Kerala High Court
Miseri Ebrahim vs Devasia on 13 January, 2025
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 13TH DAY OF JANUARY 2025 / 23RD POUSHA, 1946
MACA NO. 2069 OF 2016
AGAINST THE ORDER/JUDGMENT DATED 27.10.2015 IN OPMV
NO.214 OF 2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
PERUMBAVOOR
APPELLANTS:
1 MISERI EBRAHIM
W/O. LATE EBRAHIM, CHITTETHUKUDY HOUSE,ASAMANNOOR,
ODAKKALY.
2 ANWAR SADATH C.E
AGED 18 YEARS
AGED 18 YEARS, S/O. LATE EBRAHIM,CHITTETHUKUDY
HOUSE, ASAMANNOOR,ODAKKALY.
3 SHAHINA
D/O. LATE EBRAHIM, CHITTETHUKUDY HOUSE,ASAMANNOOR,
ODAKKALY (MINOR) DOB 27-07-93REPRESENTED BY MOTHER
MISERI EBRAHIM,W/O. LATE EBRAHIM, CHITTETHUKUDY
HOUSE,ASAMANNOOR, ODAKKALY.
4 HASHIB
MINOR, S/O. LATE EBRAHIM, CHITTETHUKUDY
HOUSE,ASAMANNOOR, ODAKKALY, REPRESENTD BY
MOTHERMISERI EBRAHIM, W/O. LATE
EBRAHIM,CHITTETHUKUDY HOUSE, ASAMANNOOR, ODAKKALY,
(DOB 22-5-1999).
BY ADVS.
SRI.ABU MATHEW
SRI.AJU MATHEW
MACA No.2069/2016
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RESPONDENTS:
1 DEVASIA
S/O. DEVASSIA, HOUSE NO. 3/746,PERIMATTATHIL
HOUSE, KANJIKUZHI,IDUKKI DISTRICT.
2 BIJU SEBASTIAN
S/O. SEBASTIAN, PERIMATTATHIL HOUSE,KEERITHODE,
IDUKKI DISTRICT.
3 UNITED INDIA INSURANCE COMPANY LIMITED
BRANCH OFFICE, KANNATTU SHOPPING
COMPLEX,KALLARKUTTY ROAD, ADIMALI.
4 MEERAN
FATHER OF LAE EBRAHIM, CHITTETHUKUDY
HOUSE,ASAMANNOOR P.O., ODAKKALY, ERNAKULAM
DISTRICT.
5 KADEEJA
MOTHER OF LATE EBRAHIM, CHITTETHUKUDY
HOUSE,ASAMANNOOR P.O., ODAKKALY, ERNAKULAM
DISTRICT.
6 CHITHU
W/O. LATE EBRAHIM, CHITTETHUKUDY HOUSE,ASAMANNOOR
P.O., ODAKKALY, ERNAKULAM DISTRICT.
7 ASHRAF
S/O. LATE EBRAHIM, CHITTETHUKUDY HOUSE,ASAMANNOOR
P.O., ODAKKALY, ERNAKULAM DISTRICT.
8 SALEENA
D/O. LATE EBRAHIM, CHITTETHUKUDY HOUSE,ASAMANNOOR
P.O., ODAKKALY, ERNAKULAM DISTRICT.
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9 HASSENA
D/O. LATE EBRAHIM, CHITTETHUKUDY HOUSE,ASAMANNOOR
P.O., ODAKKALY, ERNAKULAM DISTRICT.
10 NOUSHAD
S/O. LATE EBRAHIM, CHITTETHUKUDY HOUSE,ASAMANNOOR
P.O., ODAKKALY, ERNAKULAM DISTRICT.
BY ADVS.
