Muhammed and Others v. Firoz and Shriram General Insurance Co. Ltd.

# **`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. 2551 OF 2016`** ## **`AGAINST THE ORDER DATED 29.02.2016 IN OP(MV) NO.1851/2014 OF MOTOR`** ## **`ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE`** ## **`APPELLANTS:`** - `1 MUHAMMED, AGED 62 YEARS S/O. KUNHIMOIDEEN` - `2 RAMLA, AGED 50 YEARS W/O. MUHAMMED` - `3 MUHASHIRA, W/O. MUHAVIYA, AGED 27 YEARS.` - `4 MURSHAD, S/O. MUHAMMED, AGED 25 YEARS` ``` ALL RESIDING AT PANCHARANTE PURACKAL HOUSE, CHALIYAM, KADALUNDI, KOZHIKODE. ``` ``` BY ADV SMT.K.V.RESHMI ``` ## **`RESPONDENTS:`** ``` 1FIROZ, S/O. MUHAMMED, AGED 29 YEARS, POOTHARAMBATH (H), ANANGADI, KADALUNDI NAGARAM, MALAPPURAM, PIN-676505. ``` ``` 2SHRIRAM GENERAL INSURANCE CO. LTD. E-8, RIICO INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTHAN, REPRESENTED BY ITS MANAGER, PIN-755001. ``` ``` BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.02.2023, ALONG WITH MACA.3285/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2551 & 3285/16 2 # **`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. 3285 OF 2016 ``` ``` AGAINST THE AWARD DATED 29.02.2016 IN OPMV 1851/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ## **`APPELLANT:`** ``` SHRIRAM GENERAL INSURANCE COMPANY LIMITED JAIPUR, NOW REPRESENTED BY ITS LEGAL OFFICER, AZAD TOWER, AMMENCOIL CROSS ROAD, KOCHI-35. ``` ``` BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS:`** - `1 MUHAMMED, S/O.KUNHIMOIDEEN, PANCHARANTE PURAKKAL HOUSE,CHALIYAM, KADALUNDI, KOZHIKODE, PIN-673 301.` - `2 RAMLA, W/O.MUHAMMED, PANCHARANTE PURAKKAL HOUSE,CHALIYAM, KADALUNDI, KOZHIKODE, PIN-673 301.` - `3 MUHASHIRA, W/O.MUHAVIYA, PANCHARANTE PURAKKAL HOUSE,CHALIYAM, KADALUNDI, KOZHIKODE, PIN-673 301.` - `4 MURSHAD, S/O.MUHAMMED, PANCHARANTE PURAKKAL HOUSE,CHALIYAM, KADALUNDI, KOZHIKODE, PIN-673 301.` ``` BY ADV SMT.K.V.RESHMI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.02.2023, ALONG WITH MACA.2551/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2551 & 3285/16 3 ## **`JUDGMENT`** ## **`[MACA Nos.2551/2016, 3285/2016]`** These Appeals have been filed against the same Award of the Motor Accidents Claims Tribunal, Kozhikode (hereinafter referred to as ‘the Tribunal’ for short), in OP(MV) No.1851/2014. 2. While MACA No.2551/2016 has been filed by the claimants; MACA No.3285/2016 has been filed by the Insurance Company. 3. The claimants are the legal heirs of Mubashira, who unfortunately died in a road accident on 17.07.2014, while the mini bus in which she was travelling, capsized on account of the rash and negligent driving of its driver. 4. There is no contest regarding the facts involved in this case; but the Insurance Company contends that the compensation awarded by the Tribunal is in excess; while the claimants argue to the contrary and seek enhancement. 5. Sri.P.Jacob Mathew – learned Senior Counsel, instructed by Smt.Preethy Nair, learned counsel appearing for the Insurance Company, argued that the learned Tribunal has erred in granting MACA 2551 & 3285/16 4 compensation under the head ‘Loss of Love and Affection’ to the extent of Rs.50,000/- each to the claimants, while no such should have been granted at all. However, he conceded – to a pointed question from this Court – that the Tribunal could have certainly granted compensation under the head ‘Loss of Consortium’ to the father and mother, but not to the siblings. He then argued that the compensation granted by the Tribunal under the head ‘Funeral Expenses’ and ‘Loss of Estate’ is both in excess of what could have been granted, going by National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]. He concluded his submissions saying that the future prospects adopted by the Tribunal, while computing compensation for ‘Loss of Dependency’, was also in error, since the deceased was 21 years in age at the time of the accident and that only 40% could have been adopted, instead of 50% as has been now done. 6. In response, Smt.Rashmi K.V. - learned counsel for the claimants, argued that the compensation awarded by the Tribunal is exiguous because, late Mubashira was a Teacher at the time of her death, entitled to a much larger income in future. She, MACA 2551 & 3285/16 5 however, conceded on being specifically asked by this Court, that even going by Ext.A2 – Salary Certificate, her income shown is only Rs.10,000/-. 