High Court of KeralaSingle Judge2024-05-20Appeal allowed in part; enhanced compensation a...

Annadampan Moideenkutty and Karipparamban Amina v. United India Insurance Company Ltd; The New India Assurance Company Ltd; National Insurance Company Ltd; Ummer Khathab Vengodan; K. Fathima; Salih So. Ubaid; Siddique So. BichikoYa

Case / Petition Number:MACA No. 1706 of 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sophy Thomas
Judgment Date: 2024-05-20
Court Decision / Holding: The appeal is allowed to the extent as above and no order as to costs. The 3rd respondent insurer of the offending bus is directed to deposit the enhanced compensation of Rs.6,86,500 with 7% interest per annum from the date of petition till the date of deposit before the Motor Accidents Claims Tribunal, Manjeri within two months from receipt of a copy of the judgment. The Tribunal shall disburse the amount to appellants in equal shares after deducting tax and other liabilities. Additionally, 50% of the Tribunal’s amount, previously directed to be deposited by the 5th respondent, is to be deposited by the 3rd respondent with 7% interest. The entire liability lies with the 3rd respondent insurer.
Final Disposition: Appeal allowed in part; enhanced compensation awarded; insurer of bus directed to deposit enhanced amount with interest; liability clarified; no costs.

Parties to the Case

Appellants / Petitioners

Annadampan Moideenkutty
Karipparamban Amina

Respondents

Ummer Khathab Vengodan House, Pathirikkode, Elankoor, Malappuram District (Driver)
K. Fathima W/o Sainudheen Vilakkumadathil House, Moodu Manzil, N.S.S. College, Hill Top Road, Manjeri, Malappuram District
The New India Assurance Company Ltd., Muvattupuzha, Ernakulam District
Salih So. Ubaid Kolathila Poyi House, Vavoor, Cheekode P.O., Malappuram District
Siddique So. BichikoYa Parakkolil House, Vettupara, Cheekode P.O., Malappuram District
The National Insurance Company Ltd., Kannur

Legal Representation & Advocates

Counsels for Petitioners

• Sri. K. Rakesh

Counsels for Respondents

• Sri. L. L. K. Joseph (SC) for The New India Assurance Co. Ltd., Sri. Latha Susan Cherian (SC) for National Insurance Co. Ltd.
• Lal K. Joseph
• Suresh Sukumar
• Anzil Salim

Case Synopsis & Summary

The Kerala High Court hears MACA No. 1706 of 2010, challenging the Motor Accidents Claims Tribunal, Manjeri award in OP(MV) 1256 of 2005. The accident occurred in 2005 when a bus (KL-10-R-1701) driven rashly by the 1st respondent struck a motorcycle; Muhammed Rafeeq, a 22-year-old pillion rider, died the same day. The Tribunal awarded Rs. 1,80,500 with liability split: the 3rd respondent (bus insurer) and 5th respondent (motorcycle owner) shared liability; the 6th respondent (motorcycle insurer) was exonerated. The appellants argue the pillion rider cannot bear contributory negligence of the rider, and contend the bus driver/owner/insurer should bear full liability, including the 6th insurer’s liability. They challenge the quantum, noting the deceased’s income as a coolie and the Tribunal’s notional Rs. 2,500/month, urging Ramachandrappa guidance to fix Rs. 5,000/month with 40% future prospects and an 18-year multiplier, yielding Rs. 7,56,000 in loss of dependency after 50% deduction for personal expenses. They invoke Pranay Sethi to enhance non-pecuniary heads: love and affection, funeral expenses, loss of estate, and argue pain and suffering should be absorbed when death occurs on the date of accident per Satinder Kaur. The High Court partially allows the appeal, enhancing total compensation to Rs. 6,86,500 and holds the bus insurer liable, directing deposit with 7% interest, and equal share distribution to the claimants."

