 300000 25000 -10000 15000
5. Loss of consortium 300000 100000 100000
6. Loss of love and 300000 75000 -55000 20000
affection
7. Loss of 8000000 1287000 1911360 3198360
dependency
Total 1532000 1836360 3368360
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Accordingly, the appeal is allowed in part and the appellants
are awarded an additional compensation of ₹18,36,360/- (Rupees
eighteen lakh thirty six thousand three hundred and sixty only) over and
above the compensation awarded by the tribunal with interest @ 8% per
annum from the date of petition till realization and proportionate costs.
The respondent insurer shall deposit the said amount together with
interest and costs within a period of two months from the date of receipt
of a certified copy of this judgment. The appellants shall furnish copies
of the PAN Card, AADHAAR Card and bank details before the
respondent insurer within a period of one month so as to enable the
insurance company to make the deposit as ordered above. In case of
failure to furnish details as above, it shall be open for the insurance
company to deposit the said amount before the tribunal. Upon such
deposit being made, the entire amount shall be disbursed to the
appellants at the earliest in accordance with law.
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
