Ayisha C.P. and others v. Jalal @ Jaleel and ors

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` MONDAY, THE 20[TH] DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944 ``` ## `MACA NO. 1223 OF 2014` ``` [AGAINST THE AWARD DATED 08.04.2013 IN OP(MV)NO.1371/2012 ON THE FILES OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE] ``` ## `APPELLANTS/PETITIONERS:` - `1 AYISHA C.P, W/O. (LATE) ABDUL RASHEED, AGED 34 YEARS, RESIDING AT C.P. HOUSE, 423, 10, PUTHOOR, PERUMANNA PANCHAYATH, KOZHIKODE.` - `2 MUHAMMED RIHAM, AGED 18 YEARS, D.O.B. 25.3.1996.` - `3 BILAL RASHEED (MINOR), S/O.(LATE) ABDUL RASHEED, AGED 16 YEARS, D.O.B:02.10.1998.` - `4 FATHIMA RASHEED (MINOR), D/O.(LATE) ABDUL RASHEED, AGED 12 YEARS, D.O.B: 11.04.2002,` ``` MINORS REPRESENTED BY THEIR MOTHER/NEXT FRIEND AYISHA C.P., RESIDING AT NAZEEMA MANZIL HOUSE, CHERIYALINGAL PARAMBU, M.M. ALIROAD, (P.O.) CHALAPPURAM, KOZHIKODE. ``` - `5 T.K.AYISHA, W/O. LATE KUNHUMUHAMMED, AGED 67 YEARS, RESIDING AT 1384, CHERIALINGAL PARAMBU, KOZHIKODE.` ``` BY ADVS. SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN ``` ## `RESPONDENTS/RESPONDENTS:` - `1 JALAL @ JALEEL, S/O. SAIDALL, AGE NOT KNOWN, RESIDING AT 6/576, (8/674), MOONAKKAL HOUSE, (PO) KANNOTH, VENGERI, KODENCHERY, KOZHIKODE-673002.` - `2 NOUSDHAD.R.K, S/O. MUHAMMED, AGED 36 YEARS, RESIDING AT APPORAMMAL HOUSE,(PO), KAITHAPOYIL, THAMARASSERY, KOZHIKODE-673001.` ``` MACA NO. 1223 OF 2014 ``` ``` -2- ``` ``` 3THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, MAVOOR ROAD, KINGSWAY BUILDING, 1ST FLOOR, MAVOOR ROAD JUNCTION, KOZHIKODE-673006. ``` ``` BY ADVS.SRI.LUIZ GODWIN DCOUTH SRI.VPK.PANICKER, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1223 OF 2014 ``` ``` -3- ``` ## `JUDGMENT` ``` The legal heirs of Abdul Rasheed - who unfortunately died in a road accident on 20.01.2012, caused on account of the rash and ``` ``` negligent riding of the 1[st] respondent - have approached this Court through this Appeal, being aggrievedbytheallegedlyinadequate ``` ``` compensation awarded by the Motor Accidents Claims Tribunal, Kozhikode (‘Tribunal’, for ``` ``` short) in OP(MV) No.1371/2012. ``` ``` 2.The appellants say that Abdul Rasheed ``` ``` was fatally knocked down while riding his ``` ``` scooter by the offending vehicle and hence that they were left without any other option, but to move the Tribunal, seeking compensation for his ``` ``` death, of an amount of Rs.10,00,000/-; but which has been allowed only to the extent of Rs.6,27,000/-. They assert that this is ``` ``` primarily because the learned Tribunal erred in ``` ``` MACA NO. 1223 OF 2014 ``` ``` -4- ``` ``` adopting the notional income of the deceased to a mere Rs.4,500/-; while, the claim made was for Rs.12,000/- per month. They assert that, had the proper notional income been adopted, the compensation under the head “Loss of Dependency” would have been much higher; and that denial of compensation for “Loss of Consortium” to each of the appellants at the rate of Rs.40,000/-, is also illegal. ``` ``` – 3.Sri.V.S.Chandrasekharanlearned ``` ``` counsel for the appellants, further predicated that the compensation awarded by the Tribunal under the heads “Loss of Estate” and “Funeral Expenses” is exiguous because, going by National Insurance Company Ltd. v. Pranay Sethi [2017 (4) ``` ``` KLT 662 (SC)], Rs.15,000/- each ought to have been awarded. He thus prayed that this Appeal be allowed to the extent to which the impugned Award is assailed. ``` ``` MACA NO. 1223 OF 2014 ``` ``` -5- ``` ``` 4.Sri.V.P.K.Panicker – learned Standing ``` ``` Counsel for the Oriental Insurance Company ``` ``` Limited (‘Insurance Company’, for short), on the contrary, submitted that the compensation awarded by the Tribunal is without error; and therefore, prayed that this Appeal be dismissed. He, however, conceded, to a pointed question ``` ``` from this Court, that, as per Ramachandrappa v. ``` ``` Manager, Royal Sundaram Alliance Insurance ``` ``` Company Ltd. [(2011) 13 SCC 236], the Hon’ble Supreme Court has standardized the notional income in the case of a person with ``` ``` unascertainable income in the year 2012, to be ``` ``` Rs.8,500/-. ``` ``` 5.I have considered