Kerala High Court
Fathima vs Munavar.K on 6 March, 2025
2025:KER:20350
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 6TH DAY OF MARCH 2025 / 15TH PHALGUNA, 1946
MACA NO. 2622 OF 2021
AGAINST THE AWARD DATED 06.03.2025 IN OPMV NO.264 OF
2019 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE
APPELLANT/PETITIONER:
1 FATHIMA
AGED 50 YEARS
W/O. LATE ASSAIN @HUSSAIN,SCHOOLKANDY,
MUNDOOR, POST PUTHOOR OMASSERY, KOZHIKODE 673
582.
2 MUHAMMED S.K
AGED 33 YEARS
S/O. LATE ASSAIN@HUSSAIN, SCHOOLKANDY,
MUNDOOR, POST PUTHOOR, OMASSERY, KOZHIKODE 673
582.
3 SULAIKA
AGED 31 YEARS
D/O. LATE ASSAIN @HUSSAIN, SCHOOLKANDY,
MUNDOOR, POST PUTHOOR, OMASSERY, KOZHIKODE 673
582.
4 SHABEER S.K
AGED 31 YEARS
S/O. LATE ASSAIN @HUSSAIN, SCHOOLKANDY,
MUNDOOR, POST PUTHOOR, OMASSERY,
KOZHIKODE 673 582.
BY ADVS.
DIVYA B.NAIR
R.RETHEESH KUMAR
A.MUMTHAZ
MACA No.2622/2021
2
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RESPONDENTS/RESPONDENTS:
1 MUNAVAR.K
S/O. MOIDEEN, KUNDATHIL HOUSE, P.O UNNIKULAM
KEDAVUR, KOZHIKODE 673 574
2 RAJEESH KUMAR P.K
AGED 32 YEARS
S/O. RAVEENDRAN, ALIYANKANDI HOUSE,
P.O UNNIKULAM, KANTHAPURAM, POONOOR,
KOZHIKODE 673 574
3 UNITED INDIA INSURANCE COMPANY LIMITED
DO-II, P.B NO. 192, SEEMA TOWERS,
MAVOOR ROAD, KOZHIKODE 673 001.
REPRESENTED BY ITS DIVISIONAL MANAGER.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 06.03.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
MACA No.2622/2021
3
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EASWARAN S., J.
---------------------------------------------------------
MACA No.2622 of 2021
----------------------------------------------------------
Dated this the 6th day of March, 2025
JUDGMENT
The appeal arises out of the award passed by the II Additional
Motor Accident Claims Tribunal, Kozhikode, in O.P.(MV)
No.264/2019.
2. The brief facts necessary for the disposal of the appeal
are as follows:
The legal heirs of deceased Assain @ Hussain approached the
Tribunal claiming compensation on account of the death of late
Assain, who met with an accident on 28.07.2015 at about 9 PM,
while he was riding a scooter bearing Reg.No.KL-56/D 1136 along
the Mukkom - Thamarassery public road, when a car bearing
Reg.No.KL-57/G 8976 came and hit against the scooter. As a result
of the accident, late Assain suffered serious injuries and was
admitted to Santhi Hospital, Omassery. Later, he was referred to
Medical College Hospital, Kozhikode, and was treated there as an
inpatient. But he succumbed to the injuries on 01.08.2015. The
claimants contended that deceased Assain was earning a monthly
income of Rs.20,000/- as a Mason. In support of their contention,
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Exts.A1 to A5 documents were produced. No oral or documentary
evidence was adduced on the side of the Insurance Company. The
Tribunal, on appreciation of evidence, found that the claimants
could not successfully prove the income of the deceased Assain and
hence, fixed the notional income of the deceased at Rs.6,000/-. As
the deceased Assain was aged 50 years, the Tribunal added 10% of
his income towards future prospects and arrived at Rs.6,600/-.
