Kunhabdulla and Fathima v ICICI Lombard (MACA No. 1232 of 2014)

**MACA NO. 1232 OF 2014** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944 MACA NO. 1232 OF 2014** **OPMV 1172/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA APPELLANT/S:** 1 KUNHABDULLA AGED 49 YEARS S/O. EBRAHIM, CHARAPARAMBIL, AMINA MANZIL, MEPPAYYUR AMSOM, KEEZHPPAYYUR DESOM, P.O.MEPPAYYUR, KOYILANDY THALUK-673524. 2 FATHIMA AGED 42 YEARS W/O. KUNHABDULLA, CHARAPARAMBIL, AMINA MANZIL, MEPPAYYUR AMSOM, KEEZHPPAYYUR DESOM, P.O.MEPPAYYUR, KOYILANDY THALUK-673524. BY ADV SRI.ZUBAIR PULIKKOOL ## **RESPONDENT/S:** M/S I.C.I.C.I LOMBARD ZENITH HOUSE ZENITH HOUSE, I KESHAVARAO KHADEMARG, MAHALAXMI, MUMBAI-400034. BY ADV R.AJITH KUMAR (128/84) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1232 OF 2014** -2- ## **JUDGMENT** (Dated this the 20th day of January 2023) The appellants/parents of the deceased Ansar Abdulla, are the petitioners in O.P (M.V) 1172 of 2008 on the files of Motor Accidents Claim Tribunal, Vatakara. 2. The brief facts of the case are as follows:-On 2609-2008 around 12. 55 p.m when the deceased was riding a motorcycle bearing register No ; K. L. 10 AA 4508 from Perinthalmanna to his Engineering college and when he reached at Thazhepoovalam, the lorry bearing registration No; K. L. 55 A 3261 driven by the 4[th] respondent in a rash and negligent manner, dashed against the motorcycle, as a result of which he sustained serious injuries and he was admitted in the Alshifa Hospital, Perinthalmanna and he succumbed to injuries on the same day. 3. According to the appellants, the lorry which hit on the motor cycle was insured with the 3[rd] respondent, where as the first respondent is the owner of the aforesaid lorry. Since the accident happened due to the rash and negligent driving of the lorry by the 4th respondent all the **MACA NO. 1232 OF 2014** -3- respondents are jointly and severally liable to compensate him. 4. The first respondent remained absent. As such he was set exparte, the 4th respondent was impleaded as supplemental respondent in this case. The 3[rd] respondent has contended in their written statement that the 4[th] respondent, who was driving the offending vehicle, was not having a valid and effective driving licence and badge as on the date of the accident. According to them the accident has happened due to the contributory negligence on the part of the deceased also. They admits the insurance policy of the offending vehicle at the relevant time of the accident. Whereas the vehicular documents relating to the offending vehicle were not valid. As such they are not to compensate the petitioners. The offending vehicle was driven by the 4[th] respondent by violating terms and conditions of the policy, as such the claim against them is not maintainable. The claimed on various heads are compensation highly excessive. 5. The Tribunal relying on Exts. A1 to A16, B1 - B2 and PW1 awarded total compensation of Rs.5,42,000/- at **MACA NO. 1232 OF 2014** the rate of 7.5 % per annum from the date of award till realisation with cost at proportionate rate. Aggrieved by the compensation awarded by the Tribunal on various heads, this appeal is filed. ## 6. Heard both sides. 7. The main contention raised by the learned counsel for the appellants is regarding the Notional Income taken. The income of Rs.4,000/- taken by the Tribunal, is on lower side. The deceased was an Engineering Student and he was very brilliant in his studies. As per **Meena Pawaia and others v. Ashraf Ali and Others** [ **2021 (6) KHC 596],** in the case of accident happened in the year 2012, notional income of a student is taken as Rs.10,000/-. Similarly, in an unreported decision of this court in Santhosh kumar's case (MACA 2987/2015) dated 2.7.2021, the notional income is taken as 16000/-. It was a case in which an Engineering student died in a road traffic accident and this court took the monthly income as Rs.16,000/- as the monthly income of the deceased for an accident which happened on 3.12.2010. In this case the accident