MACA 1129 of 2014: Suharabi and Others v. Senthil Raj and Ibrahim and National Insurance Company Ltd

MACA 1129/2014 1 2025:KER:24271 **==> picture [58 x 58] intentionally omitted <==** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **THURSDAY, THE 27[TH] DAY OF FEBRUARY 2025 / 8TH PHALGUNA, 1946** **MACA NO. 1129 OF 2014** **AGAINST THE AWARD DATED 27.07.2012 IN OPMV NO.933 OF 2011 OF** **MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANTS/CLAIMANTS IN OPMV** - **1 SUHARABI, AGED 37 YEARS W/O LATE KABEER, CHATHAKNADI KAMBARAN HOUSE, KANNAMANGALAM P.O, KM(WEST), THIRURANGADI TALUK, MALAPPURAM DISTRICT** - **2 YASIRA THASNI, AGED 18 YEARS D/O LATE KABEER, CHATHAKNADI KAMBARAN HOUSE, KANNAMANGALAM P.O, KM(WEST), THIRURANGADI TALUK, MALAPPURAM DISTRICT** - **3 YASSAR ARAFATH (MINOR),AGED 14 YEARS S/O LATE KABEER, CHATHAKNADI KAMBARAN HOUSE, KANNAMANGALAM P.O, KM(WEST), THIRURANGADI TALUK, MALAPPURAM DISTRICT** - **4 FALUL FARISHNA (MINOR),AGED 12 YEARS D/O LATE KABEER, CHATHAKNADI KAMBARAN HOUSE, KANNAMANGALAM P.O, KM(WEST), THIRURANGADI TALUK, MALAPPURAM DISTRICT** - **5 THABSHEERA (MINOR), AGED 7 YEARS D/O LATE KABEER, CHATHAKNADI KAMBARAN HOUSE, KANNAMANGALAM P.O, KM(WEST), THIRURANGADI TALUK, MALAPPURAM DISTRICT** - **6 MOIDEENKUTTY, AGED 70 YEARS F/O LATE KABEER, CHATHAKNADI KAMBARAN HOUSE, KANNAMANGALAM P.O, KM(WEST), THIRURANGADI TALUK, MALAPPURAM DISTRICT** 2025:KER:24271 MACA NO. 1129 OF 2014 2 **==> picture [58 x 58] intentionally omitted <==** - **7 AMINAKUITTY, AGED 61 YEARS M/O LATE KABEER, CHATHAKNADI KAMBARAN HOUSE, KANNAMANGALAM P.O, KM(WEST), THIRURANGADI TALUK, MALAPPURAM DISTRICT** **[MINOR APPELLANTS 3 TO 5 ARE REPRESENTED BY THEIR MOTHER, THE 1ST APPELLANT]** **BY ADVS. SRI.P.M.MOHAMMED SHIRAZ SMT.G.R.MANJU** ## **RESPONDENTS/RESPONDENTS IN OPMV** - **1 SENTHIL RAJ,AGED 30 YEARS S/O SELVARAJ, CAH MANZIL, KM WEST, KANNAMANGALAM P.O, MALAPPURAM 676318** - **2 IBRAHIM, S/O MOHAMMED,KAAMPRAN HOUSE, A.R NAGAR, KANNAMANGALAM P.O, MALAPPURAM 676318** - **3 M/S NATIONAL INSURANCE COMPANY LTD 2ND FLOOR KORAMBAYIL ARCADE, PANDIKKAD ROAD, MANJERI, MALAPPURAM 676121** **BY ADV SRI.S.K.AJAY KUMAR- SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 1129 OF 2014 3 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:24271 ## **J U D G M E N T** Dated this the 27[th] day of February, 2025 The petitioners in O.P.(M.V.) No.933/ 2011 on the file of the Motor Accident Claims Tribunal, Kozhikode, are the appellants. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal) 2. The O.P. was filed under under Sections 140 and 166 of the Motor Vehicles Act, 1988, by the wife, children and parents of the deceased Kabeer, who died in a motor vehicle accident that occurred on 09.06.2010. According to them, on 09.06.2010, while the deceased was riding pillion on a motorcycle driven by the 1[st] respondent, the motorcycle hit on a devider and overturned. As a result of which he fell down and sustained serious injuries and later on he succumbed to the injuries, on 10.06.2010, while under treatment. 3. The 1[st] respondent is the rider, the 2[nd] respondent is the owner and 3[rd] respondent is the insurer of the offending vehicle. According to the petitioners, the accident occurred due to the negligence of the rider of the offending vehicle. The quantum of compensation claimed in the O.P. was Rs.22,59,000/- 4. The insurance company filed a written statement, admitting the MACA NO. 1129 OF 2014 4 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:24271 accident as well as policy, but disputing the negligence on the part of the rider of the offending vehicle. 5. The evidence in the case consists of the documentary evidence Exts.A1 to A8. No evidence was adduced by the respondents. 6. After evaluating the evidence on record, the Tribunal found negligence on the part of the driver of the offending vehicle, awarded a total compensation of Rs. 5,94,100/- and directed the insurer to pay the same. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioners preferred this appeal. 8. Now the point that arises for consideration is the following: _Whether the quantum of compensation awarded by the Tribunal is just and reasonable?_ 9. Heard Sri.P.M Mohammad Shiraz, the learned Counsel appearing for the petitioners/appellants, and Sri.S.K Ajay, the learned Standing Counsel for the 3[rd] respondent. 10. The Point: In this case the accident as well as valid policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioners is regarding the income of the deceased as fixed by the Tribunal. According to him, the deceased was working as Cook in Saudia Arabia earning Rs.20,000/- per month, but the Tribunal fixed his MACA NO. 1129 OF 2014 5 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:24271 monthly income at Rs.4000/-.The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. 