Altogether, the Tribunal awarded an amount of Rs.7,94,400/- as
total compensation to the appellants/claimants. The
appellants/claimants 2 and 4 are the major sons of deceased
Assain. Though the Tribunal granted compensation under the head
loss of consortium, the Tribunal did not consider the
appellants/claimants 2 and 4 as the dependents.
3. Aggrieved by the insufficiency in the grant of
compensation, the appellants have approached this Court in the
present appeal.
4. Heard, Smt.Divya B.Nair - learned counsel appearing on
behalf of the appellant and Sri.P.K.Manoj Kumar - learned counsel
appearing for the Insurance Company.
5. On a consideration of the rival submissions raised across
the Bar, this Court finds that the claimants are entitled to succeed.
The notional income fixed by the Tribunal is completely erroneous.
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Even going by the principle laid down by the Hon'ble Supreme
Court in Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the
claimants are entitled to get the monthly income of the deceased
Assain fixed at Rs.10,000/-. However, considering the fact that
deceased Assain was a Mason, this Court deems it appropriate to
fix the monthly income at Rs.11,500/-.
6. As regards the claim of dependency compensation, the
Tribunal excluded appellants/claimants 2 and 4 from the purview of
the dependency compensation on the ground that they are major
sons. This finding of the Tribunal cannot be sustained going by the
decision of the Hon'ble Supreme Court in National Insurance
Company Ltd. v. Birender and Others [(2020) 11 SCC 356],
wherein the Hon'ble Supreme Court held that married sons of the
deceased, being legal representatives, are also entitled for the
benefit of compensation, irrespective of whether the
representatives are fully dependent on the deceased or not. Also in
Seema Rani and Others v Oriental Insurance Company Ltd.
and Others [Civil Appeal No.2323/2025], decided on 11.02.2025,
arising out of SLP(C)No. 444 of 2025], the Hon'ble Supreme Court
had confirmed the principles laid down in Birender (supra).
Therefore, this Court is of the considered view that
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appellants/claimants 2 and 4 are also entitled to be considered for
the compensation under the head loss of dependency.
7. Still further, it may be noted that the deceased Assain
was admitted to hospital for four weeks and later he succumbed to
the injury. Since the death was not instantaneous, the claimants
are entitled for a reasonable compensation under the head pain and
suffering. Even in the case of death, the claimants are entitled for
an amount ranging from Rs.15,000/- to Rs.25,000/- as
compensation under the head pain and suffering, therefore this
Court sees no reason as to why they are not entitled for a higher
compensation under the head pain and suffering. Hence, on that
count also the appellants are entitled to succeed.
In the result, the appeal is allowed. The appellants are
entitled for enhanced compensation as follows:
Heads Amount awarded Total Enhanced amount
by the Tribunal compensation of compensation
awarded in
appeal
Notional income of the deceased Assain is fixed at Rs.11,500/-. Adding 10% future
prospects the income would come to Rs.12,650/-
Loss of dependency 5,80,800/- 12,52,350/- 6,71,550/-
[12650x12x11x3/4] [1252350-580800]
Pain and suffering 10,000/- 20,000/- 10,000/-
[20000-10000]
Loss of estate 15,000/- 18,000/- 3,000/-
[18000-15000]
Loss of consortium 160000 1,92,000/- 32,000/-
[48000x4] [192000-160000]
[10% future
prospects added
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twice]
Funeral expenses 15,000/- 18,000/- 3,000/-
[18000-15000]
Total enhanced amount of compensation 7,19,550/-
Accordingly, the appellants/claimants are awarded an
additional compensation of Rs.7,19,550/- (Rupees seven lakhs
nineteen thousand five hundred fifty only) over and above the
compensation awarded by the Tribunal with interest @8% per
annum from the date of petition till realization together with
proportionate costs. The Insurance Company is directed to deposit
the aforesaid amount within a period of two months from the date
of receipt of a copy of this judgment.
The appeal is ordered accordingly.
Sd/-
EASWARAN S.
JUDGE
ACR