Legal Doctrines & Maxims

Notional income and future prospects doctrine (Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., AIR 2011 SC 2951)
Enhancement of damages under non-pecuniary heads as per Pranay Sethi and Others (2017) 16 SCC 680
Personal nature of pain and suffering claim and deduction when death occurs on the date of accident (United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur and Others, (2021) 11 SCC 780)
Deduction of 50% for personal expenses in dependency calculations
Interest on enhanced compensation at 7% per annum

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that the pillion rider was a total stranger to the offending bus and could not be held liable for the rider's negligent act. They contended the 6th respondent insurer of the motorcycle was improperly exonerated; the 3rd respondent (bus insurer) and the 5th respondent (motorcycle owner) should bear the liability, with the pillion passenger entitled to recovery from the bus's set of responsible parties. They attacked the quantum: the notional income of Rs. 2,500/month used by the Tribunal was inadequate for a 22-year-old coolie; invoking Ramachandrappa, they argued for Rs.5,000/month with 40% future prospects, 18-year multiplier, and a 50% deduction for personal expenses, yielding higher loss of dependency (Rs.7,56,000). They applied Pranay Sethi to enhance non-pecuniary heads (love and affection Rs.80,000; funeral Rs.15,000; loss of estate Rs.15,000) and urged removal of pain and suffering since death occurred on the date of accident per Satinder Kaur.

