Abdul Salam and Repheekka Beevi v. Bind M.K., Shibulal, The Branch Manager, The New India Assurance Company Ltd., and A. Muhamad Shereef

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **SATURDAY,THE 27[TH] DAY OF NOVEMBER 2021/6TH AGRAHAYANA, 1943 MACA NO. 853 OF 2014** **AGAINST THE AWARD DATED 14.06.2013 IN O.P.(MV) NO.1362 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANTS:** - **1 ABDUL SALAM AGED 59 YEARS, S/O SULAIMAN KUNJU, MUTHIRAPARAMBIL, THEVALLY P.O, KOLLAM.** - **2 REPHEEKKA BEEVI, AGED 55 YEARS, W/O ABDUL SALAM, MUTHIRAPARAMBIL THEVALLY P.O, KOLLAM.** **BY ADVS. SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER** ## **RESPONDENTS:** - **1 BINDU M.K., VILAYIL VEEDU, 7/504, NEELAMAL, KARAVALOOR P.O, PUNALUR, KOLLAM.** - **2 SHIBULAL, S/O SASILAL, NIVAS, TIRUMULLAVARAM P.O, KOLLAM.** - **3 THE BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD, BEACH ROAD, KOLLAM.** 2 M.A.C.A.No.853 of 2014 ## **4 A. MUHAMAD SHEREEF, VALIYAVEETTIL HOSUE, AYATHIL P.O, KOLLAM.** **R3 BY ADV SRI.N.S.NAJEEB** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR FINAL HEARING ON 27.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 M.A.C.A.No.853 of 2014 ## **JUDGMENT** Appeal under Section 173 of the Motor Vehicles Act, 1988. The appellants were the petitioners in O.P.(MV) No.1362 of 2009 on the file of the Motor Accidents Claims Tribunal, Kollam. The respondents in the appeal were respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Act, claiming compensation on account of the death of their son. 3. On 12.05.2019, Sri. Dilshad was travelling in a car bearing Reg.No.KL-25-3104 along Kollam-Thiruvananthapuram NH-47. When the car reached Kadampattukonam at about 11 p.m., it hit a motorcycle bearing Reg.No.KL-01-X-8666, coming in the opposite direction. As a result, the car capsized, resulting in serious injuries to Dilshad. On the next day, i.e., 13.05.2019 Dilshad succumbed to the injuries sustained in the accident. The incident occurred due to the rash and negligent driving of the car. 4 M.A.C.A.No.853 of 2014 4. The appellants are the parents of the deceased. They filed claim petition as O.P.(MV) No.1362 of 2019 before the Motor Accidents Claims Tribunal, Kollam claiming compensation of Rs.10 lakhs. The 2[nd] respondent was the driver of the car. The 1[st] respondent was the registered owner. But at the time of incident, the ownership stood transferred in the name of the 4[th] respondent. The 3[rd] respondent is the insurer. 5. The Tribunal examined PW1, the 1[st] appellant. Exts.A1 to A11, B1 and B2 were received in evidence. After considering the evidence on record and hearing both sides, the Tribunal passed the impugned award ordering payment of Rs.1,88,000/- as compensation along with interest at the rate of 9% per annum and costs. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants are in appeal. 7. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the 3[rd] respondent. 5 M.A.C.A.No.853 of 2014 8. The policy of the offending car bearing Reg.No.KL25-3104 is admitted. There was no dispute regarding the liability of the 3[rd] respondent for payment of compensation claimed in respect of the death of Sri.Dilshad. The learned counsel for the appellants would submit that reconsideration and refixation of compensation under the heads 'funeral expenses', 'loss of consortium’ and ‘loss of earning’ is required. Compensation for ‘pain and suffering’ was illegally denied as well. 9. The learned Tribunal ordered payment of Rs.5,000/- towards funeral expenses. I am of the view that the Tribunal ought to have awarded Rs.15,000/-, and therefore the compensation under the head 'funeral expenses' is refixed as Rs.15,000/-, an enhancement of Rs. 10,000/-. 10. The Tribunal did not award any compensation for 'loss of consortium and loss of love, affection and care'. Here, the parents lost their son at the age of 20 years. The Tribunal has awarded Rs.10,000/- as compensation for 'loss of love, affection and care'. 6 M.A.C.A.No.853 of 2014 11. Having heard the learned counsel on both sides, I am of the view that the appellants 1 and 2 are entitled to get Rs.40,000/- each as compensation towards 'loss of consortium and care of parents'. Compensation for loss of consortium takes in compensation for 'love, affection and care' and therefore, the compensation of Rs. 10,000/awarded under the head 'love, affection and care' will be deducted from the compensation awarded for loss of consortium and care of parents. 12. The Tribunal did not award any compensation on account of pain and suffering. The incident occurred on 12.05.2019. The deceased was taken to the Medical College Hospital, Thiruvananthapuram. He underwent treatment there for a day. He died on 13.05.2019. Considering those facts, the compensation for pain and suffering should have been ordered by the learned Tribunal. I am of the view that the appellants are entitled to get an amount of Rs.10,000/- towards compensation due to the deceased on account of pain and suffering. 7 M.A.C.A.No.853 of 2014 13. The notional income of the deceased fixed by the learned Tribunal is less going by the principles laid down by the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** and as explained the principles by this Court in **Gopinathan A. and others v. Afzal Basha and another [2020 (3) KHC 666].** The Tribunal has taken the notional income as Rs. 4,000/-. It is incorrect. Accident and death was in 2009. Therefore, the appropriate notional income is Rs.7,000/-. After deduction personal and living expenses at the rate of 50% net income is taken as Rs.3,750/-. The deceased was unmarried and the parents alone are the claimants. Considering their age and all attending circumstances, I am of the view that no compensation for future prospects need be ordered. 14. Multiplier applicable to this case going by the decision in **National Insurance Co. Ltd vs Pranay Sethi [(2017) 16 SCC 680]** is 18, since the deceased was aged 20 years at the time of the accident. Hence, the compensation 8 M.A.C.A.No.853 of 2014 for loss of earning is refixed as Rs.3,750 x 12 x 18 = Rs.8,10,000/-. After deducting the compensation of Rs.1,68,000/- already granted, the enhancement is Rs.6,42,000/-. 15. In view of what are stated above, over and above the compensation quantified by the learned Tribunal, an enhancement of compensation of Rs.7,32,000/- is granted. 16. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed in part, by enhancing the compensation by an amount of Rs.7,32,000/- (Rupees seven lakh, thirty two thousand only) with interest at the rate of 7.5% per annum on the enhanced amount, from the date of petition till the date of deposit, and a costs of Rs.10,000/-. The 3[rd] respondent is ordered to make payment of the enhanced compensation with interest and costs through the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall see that the 9 M.A.C.A.No.853 of 2014 amount of enhanced compensation is duly disbursed to the appellant in accordance with law. SD/- ## **P.G. AJITHKUMAR, JUDGE** dkr