Abdul Salam and others v. K.K. Babu and Royal Sundaram Alliance Insurance Co. Ltd.

**MACA NO. 579 OF 2012** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 22[ND] DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943 MACA NO. 579 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1236/2010 OF PRINCIPAL** ## **MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANTS/PETITIONERS:** - 1 ABDUL SALAM S/O.ATHRUMANKUTTY, NELLOLICHALIL HOUSE, P.O.THAMARASSERY, KOZHIKODE. 2 RAMLA W/O.ABDUL SALAM, NELLOLICHALIL HOUSE P.O., THAMARASSERY, KOZHIKODE. - 3 MUHAMMED UABISE S/O.ABDUL SALAM, NELLOLICHALIL HOUSE P.O., THAMARASSERY, KOZHIKODE. 4 FASNA MINOR REPRESENTED BY HER FATHER AND LEGAL GUARDIAN ABDUL SALAM, NELLOLICHALIL HOUSE, P.O.THAMARASSERY, KOZHIKODE. BY ADVS. SRI.AVM.SALAHUDIN SMT.K.N.BINDU ## **RESPONDENTS/RESPONDENTS:** 1 K.K.BABU S/O.DAMODHARAN, KOODATHANKANDIYIL HOUSE, P.O.PARANOOR, NARIKKUNI, KOZHIKODE-673585. **MACA NO. 579 OF 2012** **2** 2 ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED 2ND FLOOR, AMRITHA TOWERS, OPP.MAHARAJAS GROUND, M.G.ROAD, COCHIN-11. BY ADVS. P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 579 OF 2012** **3** ## **JUDGMENT** The appellants were the petitioners in O.P (MV)No.1236/2010 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of 'Muhammed Faiz'(deceased - a minor child aged 14 years) - the son of the appellants 1 and 2 and the brother of the appellants 3 and 4. It was their case that, on 19.5.2010 while the deceased was pedelling his bicycle through the Thamarassery-Karadi road, a lorry bearing Reg. No.KL-57B-9602, hit against the bicycle of the deceased. The deceased sustained fatal injuries and lost his life instantaneously at the Medical College Hospital, Kozhikode. The lorry was owned and driven by the 1[st] respondent and was insured with the second respondent. Hence the appellants claimed a compensation of **MACA NO. 579 OF 2012** **4** Rs.3,00,000/- from the respondents. 3. The 1[st] respondent did not contest the proceeding. 4. The 2nd respondent had filed a written statement admitting that the lorry had a valid insurance coverage. However, the 2[nd] respondent disputed the age, income and occupation of the deceased. 5. The appellants had produced Exts.A1 to A4 in evidence. The respondents did not let in any evidence. 6 The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellants to recover from the 2[nd] respondent an amount of Rs.1,43,500/- with interest and Rs.1,000/- as cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri. A.V.M.Salahuddeen, the learned counsel appearing for the appellants/petitioners and Sri.P.Jacob Mathew, the learned counsel appearing for the 2[nd] **MACA NO. 579 OF 2012** **5** respondent-insurer. 9. The point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No: (i)** ## **Negligence and liability** 10. Ext.A1 F.I.R. and Ext.A2 postmortem certificate proves that the accident occurred due to the negligence of the 1st respondent – the driver of the lorry. Admittedly, the 2[nd] respondent was the insurer of the lorry. The respondents have not let in any evidence to controvert the pleadings in the claim petition or to discredit Exts.A1 and A2. The 2[nd] respondent has also not proved that the 1[st] respondent had violated the insurance policy conditions. Therefore, the 2[nd] respondent is to indemnify the liability of the 1[st] respondent arising out of the accident. ## **Question No:(ii)** 11. The deceased was aged fourteen years at the time of the accident. **MACA NO. 579 OF 2012** **6** 12. In **Kurvan Ansari Vs Shyam Kishore Murmu** [(2021) SCC OnLine SC 1060] and **Kishan Gopal & Anr. v. Lala & Others** [(2014)1 SCC 244], the Hon’ble Supreme Court has fixed the notional annual income of minor children at Rs.30,000/- and adopted the multiplier of ‘15’. 