Contentions of Respondents

The respondents defended the Tribunal's findings, including the liability split and the exoneration of the motorcycle insurer for certain aspects. They emphasized contributory negligence and the policy coverage of the case, arguing that the tribunal’s quantum, including the heads of damages, should remain within reasonable bounds. They pointed to the insured bus's driver and owner’s liability and the need to consider the motorcycle rider's potential negligence in determining compensation, while maintaining that insurance policy terms and statutory limits govern the liability distribution. They relied on established jurisprudence to argue against drastic enhancements and to justify the Tribunal's approach to dependency calculations and non-pecuniary damages within the framework of the cited precedents.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	AIR 2011 SC 2951	Positive	Court applies Ramachandrappa's notional income and future prospects framework for calculating loss of dependency.
Pranay Sethi and Others	[(2017) 16 SCC 680]	Positive	Used guidelines from Pranay Sethi for non-pecuniary damages (love and affection, funeral expenses, loss of estate).
United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur and Others	(2021) 11 SCC 780	Positive	Applied ruling that pain and suffering is a personal claim when death occurs on the date of the accident, justifying deduction of Rs. 5,000.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` MONDAY, THE 20[TH] DAY OF MAY 2024 / 30TH VAISAKHA, 1946 ``` ## _`MACA NO. 1706 OF 2010`_ ``` AGAINST THE AWARD PASSED BY THE M.A.C.T., MANJERI DATED 23.04.2010 IN ``` ``` OP(MV) NO.1256 OF 2005 ``` ## _`APPELLANT/PETITIONER:`_ - _`1 ANNADAMPAN MOIDEENKUTTY, S/O ALAVI KOLATHILA POYI HOUSE, VAVOOR, CHEEKODE P.O.,, MALAPPURAM DISRICT.`_ - _`2 KARIPARAMBAN AMINA, W/O.ANNADAMPAN MOIDEENKUTTY,KOLATHILA POYI HOUSE,, VAVOOR, CHEEKODE P.O., MALAPPURAM DISRICT. BY ADV SRI.K.RAKESH`_ ## _`RESPONDENTS/RESPONDENTS & SUPPL RESPONDENTS 4,5 & 6:`_ - _`1 UMMER KHATHAB VENGODAN HOUSE, PATHIRIKKODE, ELANKOOR,, MALAPPURAM DISTRICT,DRIVER PIN 676 121.`_ - _`2 K.FATHIMA W/O.SAINUDHEEN VILAKKUMADATHIL HOUSE, MOIDU MANZIL,, N.S.S.COLLEGE, HILL TOP ROAD, MANJERI,, MALAPPURAM DISTRICT, PIN 676 122.`_ - _`3 THE NEW INDIA ASSURANCE COMPANY LTD. MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN 686 661.`_ - _`4 SALIH SO.UBAID KOLATHILA POYI HOUSE VAVOOR, CHEEKODE P.O., MALAPPURAM DISTRICT,, PIN 673 640.`_ - _`5 SIDDIQUE SO.BICHIKOYA PARAKKOLIL HOUSE, VETTUPARA, CHEEKODE P.O.,, MALAPPURAM DISTRICT,PIN 673 640.`_ - _`6 THE NATIONAL INSURANCE COMPANY LTD. KANNUR, PIN 670 001. BY ADVS. Sri.LAL K JOSEPH, SC, NEW INDIA ASSURANCE COMPANY LTD. SMT.lATHA SUSAN CHERIAN, SC, NATIONAL INSURANCE COMPANY LIMITED LAL K JOSEPH SURESH SUKUMAR(K/634/1997) ANZIL SALIM(K/000447/2018)`_ ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA. No. 1706 of 2010 ``` ``` ..2.. ``` ## **SOPHY THOMAS, J.** ## **=====================** M.A.C.A. No. 1706 of 2010 ## **========================** ## _**J U D G M E N T**_ ## **Dated this the 20[th] day of May, 2024** The claimants in O.P. (M.V) No. 1256 of 2005 on the file of Motor Accidents Claims Tribunal, Manjeri are the appellants herein. They are challenging the award on the ground of inadequacy of compensation, as well as exoneration of the 6[th ] respondent from compensating the claimants. 2. One Mr. Muhammed Rafeeq aged 22 years, while travelling pillion in a motorcycle ridden by the 4[th] respondent was knocked down by KL-10-R-1701 bus driven by the 1[st] respondent in a rash and negligent manner. He sustained fatal ``` MACA. No. 1706 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** injuries, and succumbed to the same on the same day. He was a coolie earning monthly income of Rs.6,000/-. The claimants who are his parents, approached the Tribunal claiming compensation of Rs.3,00,000/-. The Tribunal awarded compensation of Rs.1,80,500/- fixing the liability equally on the 3[rd] respondent insurer of the bus, and the 5[th] respondent the owner of the motorcycle. The 6[th] respondent, the insurance company of the motorcycle was exonerated from the liability. Hence, the appeal. 3. Respondents 1 to 3 are the driver, owner and insurer respectively of the offending bus. Respondents 4, 5 and 6 are the rider, owner, and insurer respectively of the motorcycle. The 3[rd] respondent, the insurer of the bus as well as the 6[th] respondent insurer of the motorcycle admitted the policy. A and B charges were filed against the 1[st] respondent driver of the bus as well as the 4[th] respondent the rider of the motorcycle, as the accident occurred due to the their contributory negligence. 4[th] respondent rider of the motorcycle was not having valid driving license at the time of the accident. So, the 6[th] respondent, the insurer of the ``` MACA. No. 1706 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** motorcycle was exonerated from its liability, and the 5[th] respondent the owner of the motorcycle was saddled with the liability to share 50% of the compensation. 4. Heard learned counsel for the appellants, and learned counsel for respondents 3 and 6. 5. Now this Court is called upon to find out whether there is any illegality, impropriety or irregularity in the impugned award warranting interference by this Court. 