Kerala High Court

Subair vs Oriental Insurance Company Limited on 7 January, 2025

MACA. Nos.2141/2016 & 99/2019




                                      1
                                                    2025:KER:768

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

            THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

   TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946

                            MACA NO. 2141 OF 2016

          AGAINST THE AWARD DATED 05.02.2016 IN OPMV NO.1757 OF

2014 OF III ADDITIONAL MACT, KOZHIKODE

APPELLANT/3RD RESPONDENT:

              THE ORIENTAL INSURANCE CO. LTD
              METRO PALACE, GROUND FLOOR,
              OPP.NORTH RAILWAY STATION,ERNAKULAM,
              REPRESSENTED BY ITS DULY AUTHORIZED OFFICER.


              BY ADV SRI.VPK.PANICKER


RESPONDENT/PETITIONERS:

      1       SUBAIR
              S/O. ALIKUTTY, MOOSARIYEDATH HOUSE,
              MANIPURAM P.O., KOZHIKODE-673 582.

      2       RASIYA
              W/O. SUBAIR C., MOOSARIYEDATH HOUSE,
              MANIPURAM P.O., KOZHIKODE-673 582.
              (MOTHER OF DECEASED MUHAMMED SHAROOK).

      3       ALISHA NADEEM
              S/O. SUBAIR C., MOOSARIYEDATH HOUSE,
              MANIPURAM P.O., KOZHIKODE-673 582.
              (BROTHER OF DECEASED MUHAMMED SHAROOK)(MINOR
              REPRESENTED BY HER FATHER SUBAIR).
 MACA. Nos.2141/2016 & 99/2019




                                  2
                                                 2025:KER:768

      4       MUNNA MUSAFIR
              S/O. SUBAIR C., MOOSARIYEDATH HOUSE,
              MANIPURAM P.O., KOZHIKODE-673 582.
              (BROTHER OF DECEASED MUHAMMED SHAROOK)(MINOR,
              REPRESENTED BY HER FATHER SUBAIR).


              BY ADV SRI.V.N.RAMESAN NAMBISAN


       THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 07.01.2025, ALONG WITH MACA.99/2019, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 MACA. Nos.2141/2016 & 99/2019




                                         3
                                                      2025:KER:768



              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

            THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

   TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946

                                MACA NO. 99 OF 2019

          AGAINST THE AWARD DATED 05.02.2016 IN OPMV NO.1757 OF
2014 OF III ADDITIONAL MACT, KOZHIKODE

APPELLANTS/PETITIONERS:

      1       SUBAIR. C
              AGED 48 YEARS, S/O ALIKUTTY,
              MOOSARIYEDTH HOUSE, MANIPURAM.P.O,
              KOZHIKODE-673572(FATHER OF DECEASED MOHAMMED
              SHAROOK).

      2       RASIYA
              AGED 43 YEARS, W/O SUBAIR,
              MOOSARIYEDTH HOUSE,MANIPURAM.P.O,
              KOZHIKODE-673572(MOTHER OF DECEASED MOHAMMED
              SHAROOK).

      3       ALISHA NADEEM,
              AGED 18 YEARS, S/O SUBAIR,MOOSARIYEDTH
              HOUSE,MANIPURAM.P.O, KOZHIKODE-673572
              (BROTHER OF DECEASED MOHAMMED SHAROOK).

      4       MUNNA MUSAFIR
              AGED 13 YEARS, S/O SUBAIR,
              MOOSARIYEDTH HOUSE,MANIPURAM.P.O,
              KOZHIKODE-673572,(BROTHER OF DECEASED MOHAMMED
              SHAROOK)(MINOR REPRESENTED BY HER FATHER SUBAIR).


              BY ADV V.N.RAMESAN NAMBISAN
 MACA. Nos.2141/2016 & 99/2019




                                  4
                                                    2025:KER:768



RESPONDENT/RESPONDENT No.3:

              ORIENTAL INSURANCE COMPANY LIMITED
              MANJERI-676112,MALAPPURAM DISTRICT.


