Kerala High Court
The Divisional Manager vs Ruksana on 17 February, 2025
MACA.152/2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
MACA NO. 152 OF 2016
AGAINST THE AWARD DATED 21.04.2015 IN OPMV NO.1421 OF
2010 OF IV ADDL. M.A.C.T., PATHANAMTHITTA
APPELLANT/3RD RESPONDENT IN OPMV 1421/2010
THE DIVISIONAL MANAGER
BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LTD.,
REGIONAL OFFICE, 3RD FLOOR, FINANCE TOWER,
REPRESENTED BY ITS MANAGER, KALOOR, COCHIN-682017,
ERNAKULAM.
BY ADV SEBASTIAN VARGHESE-SC
RESPONDENTS/PETITIONERS 1 TO 4 AND RESPONDENTS 1 AND 2 IN
OPMV 1421/2010
1 RUKSANA
D/O.ANCYMOL, CHALUMANNIL HOUSE, KADAKKADU P.O,
PANDALAM-689501.
2 MOHAMMED ARIF @ ARIF RASAK (MINOR)
S/O.ABDUL RASAK, CHALUMANNIL HOUSE, KADAKKADU P.O,
PANDALAM-689501, REPRESENTED BY SARA BEEVI,
W/O.DILKAR RAWTHER.
MACA.152/2016
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3 HISNA FATHIMA (MINOR)
D/O.ANCYMOL, CHALUMANNIL HOUSE, KADAKKADU P.O,
PANDALAM-689501 REPRESENTED BY MRS.SARA BEEVI,
W/O.DILKAR RAWTHER.
4 SARA BEEVI
W/O.DILKAR RAWTHER, CHALUMANNIL HOUSE, KADAKKADU
P.O, PANDALAM-689501.
5 RENJITH KUMAR C.S.
S/O.SREEDHARAN, CHETTIYAMPARAMBIL HOUSE,
KULAYETTIKKARA P.O., KECHERRY, ERNAKULAM-682315.
6 MS.POMANNY'S RITE CHOICE
SUPER STORES PVT.LTD., PENTA TOWER, KALOOR,
ERNAKULAM-682017.
BY ADVS.
A.N.SANTHOSH
K.N.RADHAKRISHNAN(THIRUVALLA)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 17.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA.152/2016
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JUDGMENT
Dated this the 17th day of February, 2025
The 3rd Respondent in O.P.(M.V.) No.1421/2010 on the file of the
additional Motor Accident Claims Tribunal, Pathanamthitta is the
appellant herein. (For the purpose of convenience, the parties are
hereafter referred to as per their rank before the Tribunal)
2. The O.P. was filed under under Section 166 of the Motor
Vehicles Act, 1988, by the children and mother of the deceased by name
Abdul Rasakh, who died in a motor vehicle accident that occurred on
5.8.2010. According to them, on 5.8.2010, at about 3.30. p.m., when the
deceased along with some other relatives were travelling in a Maruti
Car, along the Alapuzha-Pandalam road, a lorry bearing registration No.
KL 07-BM-3946 driven by the 1st respondent, in a rash and negligent
manner and in overspeed hit against the car and as a result of which the
deceased along with two other persons died and others sustained
injuries.
3. The 2nd respondent is the owner and 3rd respondent is the
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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.38,37,000/-.
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 the oral testimonies of
PWs1 and 2 and documentary evidence Exts.A1 to A36. No evidence
was adduced by the respondents.
6. After evaluating the evidence on record, the Tribunal found
negligence on the part of the driver of the offending vehicle, awarded a
total compensation of Rs.32,54,975/- and directed the insurer to pay the
same.
7. Aggrieved by the quantum of compensation awarded by the
Tribunal, the Respondent No.3 preferred this appeal.
8. Now the point that arises for consideration is the following:
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Whether the quantum of compensation awarded by the
Tribunal is just and reasonable?
9. Heard Sri. Sebastian Varghese, the learned Standing Counsel
appearing for the 3rd respondent/appellants, and Sri.A.N. Santhosh, the
learned Counsel for the petitioners
10. The Point: In this case the accident as well as valid policy of
the offending vehicle are admitted. One of the contentions raised by the
learned counsel for the 3rd respondent is regarding the negligence on the
part of the 1st respondent. The Tribunal found that the accident occurred
due to the negligence of the 1 st respondent namely, the driver of the
lorry. The petitioners produced Exhibit A7, the certified copy of the
charge sheet in Crime No.976/2010 of Thiruvalla Police Station
involved in the crime registered by the police in respect of the accident,
in which the negligence was found against the 1 st respondent. In
addition to the same, they have examined PW2, one of the occurrence
witnesses cited by the police in the charge sheet. He also deposed
evidence to the effect that the accident occurred due to the negligence of
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the lorry driver. No contra evidence was adduced by the 3 rd respondent.