11. He has relied upon Exts. A6 to A8, passport to substantiate his contention that the deceased was working abroad. From Exts.A6 to A8 at the most it can be seen that the deceased was working abroad. However, it is not clear from those documents as to what was his job and what was his income. 12. The learned counsel for the petitioners produced the print out of referral wages for 2014 downloaded from the Embassy of India Riyadh, to substantiate his contention that during the year 2014, the wages of a cook was 1,700/- Saudi Riyad. However, as I have already noted above, the petitioners could not prove the job of the deceased and as such the above printout cannot be used for any purpose. 13. It is true that the petitioners could not prove the income of the deceased, as claimed in the OP. However from Exts.A6 to 8 it is proved that the deceased was in abroad for about 7 years. As per the dictum laid down by the Hon’ble Supreme Court in the decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.**_ [2011 (13) SCC 236], the notional income of a coolie, during the year 2010 will come to Rs.7500/-. Therefore, considering the fact that the deceased was a Cook by profession, and was in abroad, his notional income is fixed at Rs.10,000/-, for MACA NO. 1129 OF 2014 6 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:24271 the purpose of computing the loss of dependency. 14. On the date of accident, the deceased was aged 44 years. Therefore, 25% of the monthly income is liable to be added towards future prospects, as held in the decision in **National Insurance Co.Ltd v Pranay Sethi** [(2017) 16 SCC 680] and the multiplier to be applied is 14, as held in **Sarla Verma v. Delhi Transport Corporation,** (2009) 6 SCC 121. Since the deceased was married who left behind 7 dependents, towards personal and living expense, 1/5 of the income is liable to be deducted, as held in **Sarla Verma** (supra). In the above circumstances, the loss of dependency will come to Rs.16,80,000/- 15. The Tribunal has awarded Rs.10,000/- towards loss of estate, Rs.5,000/- towards funeral expenses, Rs.10,000/- towards loss of consortium and Rs.20,000/- towards love and affection. In the light of the decision in **Pranay Sethi** (supra), the appellants are entitled to get a consolidated sum of Rs.15,000/- towards loss of estate, Rs.15,000/- towards funeral expenses, and the dependents are entitled to get a sum of Rs.40,000/- each towards loss of consortium, with an increase of 10% in every three years. Therefore, towards loss of estate and funeral expense they are entitled to get a sum of Rs.18,150/each. Towards loss of consortium, petitioners together are entitled to get a sum of Rs.3,38,800/- (48,400 x7). MACA NO. 1129 OF 2014 7 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:24271 16. Since compensation for loss of consortium was given, further compensation for love and affection cannot be granted, in view of the decision in **New India Assurance Company Ltd. v. Somwati and Others,** (2020)9 SCC 644. Therefore, the compensation awarded towards love and affection is to be deducted. 17. Towards the head ‘pain and sufferings’, the Tribunal has awarded Rs.10,000/-, which according to the learned counsel for the petitioners, is on the lower side. The deceased died in this case on the next day after the accident. In the above circumstances, I hold that the compensation awarded towards pain and suffering is on the lower side, and hence, it is enhanced to Rs.25,000/- 18. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable. 19. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.20,81,600/-, as modified and recalculated above and given in the table below, for easy reference: |Sl.<br>No.|Head of Claim|Amount awarded by<br>Tribunal (in Rs.)|Amount Awarded in<br>Appeal (in Rs.)| |---|---|---|---| |1|Transport to hospital|Rs.1000/-|Rs.1000/-| |2|Damage to clothings and other<br>articles|Rs.500/-|Rs.500/-| MACA NO. 1129 OF 2014 8 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:24271 ||||2025:KER:2427| |---|---|---|---| |3|Funeral expenses|Rs.5,000/-|Rs.18150/-| |4|Pain and suffering|Rs.10,000/-|Rs.25,000/-| |5|Loss of estate|Rs.10,000/-|Rs.18150/-| |6|Loss of love and affection|Rs.20,000/-|NIL| |7|Loss of consortium|Rs.10,000/-|Rs.3,38,800/-| |8|Loss of dependency|Rs.5,37,600/-|Rs.16,80,000/-| ||**Total**|**Rs.5,94,100/-**|**Rs.20,81,600/-**| ||Enhanced|Rs.14,87,500/-|| 20. In the result, this Appeal is allowed in part, and the 3[rd] respondent is directed to deposit a total sum of Rs.20,81,600/- (Rupees Twenty lakhs eighty one thousand six hundred Only), less the amount already deposited, if any, along with interest @ 8% per annum from the date of the petition till realisation/deposit, excluding interest for a period of 559 days, the period of delay in filing the appeal, with proportionate costs, within a period of two months from today. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioners, in the ratio fixed by the Tribunal, excluding court fee payable, if any, without delay, as per rules. Sd/- ## **C. PRATHEEP KUMAR, JUDGE** vnk/-