Kerala High Court
Mohammed vs K.Anoop Kumar on 10 February, 2025
2025:KER:10873
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
MACA NO. 33 OF 2018
AGAINST THE AWARD DATED 24.07.2017 IN OPMV NO.466 OF
2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR
APPELLANTS/APPLICANTS:
1 MOHAMMED
AGED 53 YEARS
S/O.MOIDUNNI, NHATTUKATTIYIL HOUSE,
VALAYAMKULAM, KOKKUR P.O., MALAPPURAM DISTRICT.
2 KHAMARUNNISA
AGED 41 YEARS, W/O.MOHAMMED, NHATTUKATTIYIL HOUSE,
VALAYAMKULAM, KOKKUR P.O., MALAPPURAM.
3 MAJID
AGED 22 YEARS, S/O.MOHAMMED, NHATTUKATTIYIL HOUSE,
VALAYAMKULAM, KOKKUR P.O., MALAPPURAM.
4 MANSOOR
AGED 26 YEARS, S/O.MOHAMMED, NHATTUKATTIYIL HOUSE,
VALAYAMKULAM, KOKKUR P.O., MALAPPURAM.
5 MAHISIL
AGED 19 YEARS, S/O.MOHAMMED, NHATTUKATTIYIL HOUSE,
VALAYAMKULAM, KOKKUR P.O., MALAPPURAM.
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MACA NO.33 OF 2018
BY ADVS.
SRI.J.R.PREM NAVAZ
SRI.P.T.SHEEJISH
RESPONDENTS/RESPONDENTS:
1 K.ANOOP KUMAR
S/O.V.VELAYUDHAN, KRISHNA SADHANAM, PULIKKAL PO,
MALAPPURAM DISTRICT, PIN-673 637 (DRIVER)
2 MUHAMMED ASHRAF P.M
S/O.ABDURAHIMAN, PALAKKA PARAMBIL HOUSE,
TIRURANGADI P.O., MALAPPURAM DISTRICT,
PIN-676 306. (OWNER)
3 IFFCO TOKIO GENERAL INSURANCE COMPANY LTD.
2ND FLOOR, AL RABAHA ARCADE, PUZHPA JUNCTION,
KALLAI, KOZHIKODE DISTRICT, PIN-673 002.
SRI.P.JACOB MATHEW (R3)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 10.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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MACA NO.33 OF 2018
JUDGMENT
Dated this the 10th day of February, 2025
The petitioners in O.P.(MV) No.466/2015 on the files of the Motor
Accident Claims Tribunal, Tirur, are the appellants. They are the parents and
siblings of a ten year old child, who died in a motor vehicle accident, that
occurred on 31.05.2014. (For the purpose of convenience, the parties are
hereafter referred to as per their rank before the Tribunal).
2. According to the petitioners, on 31.05.2014, at about 4.30 p.m,
while the deceased was standing on the extreme side of the NH road at
valayamkulam, an Innova car bearing Registration No.KL-10-X-7530 driven
by the 1st respondent in a rash and negligent manner, hit down the child. As a
result of which, the child sustained serious injuries and succumbed to the
injuries on the same day.
3. The 1st respondent is the driver , the 2nd respondent is the owner
and 3rd respondent is the insurer of the offending vehicle. According to the
petitioners, the accident occurred due to the negligence of the driver of the
offending vehicle. The quantum of compensation claimed in the O.P. was
Rs.10,70,000/-.
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MACA NO.33 OF 2018
4. The insurance company filed a written statement, admitting the
accident as well as policy, but disputing the negligence on the part of the
driver of the offending vehicle.
5. The evidence in the case consists of documentary evidence of
Exts.A1 to A7. No evidence was adduced by the respondents.
6. After evaluating the evidence on record, the Tribunal awarded a
total compensation of Rs.2,95,000/- and directed the 3rd respondent, insurer of
the offending car to pay the same.