              BY ADV SRI.VPK.PANICKER


       THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 07.01.2025, ALONG WITH MACA.2141/2016, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 MACA. Nos.2141/2016 & 99/2019




                                      5
                                                          2025:KER:768



                                JUDGMENT

Dated this the 7th day of January, 2025

The 3rd respondent in OP(MV). No.1757/2014 on the file of the

Motor Accidents Claims Tribunal, Kozhikode is the appellant in MACA.

No.2141 of 2016. The petitioners in the OP are the appellants in

MACA.99 of 2019. For the purpose of convenience, the parties are

hereafter referred to as per their rank before the Tribunal.

2. The petitioners are the parents and minor siblings of deceased

Muhammed Sharookh, who died in a motor accident that occurred on

9.6.2013. According to them, on 9.6.2013, at about 1.30 p.m., while the

deceased was riding his motor cycle, a lorry bearing registration No.KL-

10-AB-9865 driven by the 2nd respondent in a rash and negligent manner

dashed against the motor cycle and as a result of which he sustained

serious injuries and he succumbed to the injuries, when he was taken to

the Medical College Hospital, Kozhikode.

3. The 1st respondent is the owner, the 2nd respondent is the driver

and 3rd respondent is the insurer of the offending vehicle. Therefore, they MACA. Nos.2141/2016 & 99/2019

2025:KER:768

filed the OP claiming a compensation of Rs.20,00,000/-.

4. The 1st and 2nd respondents remained ex-parte. The 3rd respondent

alone contested the case. The 3rd respondent/insurer filed a written statement,

admitting the policy and disputing the negligence on the part of the driver of

the offending vehicle. It was further contended that the accident occurred due

to the negligence of the deceased.

5. The evidence in the case consists of the oral testimony of PWs 1 and

2 and documentary evidence Exhibits A1 to A9. No evidence was adduced by

the respondents.

6. After evaluating the evidence on record, the Tribunal awarded a

total compensation of Rs.22,35,000/-.

7. Aggrieved by the above award, the 3rd respondent preferred

MACA.2141 of 2016 and petitioners filed MACA.99 of 2019.

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.V.P.K. Panicker, the learned Standing Counsel

appearing for the 3rd respondent and Sri.V.N Ramesan Nambisan, learned MACA. Nos.2141/2016 & 99/2019

2025:KER:768

counsel for the petitioners.

10. The Point: In this case the accident and valid policy of the

offending vehicle are admitted. Though in the written statement the 3 rd

respondent has contended that the accident occurred due to the negligence of

the deceased, at the time of arguments such a contention was not taken. The

petitioners produced Exhibit A2, copy of the Final Report involved in the

crime registered against the driver of the offending vehicle, in respect to the

above accident. In the light of the above Final Report, negligence on the part

of the driver of the offending vehicle stands proved. Therefore, the 3rd

respondent, being the insurer, is liable to indemnify the compensation, which

is liable to be awarded against the owner of the offending vehicle.

11. One of the contentions raised by the learned counsel for the 3 rd

respondent is, monthly income of the deceased fixed by the Tribunal as

Rs.15,000/-, is on the higher side. On the other hand, the learned counsel for

the petitioners would argue that int the light of the evidence of PWs 1 and 2

and from Exhibits A5 and A6, the income of the deceased was proved.

Exhibit A7 is the copy of the Certificate - Diploma in Foundation in Travel

and Tourism, issued by IATA Training & Development Institute in favour of MACA. Nos.2141/2016 & 99/2019

2025:KER:768

the deceased during 2013. Exhibit A6 is the salary certificate issued by PW2

stating that the deceased was getting a monthly salary of Rs.15,000/- while he

was working under PW2. The mother of the deceased was examined as

PW1. According to her, the deceased was working under PW2 in Akbar

Travels and getting a monthly salary of Rs.15,000/-. PW2 also deposed that

the deceased was working under him during the year 2012 and he was

getting Rs.15,000/- as salary. During cross examination, PW2 deposed that

he used to provide employment to those who passed Travel and Tourism

Certificate Course. He also claimed that the deceased worked in his travels

during the year 2012. However, Exhibit A5 is of the year June 2013. With

regard to the above discrepancy, no satisfactory explanation is forthcoming.

In the above circumstances the income shown in Exhibit A6 as such could

not be accepted.

12. However the fact remains that the deceased was a Diploma holder

in Foundation Travel and Tourism conducted by IATA Training &

Development Institute and was aged 19 at the time of the accident. Even as

per the dictum laid down by the Hon'ble Supreme Court in the decision in

Ramachandrappa v. Manger, Royal Sundaram Alliance Insurance Co. MACA. Nos.2141/2016 & 99/2019

2025:KER:768

Ltd. [2011 (13) SCC 236] , the notional income of a Coolie during the year

2013 will come to Rs.9,000/-. In the above circumstances, considering the

entire facts including the qualification of the deceased. I am inclined to

accept his notional income at Rs.12,000/-.

13. Since, on the date of accident, the deceased was aged 19 years,

40% of his income is to be added towards future prospects, in the light of the

decision in National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC

680] and the multiplier to be applied is 18.

14. Being a bachelor, deduction towards his personal and living

expense is fixed at 50%, in the light of the decision of Hon'ble Supreme

Court in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC

121]. Therefore, the loss of dependency will come to Rs.18,14,400/-

15. The Tribunal awarded Rs.25,000/-towards funeral expenses.

No compensation was awarded by the Tribunal on the heads loss of

estate and towards loss of consortium. Instead a sum of Rs.1,00,000/-

was awarded towards the head loss of love and affection. In the light

of the decision in Pranay Sethi (supra), the appellants are entitled to get MACA. Nos.2141/2016 & 99/2019

2025:KER:768

a consolidated sum of Rs.15,000/- towards loss of estate, another

Rs.15,000/- towards funeral expenses and Rs.40,000/- each to

petitioners 1 and 2 towards loss of consortium, with an increase of 10%

for every three years. Therefore, towards funeral expense the petitioners

are entitled to get a sum of Rs.18,150/-. Towards loss of estate also

they are entitled to get a sum of Rs.18,150/- and loss of consortium will

come to Rs. 96,800/- (48,400 x 2).

16. At the same time, the compensation awarded on the head loss

of love and affection is liable to be deducted in view of the decision in

New India Assurance Company Ltd. v. Somwati and Others [(2020)

9 SCC 644]. Therefore, the above sum of Rs.1,00,000/- given towards

love and affection will be deducted.

17. The Tribunal has not awarded any compensation towards the

head 'pain and sufferings'. Considering the fact that the deceased died on the

date of the accident itself, I hold that a sum of Rs.25,000/- will be a

reasonable compensation towards the head 'pain and sufferings'.

18. No change is required, in the amounts awarded on other heads,

as the compensation awarded on those heads appears to be just and MACA. Nos.2141/2016 & 99/2019

2025:KER:768

reasonable.

19. Therefore, the petitioner/appellant is entitled to get a total

compensation of Rs.1976500/-, as modified and recalculated above and

given in the table below, for easy reference:

 Sl.    Head of claim                         Amount awarded by     The amount
 No.                                          the Tribunal(Rs)      given in appeal
                                                                    (Rs.)
 1      Transport to hospital                 2,000/-               2,000/-
 2      Damage to clothing                    2,000/-               2,000/-
 3      Funeral expenses                      25,000/-              18,150/-
 4      Loss of dependency                    21,06,000/-           18,14,400/-
 5      Loss of love and affection            1,00,000/-            Nil
 6      Loss of estate                        Nil                   18,150/-
 7      Loss of consortium                    Nil                   96800
 8      Pain and suffering                    Nil                   25,000/-
        Total                                 22,35,000/-           1976500/-
        Amount reduced 2,58,500 (2235000-1976500)

20. In the result, MACA 2141 of 2016 is allowed in part, and MACA

99 of 2019 is dismissed as follows:

The 3rd respondent is directed to deposit a total compensation of

Rs.19,76,500/- (Rupees Nineteen Lakhs Seventy Six Thousand and Five

Hundred Only), less the amount already deposited, if any, along with interest

ordered by the Tribunal, from the date of the petition till realisation, within a

period of two months from today. (Interest rate for the enhanced MACA. Nos.2141/2016 & 99/2019

2025:KER:768

compensation is limited to 8%).

On depositing the aforesaid amount, the Tribunal shall disburse the

entire amount to the petitioners, in the ratio fixed by the Tribunal, excluding

court fee payable, if any, without delay, as per rules.