LATHA SUSAN CHERIAN
K.S.SANTHI
OTHER PRESENT:
SMT. LATHA SUSAN CHERIAN FOR R3.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 21.06.2024, THE COURT ON 13.01.2025 DELIVERED THE
FOLLOWING:
MACA No.2069/2016
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V.G.ARUN, J
= = = = = = = = = = = = = = = = = =
MACA No.2069 of 2016
= = = = = = = = = = = = = = = = = = =
Dated this the 13th day of January, 2025
JUDGMENT
Appellants are the second wife and three children of
deceased Ebrahim, who died in a motor accident on
08.01.2010. The accident occurred at about 9.30 am, when the
jeep driven by the 2nd respondent dashed against the motor
cycle in which Ebrahim was riding pillion. Although Ebrahim
was taken to the hospital immediately, he succumbed to the
injuries sustained in the accident on 08.01.2010 itself.
Appellants thereupon filed OP.(MV) No.214 of 2010 before the
Motor Accidents Claims Tribunal, Perumbavoor. The original
petition was taken along with OP.(MV) No.360 of 2010 filed by
the parents, first wife and the four children of Ebrahim born in
that marriage. While appellants claimed Rs.16,00,000/- as
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compensation, petitioners in OP.(MV) No.360 of 2010 claimed
Rs,5,00,000/-. After consolidating the claims, Tribunal passed
the impugned award, granting compensation of Rs.12,68,442/-
and apportioned the amount among the legal representatives.
2. Heard Adv.Abu Mathew for the appellants and Advocate
Latha Susan Cherian for the insurer.
3. A perusal of the impugned award shows that the
Tribunal had refused to accept the contention of the appellants
that the deceased had been earning Rs.6,000/- per month from
his stationery shop in the absence of evidence to substantiate
the claim. The Tribunal therefore proceeded to assess the
notional income of the deceased and fixed it as Rs.5000/-. The
Tribunal committed a mistake in fixing the income as Rs.5000/-
and ought to have fixed the notional income as Rs.7500/- per
month, taking guidance from the decision in
Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Company Ltd. [(2011) 13 SCC 236]. Going by
the decision in National Insurance Company Ltd. v.
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Pranay Sethi and Others [(2017) 16 SCC 680], 15% of the
income is to be added towards future prospects, as the
deceased was a self employed person aged 54 years.
Calculated in that manner, the monthly income would be
Rs.8625/- (7500+1125).
4. Following Sarla Verma and Others v. Delhi
Transport Corporation and Another [(2009) 6 SCC 121],
1/5th of the income has to be deducted towards personal and
living expenses. Thus, the compensation towards loss of
dependency has to be calculated as under;
Rs.8625x12x11x4/5 = Rs.9,10,800/ -
5. In Magma General Insurance Co.Ltd v. Nanu Ram
alias Chuhru Ram and others [(2018) 18 SCC 130], the
Apex Court has categorized the loss of consortium as filial,
parental and spousal. In the case at hand, the Tribunal has
awarded Rs.1,00,000/- as compensation for loss of consortium.
In Pranay Sethi (supra), loss of consortium is fixed as
Rs.40,000/- for each legal representative falling in the above
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three categories. Deceased Ebrahim had eleven such legal
representatives entitled for compensation towards loss of
consortium. Thus, the legal representatives were entitled for
Rs.4,40,000/- in total towards compensation for loss of
consortium. In this context, it is essential to note that, by the
award, Rs.5,00,000/- has been granted as compensation for loss
of love and affection. The legal position, settled through a
series of decisions, is that no compensation is payable under
the head love and affection (See United India Insurance
Company Limited v. Satinder Kaur @ Satwinder Kaur And
Others [(2021) 11 SCC 780] and Raj Bala and Others v.
Raveja Begam and Others [2022 SCC OnLine SC 1453]). As
the insurance company has not challenged grant of
compensation under that head, no interference is warranted in
this appeal. Be that as it may, award of compensation for loss
of love and affection has disentitled the appellants from
claiming enhancement of the amount awarded as compensation
for loss of consortium. In the result, the appeal is disposed of
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by awarding enhanced compensation of Rs.1,98,000/-
(8,05,200-6,07,200).
6. The amount granted towards enhanced compensation
shall be paid to the appellant within three months, with interest
@ 9% from the date of petition, except for the 46 days of delay
in filing the appeal.
The MACA is disposed of accordingly.
Sd/-
V.G.ARUN, JUDGE
sj