is in the year of 2008. Considering the date of accident and also **MACA NO. 1232 OF 2014** -5- taking into account the increased prospect of job opportunities for Electronics and communication engineering students and other various aspects, this court is of the view that Rs.13,000/- would be a reasonable figure to be determined as monthly income of the deceased, instead of Rs.4000/- fixed by the Tribunal. The deceased was aged 21 years at the time of accident. Relying on the decision reported in **Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another** [(2009) 6 SCC 121] the correct multiplier applicable is 18, which the Tribunal has taken it correctly. The deceased being a bachelor, the half of the income is to be deducted towards personal and living expenses. In **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], the Constitution Bench held that, while determining the income, an addition of 40% of the income added towards future prospects and the same would come to Rs.18,200/-. So the compensation for loss of dependency can be worked out as Rs.18,200 x 12x18x1/2 = Rs.19,65,600/-. 8. Towards loss of consortium, no amount was awarded by the Tribunal. Appellants 1 and 2, being the parents of the deceased are entitled to Rs.40000/- each **MACA NO. 1232 OF 2014** -6- plus 10% increase in every 3 years as held in **Pranay Sethi** (Supra). Hence they are entitled for Rs.88,000/- on the said head. When the loss of consortium is granted no amount can be awarded under the head of Loss of Love & Affection. Hence the amount of Rs.15,000/- awarded by the Tribunal under the head of love and affection is set aside. 9. Towards other conventional heads including Loss of estate and for funeral expenses Tribunal has awarded Rs. Rs.5,000/- each. As per **Pranay Sethi** (Supra) they are entitled for Rs.15,000/- each for above two heads plus 10 % increase which would come to Rs.16,500 each under loss of estate and funeral expenses. 10. Since the compensation under the loss of dependency is granted, no separate award of compensation under the head of shortened expectation of life is need to be granted. Accordingly, the compensation granted under the head of shortened expectation of life is set aside. **MACA NO. 1232 OF 2014** -7- 11. Relying on dictum laid down in **Jyni v. Raphel P.T** [2016 (2) KHC 870], it was held that a conventional amount within a range of Rs.5,000/- to Rs.15,000/- under the head of pain and sufferings can be awarded in case of death also. Hence, an amount of Rs. 5,000/- is awarded under the head to the appellants. Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl.<br>No.|The compensation claimed<br>under different heads|Amt. Awarded<br>by Tribunal<br>(Rs.)|Amt. Enhanced<br>in appeal (Rs.)| |---|---|---|---| |1.|Funeral expenses|5,000|16,500| |2.|Loss of estate|5,000|16,500| |3.|Loss of love and affection|15,000|--| |4.|Pain and suffering|–|5,000| |5.|Shortened expectation of<br>life|75,000|--| |6.|Loss of dependency|4,32,000|19,65,600| **MACA NO. 1232 OF 2014** ||-8-|-8-|| |---|---|---|---| |7.|Loss of consortium|-|88,000| ||TOTAL|5,32,000|20,91,600| ||Amount enhanced – 20,91,600-5,32,000=**Rs. 15,59,600/-**||| In the result, the appeal is allowed and the appellants are entitled to an enhanced compensation of Rs.15,59,600/(Rupees fifteen lakh fifty nine thousand and six hundred only) with interest at the rate of 7.5% from the date of petition till the date of deposit. All other findings entered by the Tribunal stand confirmed. 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 **MACA NO. 1232 OF 2014** -9within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. It is made clear that the appellants will not be entitled for interest for a period of 142 days, being the delay in filing the appeal, as per order of this court dated 4.10.2021. It is further made clear that the appellants/claimants will have to pay court fee for the total amount awarded, which will be recovered by the Tribunal before disbursing the amount deposited. Sd/- **BASANT BALAJI, JUDGE** _dl/_