13. In the light of the ratio decidendi in **Kurvan Ansari** and **Kishan Gopal** (supra), I am of the firm view that the same yardstick has to be followed in the present case. Therefore, I award the appellants an amount of Rs.4,50,000/- as consolidated compensation, instead of Rs.1,12,500/- awarded by the Tribunal. ## **Conventional heads of claim** 14. The Hon'ble Supreme Court in clause (viii) of paragraph 61 of **National Insurance Co.Ltd v Pranay Sethi** [(2017) 16 SCC 680] has held that the dependents of the deceased are entitled for compensation under the conventional heads viz., funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- respectively. It is also observed that the **MACA NO. 579 OF 2012** **7** conventional heads of compensation have to be enhanced every three years by 10%. 15. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd.** [(2021) SCC Online SC 967] and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another** [(2021) SCC Online SC 1193], the Hon'ble Supreme Court has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accidents. Thus, it is to be interpreted and inferred that the escalation of 10% is to be awarded after three years from the pronouncement of **Pranay Sethi** (supra), which was rendered in the year 2017, and not for accidents that occurred three years after 2017. 16. In the instant case, the Tribunal has awarded an **MACA NO. 579 OF 2012** **8** amount of 3,000/- under the head 'funeral expenses'. In the light of the law laid down in the aforecited decisions, I award the appellants a further amount of Rs.13,500/- under the head 'funeral expenses'. Likewise, I award them an amount of Rs.16,500/- towards 'loss of estate' and an amount of Rs.44,000/- each to the appellants 1 and 2, i.e, Rs.88,000/- towards ‘loss of consortium’. ## **Loss of love and affection** 17. The Tribunal has awarded an amount of Rs.10,000/- under the head 'loss of love and affection' 18. In **New India Assurance Co. v. Somwati and others** [(2020) 9 SCC 644] the Hon'ble Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount awarded under the head 'loss of love and affection'. **MACA NO. 579 OF 2012** **9** ## **Pain and sufferings** 19. The Tribunal has also awarded an amount of Rs.10,000/- under the head 'pain and sufferings. As the deceased had lost his life instantaneously, in the light of the law laid down in paragraph 19 of **Sarala Verma** (supra) **,** I set aside the said amount. ## **Other heads of compensation** 20. With respect to the compensation awarded under the heads, transport to hospital, damage to clothing and treatment expenses, I find the same to be reasonable and just. 21. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I hold that the appellants/petitioners are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **MACA NO. 579 OF 2012** **10** **==> picture [463 x 436] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded by Amounts<br>the Tribunal (in modified and<br>.No rupees) recalculated by<br>this Court<br>1 Transport to hospital 2,000 2,000<br>2. Damage to clothing 1,000 1,000<br>3. Funeral Expenses 3,000 16,500<br>4. Medical expenses 5,000 5,000<br>---<br>5. Pain and sufferings 10,000<br>6. Loss of love and affection 10,000 ---<br>----<br>7. Loss of estate 16,500<br>----<br>8. Loss of consortium 88,000<br>9. Loss due to dependency 1,12,500 4,50,000<br>Total 1,43,500 5,79,000<br>=======<br>=======<br>**----- End of picture text -----**<br> 22. Even though the appellants had claimed only an amount of Rs.3,00,000/- as compensation, following the principles in **Kurvan Ansari** and **Kishan Gopal** (supra), I have awarded the appellants more compensation than what **MACA NO. 579 OF 2012** ## **11** is claimed in the claim petition. The said course is permissible, in view of the law laid down in **Nagappa vs. Gurudayal Singh** [ 2003 (1) KLT 115(SC) and **Rajesh vs. Rajbir Singh** [ 2013 (3) KLT 89 (SC)]. In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.4,35,500/- (Rupees Four Lakh Thirty Five Thousand Five Hundred only) with interest at the rate of 6% per annum from the date of claim petition till the date of deposit, after deducting the interest for a period of 59 days, i.e., the period of delay in preferring this appeal and as ordered by this Court on 2.11.2021 in C.M.Appln.No.1/2012, and proportionate cost. The 2[nd] respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellants 1 and 2, after deducting their liability, if any, towards court-fee, in the **MACA NO. 579 OF 2012** **12** ratio of 50:50 and in accordance with law. ma/23.2.2022 Sd/- **C.S.DIAS, JUDGE**