7. Aggrieved by the quantum of compensation awarded by the
Tribunal, the petitioners preferred this appeal.
8. Now the point that arises for consideration is the following:
Whether the quantum of compensation awarded by the Tribunal is just
and reasonable.
9. Heard Sri.P.T Sheejish, the learned Counsel appearing for the
petitioners and Sri.P.Jacob Mathew, the learned Standing Counsel for the 3rd
respondent.
10. The Tribunal has arrived at the compensation by taking the
annual income of the child as Rs.15,000/-, from which 1/3rd was deducted
towards personal and living expenses and applied the multiplier 15.
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11. The learned counsel for the petitioners argued that the notional
income of the deceased fixed by the Tribunal at Rs.15,000/- is too meager
when compared to the year of the accident, that occurred in 2014.
12. On the other hand, the learned counsel for the 3rd respondent,
relying upon the decisions of the Hon'ble Supreme Court in Kishan Gopal
and Another Vs. Lala and Others [2014 (1) SCC 244] and Meena Devi Vs.
Nunu Chand Mahto @ Nemchand Mahto [2023 (1) SCC 204], would
argue that in similar instances, the Hon'ble Supreme Court has fixed the
notional income of a child below 15 years at the rate of Rs.30,000/- per year.
13. On the other hand, the learned counsel for the petitioners, prayed
for applying the multiplier method in tune with the compensation assessed in
the case of adults. It was argued that during the year 2014, the notional
income of a coolie in the light of the decision of the Hon'ble Supreme Court
in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.
Ltd. [2011 (13) SCC 236], will come to Rs.9,500/-, and argued that the
compensation of the deceased in this case cannot be fixed below that of a
coolie during the relevant year.
14. He has also relied upon the decision of the Single Judge of this
Court in The Branch Manager, United India Insurance Company Ltd.
Vs. Mujeeb Rahman and Others (MACA No.45/2021) decided on
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MACA NO.33 OF 2018
20.01.2025, and argued that in the case of a child of 15 years, this Court has
fixed the notional income at Rs.18,900/- being the minimum wage fixed by
the State of Kerala for a skilled worker during the year 2018. Since the age
of the victim in the above case is 15 years, and the accident was occurred in
the year 2018, the dictum laid down in the above decision cannot be applied
in its strict sense, in this case.
15. At the same, it is to be noted that in Kishan Gopal (supra), the
accident was in the year 1992. Even in the year 1992, the Hon'ble Apex
Court has fixed the notional annual income of a ten year old child at a sum of
Rs.30,000/- and applied the multiplier of 15.
16. In Kusmi Devi Vs. Md. Kasim and Another [2023 ACJ 1658], a
three year old child, who died in a accident in the year 1994. The Hon'ble
Supreme Court has awarded a total compensation of Rs.6,00,000/- including
Rs.5,00,000/- awarded by the High Court. In the above case, an additional
sum of Rs.1,00,000/- was awarded by the Apex Court on the head 'global
enhancement', in the following words:
"4. In a matter of the present nature where the regular
parameters of determining the compensation cannot be
considered due to the uncertainties in life of a child and as held
by this Court, the lump sum compensation is being awarded.
Without prejudice to the contentions all the parties and in the
interest of justice, we deem it appropriate to grant a further sum
of Rs.1,00,000/- as global enhancement which shall be
deposited by the respondent No.2- Insurance Company before
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MACA NO.33 OF 2018
the MACT concerned within a period of three weeks from the
date of receipt of a copy of this judgment, whereupon the
amount shall be disbursed to the claimant."
17. It is true that most of the other cases, the notional annual income of
children below 15 years was taken at Rs.30,000/-. However, it is to be noted
that the notional annual income fixed in Kishan Gopal (supra), wherein the
accident was in the year 1992. An additional sum of Rs.1,00,000/- towards
global compensation was awarded for a three year old child, who died in the
year 1994.
