Abdul Kareem, Soudha & Siyad.K.A. v. Raheema & National Insurance Company Limited

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA, 1944 MACA NO. 3972 OF 2018 ``` ``` AGAINST THE AWARD IN OP(MV)NO.2126/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANTS:`** ``` 1ABDUL KAREEM AGED 63 YEARS F/O.LATE SHIHAB, S/O.KUNJU PAREETH, KOLLAMPARAMBIL HOUSE, NETTOOR P.O., ERNAKULAM DISTRICT. 2SOUDHA AGED 52 YEARS M/O.LATE SHIHAB, W/O.ABDUL KAREEM, KOLLAMPARAMBIL HOUSE, NETTOOR P.O., ERNAKULAM DISTRICT. 3SIYAD.K.A. AGED 30 YEARS B/O.LATE SHIHAB, S/O.ABDUL KAREEM, KOLLAMPARAMBIL HOUSE, NETTOOR P.O., ERNAKULAM DISTRICT. BY ADVS. JACOB SEBASTIAN SRI.K.V.WINSTON ``` ## **`RESPONDENTS:`** ``` 1RAHEEMA AGED 34 YEARS S/O.LATE SHIHAB, W/O.RAFEEK, KOLLAMPARAMBIL HOUSE, NETTOOR P.O., ERNAKULAM DISTRICT, NOW RESIDING AT BACKSIDE OF AL-AMEEN PUBLIC SCHOOL, EDAPPALLY, KOCHI - 682 024. 2NATIONAL INSURANCE COMPANY LIMITED DIVISION OFFICE, AJAY VIHAR, KOCHI – 16, ERNAKULAM DISTRICT, PIN - 682 016. BY ADVS. K.ABOOBACKER SIDHEEQUE P.G.JAYASHANKAR P.K.RESHMA (KALARICKAL)(K/875/2014) REVATHY P. MANOHARAN(K/000669/2014) S.RAJEEV (K/001711/2019)(K/001711/2019) SAJANA V.H(K/1174/2021) ``` ## **`MACA NO. 3972 OF 2018 2`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`MACA NO. 3972 OF 2018 3`** ## **`JUDGMENT`** The legal heirs of Shihab – who unfortunately died in a road accident on 14.09.2009, when he was riding a motor cycle, being knocked down by the offending vehicle driven in a rash and negligent manner – have filed this appeal against the Award of the Motor Accidents Claims Tribunal, Ernakulam (‘Tribunal’ for short), in O.P(MV)No.2126 of 2009, since they have been awarded only Rs.4,34,500/-, though they had claimed a much higher figure. 2. Sri.Winston K.V. - learned counsel for the appellants, pointed out that the main reason why the compensation awarded is so low is because the learned Tribunal has adopted the notional income of the deceased to be a mere Rs.5,000/-, against the claim of Rs.7,500/-, even though the latter figure has been proved through Exts.A16 and A17 – Employment Certificate and Bank Payment details respectively. He then added that the compensation under the head ‘Funeral Expenses’ and for ‘Loss of Love and Affection’/’Consortium’ is totally inadequate; while no amount has been given under the head ‘Loss of Estate’, even though this is mandated by the judgment of the Hon’ble Supreme Court in _**National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662].**_ He thus prayed that this appeal be allowed and just compensation awarded to his clients. ## **`MACA NO. 3972 OF 2018 4`** 3. Sri.P.G.Jayashankar – learned Standing Counsel for the Insurance Company, on the other hand, submitted that the computations adopted by the Tribunal are without error and therefore, prayed that this appeal be dismissed. 4. I have considered the afore rival submissions and have also gone through the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. 5. I find in favour with the appellants in part, on the question of notional income, because going by _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],**_ even in the case of a person with unascertainable income in the year 2009 - when the accident occurred - the notional income ought to have been taken as Rs.7,000/- per month. Therefore, even assuming that Exts.A16 and A17 have not been properly proved, this figure ought to have been reckoned and I fail to understand why the Tribunal has taken it to be only Rs.5,000/- per month. Certainly, 40% future prospects ought to have been added to this figure since, admittedly, the deceased was only 20 years at the time of accident and a bachelor. No doubt one half of his earnings ought to have been ## **`MACA NO. 3972 OF 2018 5`** deducted towards personal expenses which the Tribunal has already done. 6. That said, on the question of ‘Funeral Expenses’, the Tribunal ought to have granted Rs.15,000/-, going by _**Pranay Sethi (Supra)**_ and not Rs.7,500/- as now granted. 7. _Qua_ the compensation for ‘Loss of Consortium’ I have no doubt that the parents and brother of late Shihab are entitled to amounts under it; but in the case of his sister, who is arrayed as the 1[st] respondent herein, it may not be eligible, since she was already married, as is evident from the cause title of the claim itself. Therefore, an amount of Rs.1,20,000/- becomes eligible to them. 8. No doubt, an amount of Rs.15,000/- ought to have been granted by the Tribunal under the head ‘Loss of Estate’, since this is so stipulated in _**Pranay Sethi (Supra)**_ also. Resultantly, this appeal is partly allowed in the following manner: (a) The compensation under the head ‘Loss of Dependency’ is enhanced to Rs.10,58,400/-, reckoning the notional income of the deceased to be Rs.7,000/- per month, with 40% future prospects added to it and deducting one half towards personal expenses. The multiplier ## **`MACA NO. 3972 OF 2018 6`** adopted by this Court is 18, which is admitted to be the correct one and not 13 as adopted by the Tribunal, going by _**Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802].**_ (b) The compensation under the head ‘Funeral Expenses’ is enhanced to Rs.15,000/-, from Rs.7,500/- now granted by the Tribunal. (c) The compensation for ‘Love and Affection’ is enhanced to Rs.1,20,000/- from Rs.25,000/-, treating it as compensation for ‘Loss of Consortium’. (d) An additional amount of Rs.15,000/- is awarded under the head ‘Loss of Estate’ (e) The compensation awarded by the Tribunal under the head ‘Pain and Sufferings’ is deleted. In all other respects the the compensation awarded by the Tribunal will remain unaltered. Consequently the appellants will be at liberty to recover the compensation, as modified by this Court, from the Insurance Company, along with interest at the rate of 8% per annum as awarded by the Tribunal on all the heads except ‘Funeral Expenses’ and ‘Loss of Estate’. As far as these two heads are concerned, the interest will start only from October, 2017, being the month of the judgment of the ## **`MACA NO. 3972 OF 2018 7`** Hon’ble Supreme Court in _**Pranay Sethi (Supra).**_ Needless to say, while computing the interest as afore, a period of 2566 days, being the delay in filing this appeal, shall stand excluded. ## **`Sd/-`** ``` DEVAN RAMACHANDRAN JUDGE ``` ``` MC/2.3 ``` ## **`MACA NO. 3972 OF 2018 8`** ## **`APPENDIX OF MACA 3972/2018`** |`PETITIONER ANNEXURES`|| |---|---| |`ANNEXURE A1`|`TRUE COPY OF THE MEDICAL RECORDS WHICH`| ||`SHOW THE 1ST PETITIONER'S TREATMENT IN PVS`| ||`MEMORAIAL HOSPITAL, KALOOR FROM 06/02/2013`| ||`TO 17/09/2013.`| |`ANNEXURE A2`|`TRUE COPY OF THE MEDICAL RECORDS WHICH`| ||`SHOW THE 1ST PETITIONER'S TREATMENT IN THE`| ||`PVS MEMORIAL HOSPITAL, KALOOR FROM`| ||`06/01/2015 TO 17/01/2015.`| |`ANNEXURE A3`|`TRUE COPY OF THE MEDICAL RECORD DATED`| ||`25/11/2015 WHICH SHOWS THE 1ST`| ||`PETITIONER'S TREATMENT IN THE LOURDES`| ||`HOSPITAL, ERNAKULAM.`| |`ANNEXURE A4`|`TRUE COPY OF THE MEDICAL RECORD DATED`| ||`12/01/2016 WHICH SHOWS THE 1ST`| ||`PETITIONER'S TREATMENT IN THE MEDICAL`| ||`TRUST HOSPITAL, ERNAKULAM.`| |`ANNEXURE A5`|`TRUE COPY OF THE MEDICAL REPORT DATED`| ||`25/05/2016 ISSUED BY DR.WILLIAM`| ||`G.FULLINFAW, MBBS, MD (RD) RELATING TO TE`| ||`PETITIONER'S ILLNESS.`| |`ANNEXURE A6`|`TRUE COPY OF THE MEDICAL RECORD DATED`| ||`19/02/2018 WHICH SHOWS THE 1ST`| ||`PETITIONER'S TREATMENT IN THE SREE CHITRA`| ||`INSTITUTE OF MEDICAL SCIENCE AND`| ||`TECHNOLOGY, TRIVANDRUM.`| |`ANNEXURE A7`|`TRUE COPY OF THE MEDICAL RECORD DATED`| ||`18/04/2018 WHICH SHOWS THE 1ST`| ||`PETITIONER'S TREATMENT IN THE INDIRA`| ||`GANDHI COOPERTIVE HOSPITAL, ERNAKULAM.`| |`ANNEXURE A8`|`TRUE COPY OF THE MEDICAL RECORDS WHICH`| ||`SHOW THE 1ST PETITIONER'S TREATMENT IN THE`| ||`LISSIE HOSPITAL, ERNAKULAM FROM 29/01/2018`| ||`TO 03/10/2015.`|