7. I have considered the afore rival contentions 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 be acted upon by this Court without dispute. 8. It is pertinent that the Insurance Company does not challenge the notional income adopted by the Tribunal in favour of the deceased. This figure has been proved through Ext.A2; and in any event, it is only marginally more than what the Honourable Supreme Court postulates in Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]. I do not, therefore, deem it necessary to enter into this issue at all, except for the purpose of evaluating whether a larger figure ought to have been granted. In this regard, I am afraid that I cannot find favour with the claimants because, when they produced Ext.A2 to show the income of the deceased to be Rs.10,000/- and MACA 2551 & 3285/16 6 when it has been granted by the Tribunal, no error can be attributed to it. 9. Coming to the percentile of future prospects adopted, I find favour with the learned Senior Counsel that only 40% could have been taken and not 50% as has been now done. Similarly, in the case of compensation under the head ‘Funeral Expenses’ and ‘Loss of Estate’, only Rs.15,000/- each could have been offered, going by Pranay Sethi (supra). To that extent, the Award of the Tribunal certainly requires a revisit. 10. Coming to the last of the contests, namely, compensation under the head ‘Loss of Love and Affection’, no doubt, no such could have granted, going by the ratio in United India Insurance Company Ltd. v. Satinder Kaur @Satwinder Kaur and Others [2020 (3) KHC 760 (SC)]. However, amounts under the head ‘Loss of Consortium’ certainly is eligible to the parents of the deceased; and a question remains as to whether it is entitled to the siblings. This is because, neither of the sides has led evidence to show that the siblings were dependent upon the deceased. However, I notice that the Tribunal has already found that the MACA 2551 & 3285/16 7 siblings are not dependent on the deceased going by Ext.A4 – Family Membership Certificate; and certainly, therefore, only the parents would be entitled to the compensation under the head ‘Loss of Consortium’. Resultantly, these Appeals are disposed of in the following manner: I. MACA 3285/2016 is allowed in part, with the following directions: a) The compensation awarded under the head ‘Loss of Dependency’ is revised to Rs.15,12,000/-, instead of Rs.16,20,000/granted by the Tribunal. b) The compensation under the head ‘Funeral Expenses’ and ‘Loss of Estate’ is reduced to Rs.15,000/- each, from Rs.25,000/- as granted by the Tribunal. c) The compensation awarded under the head ‘Loss of Love and Affection’ is deleted. d) Respondents 1 and 2 are granted compensation under the head ‘Loss of Consortium’, of an amount of Rs.40,000/- each. e) In all other heads, the findings of the Tribunal will MACA 2551 & 3285/16 8 remain unaltered. II. MACA 2551/2016 is dismissed, subject to the modifications in the Award as made in (a) above. Needless to say, the claimants/appellants in MACA 2551/2016 will be at full liberty to recover the compensation, as modified by this Court, from the Insurance Company, along with interest at the rate of 9% as awarded by the Tribunal, from the date of claim until it is recovered. They will also be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN JUDGE ```