18. In the instant case, the child aged 10 years died in an accident in
the year 2014. Therefore, applying the principle laid down by the Hon'ble
Supreme Court in Kishan Gopal (supra) for an accident in the year 1992 and
Kusmi Devi (supra) for an accident that occurred in the year 1994 could not
be justifiable. Therefore, a different yardstick has to be applied to award just
and reasonable compensation to the legal representatives of the deceased in
this case.
19. At the same time, the notional income fixed by the learned Single
Judge in Mujeeb Rahman (supra) being of the year 2018 appears to be on
the higher side. The present accident occurred 22 years after the accident in
Kishan Gopal (supra) and 20 years after the accident in Kusmi Devi (supra).
The money value in the meantime has decreased considerably.
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20. In the decision in National Insurance Company Ltd. Vs.
Assainar [2019 (4) KLT 39], a learned Single Judge of this Court after
relying upon various decisions, formulated a schedule for assessing the
compensation payable to children within the age group of 6 to 15, taking into
account the effect of inflation on the real money value. As per the above
decision, during the year 2014-2015, the annual income of a child, who died
in the age group 6 to 15, will come to Rs.87,000/- and the multiplier to be
applied is 15. Out of which, 1/3rd of the income is to be deducted towards
personal and living expense. Therefore, the compensation for dependency
payable to the child will be Rs.8,70,000/- (Rs.87,000/- x 15 x 2/3).
21. The Tribunal has awarded Rs.10,000/- towards loss of estate,
Rs.25,000/- towards funeral expenses, 5000/- for pain and sufferings and
1,00,000/- for love and affection. In the light of the decision in Pranay Sethi
(supra), they are entitled to get a consolidated sum of Rs.15,000/- towards
loss of estate, Rs.15,000/- towards funeral expenses, and each dependent is
entitled to get a sum of Rs.40,000/- each towards loss of consortium, with an
increase of 10% in every three years. Therefore, towards loss of estate and
funeral expense they are entitled to get a sum of Rs.18,150/- each. Towards
loss of consortium, petitioners 1 and 2 together are entitled to get a sum of
Rs. 96,800/- (48,400 x 2). They are not entitled to get any separate
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compensation on the head 'pain and suffering'.
22. Since compensation for loss of consortium was given, further
compensation for love and affection cannot be granted, in view of the
decision in New India Assurance Company Ltd. v. Somwati and Others,
(2020)9 SCC 644. Therefore, the compensation awarded towards love and
affection is to be deducted.
23. No change is required, in the amounts awarded on other heads,
as the compensation awarded on those heads appears to be just and
reasonable.
24. Therefore, the petitioners/ appellants are entitled to get a total
compensation of Rs.10,08,100/-, as modified and recalculated above and
given in the table below, for easy reference.
Sl.
No Head of Claim Amount awarded by Amount Awarded
Tribunal (in Rs.) in Appeal
(in Rs.)
1 Transport to Hospital 5,000 5,000
2 Funeral & Post Funeral 25,000 18,150
expenses
3 Pain and suffering 5000 Nil
4 Loss of love and 100000 Nil
affection
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5 Loss of estate 10,000 18,150
6 Compensation for loss of 1,50,000 8,70,000
dependency and other
economic benefits
7 Loss of Consortium Nil 96,800
Total 2,95,000/- 10,08,100/-
Enhanced Amount =Rs.7,13,100/-
25. In the result, this Appeal is allowed in part, and Respondent No.3
is directed to deposit a total sum of Rs.10,08,100/- (Rupees Ten Lakhs Eight
Thousand One Hundred Only), less the amount already deposited, if any,
along with interest @ 8% per annum, from the date of the petition till
deposit/realisation, with proportionate costs, within a period of two months
from today.
26. On depositing the aforesaid amount, the Tribunal shall disburse
the entire amount to the petitioner, excluding court fee payable, if any,
without delay, as per rules.
SD/-
C. PRATHEEP KUMAR,
JUDGE
JJ