6. Learned counsel for the appellants would submit that the pillion rider in the motorcycle was a total stranger as far as the offending bus was concerned, and he was not liable if at all the 4[th] respondent was rash or negligent in riding the motorcycle. So, according to him, the learned Tribunal went wrong in exonerating the 6[th] respondent insurer, and also in burdening the 5[th] respondent with liability to pay 50% of the compensation to him. As far as the pillion rider in the motorcycle is concerned, the accident occurred when the offending bus dashed against the ``` MACA. No. 1706 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** motorcycle in which he was travelling, and so, he was entitled to claim compensation as against the owner, driver and insurer of the offending bus. Whereas in a claim made by the rider of the motorcycle, his negligence if any could have been taken into account. This Court finds force in the argument put forward from the part of the appellants that learned Tribunal went wrong while directing to share the liability to compensate the appellants, by respondents 5 and 6 equally. Since the deceased was a pillion rider in the motorcycle, he cannot be held responsible for the contributory negligence if any from the part of the rider of the motorcycle, which contributed towards the accident. So, as far as the claim of the appellants are concerned, the owner, driver and insurer of the offending bus are liable to compensate them. 7. Now coming to the quantum of compensation fixed by the Tribunal, learned counsel for the appellants would submit that the deceased was a 22 year old coolie, earning monthly income of Rs.6,000/-. But, learned Tribunal fixed his monthly income notionally @ Rs.2,500/-. Being a coolie, no documents were ``` MACA. No. 1706 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** produced by the appellants before the Tribunal to prove his income. But, going by the decision _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951],**_ as the accident was in the year 2005, his notional income could have been fixed @ Rs.5,000/-. Since he was aged below 40, 40% addition could have been given towards his future prospects. So, his monthly income could have been taken as Rs.7,000/-. Since he was a batchler, 50% ought to have been deducted towards his personal expenses. So, the balance income could have been Rs.3,500/-. Since, he was aged only 22, the multiplier applicable was 18. So, the compensation for loss of dependency could have been assessed as Rs.7,56,000/- (3,500 x 12 x 18). Learned Tribunal awarded only Rs.1,65,000/- towards loss of dependency. So, the appellants are entitled to get the balance amount of Rs.5,91,000/as enhanced compensation under the head loss of dependency. 8. Towards love and affection, learned Tribunal awarded Rs.5,000/-. Going by the decision _**National Insurance Company**_ ``` MACA. No. 1706 of 2010 ``` ``` ..7.. ``` _**Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680],**_ the appellants, who are the parents of the deceased are eligible to get Rs.40,000/- each which would come to Rs.80,000/-. After deducting Rs.5,000/- already awarded, they are entitled to get the balance amount of Rs.,75,000/-. 9. Under the head funeral expenses, learned Tribunal awarded only Rs.2,000/-. As per _**Pranay Sethi’s case cited supra,**_ they are eligible to get Rs.15,000/-. So, the they will get the balance amount of Rs.13,000/- under the head funeral expenses as enhancement. 10. Under the head loss of estate, learned Tribunal awarded only Rs.2,500/. As per _**Pranay Sethi’s case cited supra,**_ they are eligible to get Rs.15,000/-. So, they will get the balance amount of Rs.12,500/ as enhancement under the head loss of estate. 11. The deceased succumbed to the injuries on the same day. But learned Tribunal awarded Rs.5,000 towards pain and suffering. As per the decision _**United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur and Others (2021) 11 SCC**_ ``` MACA. No. 1706 of 2010 ``` ``` ..8.. ``` _**780,**_ since the deceased died on the date of accident itself, and the claim under the head, pain and suffering is a personal claim, the legal heirs are not entitled to get that amount. So, Rs.5,000/awarded by the Tribunal under the head pain and suffering is liable to be deducted. 12. The compensation awarded under all other heads seems to be reasonable, and hence it needs no modification. 13. The enhanced compensation awarded in this appeal is given in the table below:- |**_Head of claim_**|**_Amount_** **_awarded by_** **_the_** **_Tribunal_**|**_Amount_** **_awarded in_** **_appeal_**|**_Amount_** **_deducted in_** **_appeal_**|**_Difference to_** **_be drawn as_** **_enhanced_** **_compensation_**| |---|---|---|---|---| |**_Loss of dependency_**|**_1,65,000/-_**|**_7,56,000/-_**||**_5,91,000/-_**| |**_Love and affection_**|**_5,000/-_**|**_80,000/-_**||**_75,000/-_**| |**_Funeral expenses_**|**_2,000/-_**|**_15,000/-_**||**_13,000/-_**| |**_Loss of estate_**|**_2,500_**|**_15,000/-_**||**_12,500/-_**| |**_Pain and suffering_**|**_5,000/-_**|**_………._**|**_5,000/-_**|| |**_Total_**|||**_5,000/-_**|**_6,91,500/-_**| 14. In the result, the appellants are entitled to get enhanced compensation of Rs.6,86,500/- (6,91,500 – 5,000). Since the ``` MACA. No. 1706 of 2010 ``` **==> picture [31 x 7] intentionally omitted <==** appellants are the parents of the deceased, they will receive the enhanced compensation in equal share. 15. We have found that as far as the claim of the deceased is concerned, the 3[rd] respondent insurer of the offending bus is liable to compensate them in full measure. So, the 3[rd] respondent insurer is directed to deposit the enhanced compensation of Rs.6,86,500/- with 7% interest per annum from the date of petition till the date of deposit before the Motor Accidents Claims Tribunal, Manjeri within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse the award amount to the appellants 1 and 2 in equal share after deducting the liabilities, if any, towards Tax, balance court fee and legal benefit fund etc. 16. We have found that the entire liability to compensate the appellants is on the 3[rd] respondent insurer of the offending bus, So 50% of the amount awarded by the Tribunal, directed to be deposited by the 5[th] respondent, also is to be deposited by the 3[rd] respondent with 7% interest per annum from the date of petition ``` MACA. No. 1706 of 2010 ``` ``` ..10.. ``` till the date of deposit. The appeal is allowed to the extent as above and no order as to costs. ## **Sd/-** **SOPHY THOMAS** **JUDGE** RMV