In the above circumstances, the Tribunal was justified in finding that the
accident occurred due to the negligence of the 1st respondent.
11. Another contention raised by the learned counsel for the 3 rd
respondent is regarding the notional income of the deceased. According
to the petitioners, the deceased was a wholesale fish vendor getting a
monthly income of Rs.30,000/-. However, the Tribunal fixed his
monthly income at Rs.16,000/-, on the basis of the evidence that he has
the right to collect toll from a fish market, from where he was getting
income daily and that he used to remit Rs.200/- per day in a Service Co-
operative Bank and in addition to that he has other chitty transactions
also. In the above circumstances, the finding the tribunal that the
deceased has a monthly income of Rs.16,000/- is liable to be accepted
and I do not find any grounds to interfere with the same.
12. On the date of accident, the deceased was aged 41 years.
Therefore, 25% of the monthly income is liable to be added towards
future prospects, as held in the decision in National Insurance Co.Ltd
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v Pranay Sethi [(2017) 16 SCC 680] and the multiplier to be applied is
14, as held in Sarla Verma v. Delhi Transport Corporation, (2009) 6
SCC 121. Since the deceased was married who left behind 4 dependents,
towards personal and living expense, 1/4 of the income is liable to be
deducted, as held in Sarla Verma (supra). In the above circumstances,
the loss of dependency will come to Rs.25,20,000/-
13. The Tribunal has awarded Rs.1,00,000/- towards loss of
estate, Rs.25,000/- towards funeral expenses, and Rs.3,25,000/- towards
love and affection. According to the learned counsel for the 3 rd
respondent, the compensation awarded on these heads are on the higher
side. In the light of the decision in Pranay Sethi (supra), the appellants
are entitled to get a consolidated sum of Rs.15,000/- towards loss of
estate, Rs.15,000/- towards funeral expenses, and the dependents
(parents, children and spouse) are entitled to get a sum of Rs.40,000/-
each towards loss of consortium, with an increase of 10% in every three
years. Hence, towards loss of estate and funeral expense they are
entitled to get a sum of Rs.18,150/- each. Towards loss of consortium,
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petitioners together are entitled to get a compensation of Rs.1,93,600/-
(48,400 x4).
14. 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. The Tribunal has not
awarded any compensation towards loss of consortium.
15. Towards the head 'pain and sufferings', the Tribunal has
awarded Rs.50,000/-, which according to the learned counsel for the 3 rd
respondent, is on the higher side. The deceased died in this case 9 days
after the accident. Considering the facts, the compensation awarded
towards the head 'pain and suffering' is reduced to Rs.30,000/-
16. No change is required, in the amounts awarded on other
heads, as the compensation awarded on those heads appears to be just
and reasonable.
17. Therefore, the petitioners/appellants are entitled to get a total
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compensation of Rs.29,14,075/-, as modified and recalculated above and
given in the table below, for easy reference:
Sl.
No. Head of Claim Amount awarded by Amount Awarded in
Tribunal (in Rs.) Appeal (in Rs.)
1 Loss of dependency 26,20,800/- 25,20,000/-
2 Pain and suffering 50,000/- 30,000/-
3 Funeral expenses 25,000/- 18,150/-
4 Transport to hospital 1,000/- 1,000/-
5 Damage to clothes 1,000/- 1,000/-
6 Loss of love and affection 3,25,000/- Nil
7 Medical expenses 1,32,175/- 1,32,175/-
8 Loss of estate 1,00,000/- 18,150/-
9 Loss of consortium Nil 1,93,600/-
Total 32,54,975/- 29,14,075/-
Reduced Rs.3,40,900/-
18. In the result, this Appeal is allowed in part, and the 3 rd
respondent is directed to deposit a total sum of Rs.29,14,075/- (Rupees
Twenty Nine Lakh Fourteen Thousand and Seventy Five Only), less the
amount already deposited, if any, along with interest at the rate ordered
by the Tribunal, from the date of the petition till realisation/deposit,
within a period of two months from today.
19. On depositing the aforesaid amount, the Tribunal shall disburse
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the entire amount to the petitioners, in the ratio fixed by the Tribunal,
excluding court fee payable, if any, without delay, as per rules. O
n depositing the aforesaid amount, the Sd/-
ll disburse the entire amount to the petitioners C. PRATHEEP KUMAR,
JUDGE
sou.