the afore rival ``` ``` submissions, on the touchstone of 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 ``` ``` MACA NO. 1223 OF 2014 ``` ``` -6- ``` ``` be acted upon by this Court without dispute. ``` ``` 6.Before I proceed, I must record that, even though summons have been validly served on respondents 1 and 2, they have chosen not to be present in person or to be represented through counsel. I, therefore, am compelled to dispose ``` ``` of this Appeal in their absence. ``` ``` 7.As is luculent from the afore narrative, ``` ``` the primary controversy between the parties is as to the notional income which ought to have ``` ``` been adopted in favour of late Abdul Rasheed. ``` ``` The claimants say that he was working as a ``` ``` “Fruit Vendor”, making Rs.10,000/- per month. ``` ``` However, these statements cannot be accepted ``` ``` without corroboration; and in the absence of the ``` ``` same, this Court is forced to go by the standardization postulated by the Hon’ble Supreme Court inRamachandrappa (supra). That said, since the deceased was aged only 42 years ``` ``` MACA NO. 1223 OF 2014 ``` ``` -7- ``` ``` at the time of the accident, his notional income also has to be added with 25%, towards future prospects. ``` ``` 8.Coming to the grant of compensation ``` ``` under the head “Loss of Consortium”, the learned Tribunal has wholly erred, because it has granted only Rs.10,000/-; and that too, to the ``` ``` 1[st] appellant, but denying it to all others. ``` ``` There is no reason why this should have been done, when the appellants are the wife, minor ``` ``` children and mother of the deceased. As per ``` ``` Pranay Sethi(supra), a minimum amount of Rs.40,000/- each under the head “Loss of ``` ``` Consortium” ought to have been granted to the ``` ``` appellants. ``` ``` 9.As far as the heads “Funeral Expenses” and “Loss of Estate” are concerned, again Pranay Sethi(supra) renders the position clear that Rs.15,000/- each ought to be granted. ``` ``` MACA NO. 1223 OF 2014 ``` **==> picture [22 x 9] intentionally omitted <==** ``` 10.Of course, when I hold so, it must be borne in mind thatUnited India Insurance ``` ``` Company Ltd. v. Satinder Kaur @ Satwinder Kaur ``` ``` [(2021) 11 SCC 780] declares unequivocally that, ``` ``` when compensation for “Loss of Dependency” is granted, amount under the head “Loss of Love and Affection” ought not to be offered. ``` ``` Resultantly, this Appeal is allowed in the following manner: ``` ``` (a)The compensation under the head “Loss of ``` ``` Dependency” is revised to Rs.13,38,750/- (Rupees thirteen lakhs thirty eight thousand seven hundred and fifty only), adopting the notional income of the deceased to be Rs.8,500/-, along with 25% future prospects being added to it; and deducting 25% of it, as personal expenses. ``` **==> picture [377 x 12] intentionally omitted <==** ``` “Funeral Expenses” and “Loss of Estate” is enhanced to Rs.15,000/- (Rupees fifteen thousand ``` ``` MACA NO. 1223 OF 2014 ``` **==> picture [22 x 9] intentionally omitted <==** ``` only) each, from Rs.8,000/- and Rs.10,000/- ``` ``` respectively, as awarded by the Tribunal. ``` ``` (c)The compensation under the head “Loss of Consortium” is enhanced to Rs.2,00,000/- (Rupees two lakhs only), from Rs.10,000/-, now offered by the Tribunal. ``` ``` (d)The compensation under the head “Loss of ``` ``` Love and Affection”, granted by the Tribunal is deleted. ``` ``` (e)Needless to say, all the holdings of the ``` ``` Tribunal, except to the extent above, including ``` ``` the grant of liberty by it to the Insurance Company to recover the amounts from the 1[st] respondent, are left unaltered. ``` ``` Consequently, the appellants will be at full liberty to recover the compensation, as enhanced by this Court from the Insurance Company, along with interest at the rate of 7.5% (modifying the rate of interest 8% as awarded by the Tribunal) ``` ``` MACA NO. 1223 OF 2014 ``` **==> picture [30 x 9] intentionally omitted <==** ``` from the date of claim until it is recovered. They will also be entitled to proportionate cost on the enhanced amount as ordered by the Tribunal. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ```