High Court of KeralaSingle Judge2022-07-01Appeal allowed; enhanced compensation; loss of ...

Ayisha and others v. Sivanandan K.C. and National Insurance Company Ltd.

Case / Petition Number:MACA NO. 2042 OF 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Basant Balaji J.
Judgment Date: 2022-07-01
Court Decision / Holding: The appeal is allowed. Enhancements are made to the award: Loss of dependency Rs.5,40,000 replaced with Rs.14,34,375; Loss of consortium Rs.1,00,000 replaced with Rs.2,20,000; Loss of estate Rs.8,000 replaced with Rs.16,500; Love and affection head set aside. Total enhanced amount Rs.9,64,375; interest on enhanced amounts at 8% from the date of petition; any already paid amounts to be set off; claimants to furnish bank details within one month for NEFT/RTGS payment within one month thereafter; if bank details are not furnished, no interest shall run on the enhanced amount after the period stipulated.
Final Disposition: Appeal allowed; enhanced compensation; loss of love and affection head set aside; NEFT/RTGS payment with 8% interest on enhanced amount; bank details to be provided within one month.

Parties to the Case

Appellants / Petitioners

Ayisha (W/o Late Sakkeer Hussain)
Ajisha (Minor)
Shahala (Minor)
Ayishabi
Fathima Dilna (Minor)

Respondents

Sivanandan K.C., S/O Moothoran
National Insurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V.S. Chandrasekharan
• Sri. M.V. Das

Counsels for Respondents

• Smt.Raji T. Bhaskar-R2

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal arising from MACA No.2042 of 2014, challenging the Motor Accidents Claims Tribunal, Kozhikode award in O.P.(MV) No.784/2013 for the death of Sakkeer Hussain. The appellants are the wife Ayisha, two minors Ajisha and Shahala, another applicant Ayishabi, and minor Fathima Dilna, represented by their mother/guardian Ayisha, with National Insurance Company Ltd. and Sivanandan K.C. as respondents. The accident occurred on 29.10.2012 when the deceased, aged about 40, riding a motorcycle, was hit by a stage carriage bus, resulting in his death. The Tribunal held the bus driver negligent and awarded Rs.7,25,000 in total compensation. The appellants challenge this quantum, arguing that the deceased’s income was understated: relying on Ramachandrappa v. Manager, Royal Sundaram, the monthly income for a 2012 accident should be about Rs.8,500; with 25% future prospects, Rs.10,625 per month. This yields a dependency loss of Rs.14,34,375, far higher than the Tribunal’s Rs.5,40,000. They also request Rs.16,500 for funeral expenses (per Pranay Sethi’s cap of Rs.15,000 plus escalation), Rs.16,500 for loss of estate, and Rs.2,20,000 for loss of consortium for five claimants (per Magma General Insurance Co.). The court sets aside the love-and-affection head, awards enhanced sums, and allows interest at 8% on enhanced amounts with NEFT/RTGS transfer within a month, subject to account details and no interest on delayed enhanced amounts beyond the stipulated period.

Provisions of Law Cited

Motor Vehicles Act, Section 140Motor Vehicles Act, Section 166

Legal Doctrines & Maxims

25% future prospects (Ramachandrappa)
Cap on funeral expenses and 10% escalation every three years (Pranay Sethi)
Loss of consortium guidance for wife, children and mother (Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram & Others)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend the Tribunal erred in quantifying the claim. Relying on Ramachandrappa, the deceased’s monthly income for 2012 should be Rs.8,500; with 25% future prospects, Rs.10,625 per month. Consequently, the dependency loss should be Rs.10,625 x 12 x 15 x 3/4 = Rs.14,34,375, far higher than the Tribunal’s Rs.5,40,000. Funeral expenses must follow National Insurance v. Pranay Sethi, i.e., Rs.15,000 with 10% escalation every three years, translating to Rs.16,500; Loss of estate should similarly be escalated to Rs.16,500. For loss of consortium, Magma General Insurance Co. v. Nanu Ram mandates Rs.40,000 each for wife, five claimants (including mother and four others), with 10% escalation to Rs.44,000 per person, totaling Rs.2,20,000. The tribunal’s awards for love and affection and existing loss of consortium are adjusted accordingly. The appeal also notes a 33‑day delay in filing; condonation was allowed but enhanced compensation should not bear interest for those 33 days. The court is urged to enhance compensation and direct NEFT/RTGS payments within a month, with proper account details provided. respondents contend there was no negligence by the bus driver and that the deceased’s own negligence caused the accident; the compensation prayed for is exorbitant and the petition should be dismissed.

Contentions of Respondents

The respondents contend that the bus driver (2nd respondent) was not negligent and that the accident occurred due to the deceased’s own conduct. They argue that the compensation claimed is exorbitant in light of the evidence and the Tribunal’s findings; hence, the petition should be dismissed or the award reduced accordingly.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	(2011) 13 SCC 236	Positive	Used to justify 25% future prospects and higher income for the deceased.
National Insurance Company Ltd v Pranay Sethi	2017 (16) SCC 680	Positive	Used to cap funeral expenses (Rs.15,000) with escalation; and apply norms from Pranay Sethi to enhanced claims.
Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others	(2018) 18 SCC 130	Positive	Used to award loss of consortium to wife, children and mother with escalations.

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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 MR.JUSTICE BASANT BALAJI`** ``` FRIDAY, THE 1[ST] DAY OF JULY 2022 / 10TH ASHADHA, 1944 ``` ## **`MACA NO. 2042 OF 2014`** ``` OPMV 784/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1AYISHA AGED 34 YEARS W/O. LATE SAKKEER HUSSAIN 2AJISHA MINOR AGED 17 YEARS D.O.B. 24-3-96 3SHAHALA MINOR AGED 15 YEARS D.O.B. 16-10-97 ``` ``` ALL ARE RESIDING AT KOOTHIL HOUSE, EDAKKADDPPURAM P.O., TANUR, MALAPPURAM-676302 ``` ``` 4AYISHABI AGED 55 YEARS W/O. MOIDEENKOYA, ARESIDING AT KALYANATHOPPU PARAMBU, KOZHIKODE-673012. ``` ``` 5FATHIMA DILNA MINOR, D.O.B. 27-4-2013 D/O.LATE SAKEER HUSIIAN ``` ``` MINOR APPEALLNTS/PETITIONERS ARE REPRESENTED BY THEIR MOTHER/LEGAL GUARDIAN AYISHA. ``` ``` BY ADVS. SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS ``` ``` MACA NO. 2042 OF 2014 ``` ``` 2 ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 SIVANANDAN K.C. S/O. MOOTHORAN, AGE NOT KNOWN, RESIDING AT KOMATTUCHALIL HOUSE, PO, KONOTTU, VIA, KUNNAMANGALAM, KOZHIKODE-673571.` - `2 NATIONAL INSURANCE COMPANY LTD. 2ND FLOOR, NOOR COMPLEX, P.B. NO. 811, NEAR SBT, ARAYEDATHUPALAM, MAVOOR ROAD, KOZHIKODE-673661.` ``` BY ADV SMT.RAJI T.BHASKAR-R2 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2042 OF 2014 ``` ``` 3 ``` ## **JUDGMENT** The wife and minor children along with the mother of the deceased have filed this appeal challenging the amount of compensation awarded in the O.P.(M.V) No.784/2013 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The claim was filed under Sections 140 and 166 of the Motor Vehicles Act of the death of one Sakkeer Hussain. 2. On 29.10.2012, at about 10.40.A.M, while the deceased was riding a motor cycle from Kozhikode to Kakkodi, he was hit down by a stage carriage bus causing serious injuries. He was immediately taken to Medical College Hospital, Kozhikode where he succumbed to the injuries. The accident happened due to negligence of driving on the side of the 2[nd] respondent who was driving the bus at the relevant time. 3. Respondents 1 to 3 entered appearance and filed a written statement. According to them, there was no negligence on the side of the 2[nd] respondent in causing the accident. ``` MACA NO. 2042 OF 2014 ``` ``` 4 ``` Accident occurred due to the negligence on the part of the deceased himself. The amount of compensation claimed is exorbitant. On these grounds the respondents prays for dismissal of the petition. 4. The Tribunal awarded a total compensation of Rs.7,25,000/- relying on Exts.A1 to A6. Aggrieved by the said award the claimants have filed this appeal. 5. The learned counsel for the appellants submits that the deceased was aged 40 years and the Tribunal has taken the monthly income as Rs.4,000/-. Going by the decision reported in **Ramachandrappa v. Manager, Royal Sundaram Alliance** **Insurance Company Limited** [(2011) 13 SCC 236] the monthly income for an accident which happened in the year 2012 should have been taken as Rs.8,500/-. Moreover, the deceased was aged 40 years at the time of death. So considering his age 25% future prospects should also be added to the income. Thus, the monthly income would come to Rs.8,500x25% which come to Rs.10,625/- per month. Taking the ``` MACA NO. 2042 OF 2014 ``` ``` 5 ``` monthly income as Rs.10,625/-, the loss of dependency can be calculated as Rs.10625x12x15x3/4 which comes to Rs.14,34,375/-. The Tribunal has already awarded amount of Rs.5,40,000/-. As far as the funeral expense is concerned, the Tribunal has awarded Rs.25,000/-. Going by the decision reported in **National Insurance Company Ltd** . v. **Pranay Sethi** [2017 (16) SCC 680], the maximum amount that can be awarded as funeral expense is Rs.15,000 + 10% escalation every three year. So the amount awarded by the Tribunal is more and it is brought down to Rs.16,500/-. 6. As far as loss of estate is concerned, the Tribunal has awarded only Rs.8,000/- which is increased to Rs.15,000 + 10% escalation for 3 years which will be Rs.16,500/-. 7. As far as loss of consortium is concerned, the claimants are wife and three minor children along with the mother of the deceased. As per the decision in **Magma General Insurance Co.Ltd.** v. **Nanu Ram Alias Chuhru Ram & Others** [(2018) 18 SCC 130] the wife and children as well as the mother are ``` MACA NO. 2042 OF 2014 ``` ``` 6 ``` entitled to Rs.40,000/- each as compensation for loss of consortium. They are also entitled to 10% increase every three years as per the decision reported in **Pranay Sethi** (supra) and thus, the 10% increase would come to Rs.44,000/- for each person. So the total compensation for loss of consortium will be Rs.44,000x5 =Rs.2,20,000/-. The Tribunal has already awarded a sum of Rs.1 lakh as loss of consortium and on the head loss of love and affection another Rs.50,000/- was awarded. When loss of consortium is granted, loss of love and affection cannot be awarded. Hence, the compensation for loss of affection is set aside. As far as the loss of consortium is concerned, the Tribunal has awarded Rs.1,00,000/-. So the appellants are entitled to Rs.1,20,000/- more. 8. This appeal was filed with the delay of 33 days. At the time of condoning the delay in C.M.Application No.1/2014 an order was passed wherein it was stated that if ultimately, the appeal is allowed and compensation is enhanced, the petitioner would be dis-entitled for interest for a period of 33 days. Hence, ``` MACA NO. 2042 OF 2014 ``` ``` 7 ``` the enhanced compensation will not carry interest for the above 33 days delay. In the result, the appeal is allowed. Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl. No.|Head of Claim|Amt. Awarded byTribunal(Rs.)|Amt. Enhanced in appeal(Rs.)| |---|---|---|---| |1|Loss of dependency|5,40,000/-|14,34,375| |2.|Loss of consortium|1,00,000/-|2,20,000/-| |3.|Loss of estate|8,000/-|16,500/-| ||Total|6,48,000/-|16,70,875/-| ||Amount enhanced 16,70,875 – 6,48,000**=10,22,875/-**||| ||**Less**||| ||Love and afection||50,000/- (order set aside)| ||Funeral Expense||8,500/- [25,000-16,500]| ||**TOTAL**(Deductions)||**58,500/-**| ||Amount enhanced:**10,22,875 – 58,500=9,64,375/-**||| In the result, the appeal is allowed, the awarding of amount under the head loss of love and affection is set aside. The ``` MACA NO. 2042 OF 2014 ``` ``` 8 ``` Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 8% from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. **sd/-** **BASANT BALAJI JUDGE** nak