Muhammed Kunju and Arifa Beevi v. Bajaj Allianz General Insurance Co. Ltd.

MACA NO. 1812 OF 2011 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 10[TH] DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943** **MACA NO. 1812 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 1440/2006 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,KOLLAM, KOLLAM APPELLANT/S:** 1 MUHAMMED KUNJU AND ANOTHER, F/O. LATE SALAHUDEEN, PULATHARAYIL, NANBARUVIKALA, KARUNAGAPPALLY. 2 ARIFA BEEVI M/O. LATE SALAHUDEEN PULATHARAYIL, NANBARUVIKALA, KARUNAGAPPALLY. BY ADV SRI.PRATHEESH.P ## **RESPONDENT/S:** THE MANAGER,BAJAJ ALLIANZE GENERAL INSURANCE CO. LTD.,, ANUGRAHA, IIND FLOOR, M.G.ROAD, PAZHAVANGADI,, THIRUVANANTHAPURAM-695 001. BY ADV SRI.P.S.RAMU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1812 OF 2011 2 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1440/2006 on the file of the Motor Accidents Claims Tribunal, Kollam. The respondent in the appeal was the 3[rd] respondent/insurer before the Tribunal. The appellants have not impleaded the respondents 1 and 2 before the Tribunal as parties before this Court, as the insurer has admitted the insurance policy. Therefore, the parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of their son Salahudeen (deceased), who was aged 26 years at the time of his death. It was the case of the petitioners that on 24.08.2006, while the deceased was riding his motor cycle bearing registration No.KL-2-N-7733 along the KollamAlappuzha National Highway, when he reached southern side of Vavvakkavu junction, a Qualis van bearing registration No.KL 2N-8854 (van) driven by the 2[nd] MACA NO. 1812 OF 2011 3 respondent, in a rash and negligent manner, hit the motor cycle. The deceased was thrown on to the road and he sustained serious injuries. He succumbed to the injuries on the following day. The deceased was a businessman by profession and earning a monthly income of Rs.3,000/-. The van was owned by the 1[st] respondent and insured with the 3[rd] respondent. The petitioners were dependent on the deceased. Hence, the petitioners claimed a compensation of Rs.5,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. The 3[rd] respondent filed a written statement admitting that the van had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence on the part of the deceased, who rode the motor cycle without helmet. The 3[rd] respondent also disputed the age, income and occupation of the deceased. 4. The 1[st] petitioner was examined as PW1 and Exts.A1 to A13 series were marked through him in evidence. Respondents did not let in any evidence. MACA NO. 1812 OF 2011 4 5. The Tribunal after analysing the pleadings and the materials on record, allowed the claim petition in part, by permitting the petitioners to recover from the 3[rd] respondent an amount of Rs.3,37,700/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and proportionate cost 6. Dissatisfied with the quantum of compensation, the petitioners are in appeal. 7. Heard Sri.Pratheesh P., the learned counsel appearing for the appellants/petitioners and Sri.P.S.Ramu, the learned counsel appearing for the respondent/insurer. 8. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and Liability** 9. Ext.A2 final report filed by the Police substantiates that the accident occurred due to the negligence on the part of the 2[nd] respondent, who drove the van. Undisputedly, the van belonged to the 1[st] respondent and was insured with the 3[rd] respondent. Therefore, the 3[rd] MACA NO. 1812 OF 2011 5 respondent is to indemnify the liability of the 1[st] respondent arising out of the accident, as the 3[rd] respondent has no case that the 1[st] respondent had violated the policy conditions. ## **Income** 10. The petitioners had stated that the deceased was a businessman by profession and earning an amount of Rs.3,000/- per month. 11. While the 1[st] petitioner was examined as PW1, he stated that the deceased had an income of Rs.5,000/-. In order to substantiate his assertion he produced Ext.A8 S.S.I. Registration Certificate. Nevertheless, the Tribunal fixed the notional income of the deceased at Rs.4,000/- per month. 12. On a re-appreciation of the pleadings and the materials on record, I do not find any error in the notional income of the deceased fixed by the Tribunal at Rs.4,000/per month, which I do confirm. ## **Multiplier** 13. The deceased was aged 26 years as on date of MACA NO. 1812 OF 2011 6 death. In the light of the law laid down in S **arla Varma vs.** **Delhi Transport Corporation** : 2010 (2) KLT 802, the relevant multiplier is '17'. ## **Personal living expenses of the deceased** 14. Undisputedly, the deceased was a bachelor. As per **Sarla Varma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] one half of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future Prospects** 15. Following the ratio in **Sarla Varma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 26 years at the time of death and the multiplier being '17', 40% of the compensation for loss of dependency has to be added towards future prospects of the petitioners. ## **Loss due to dependency** 16. Taking into account the above mentioned factors i.e., the monthly income of the deceased at Rs.4,000/- the multiplier at 17, future prospects at 40% and deducting MACA NO. 1812 OF 2011 7 one half of the compensation towards personal living expenses of the deceased, I refix the compensation for loss of dependency of the petitioners at Rs.5,71,200/- instead of Rs.2,64,000/- awarded by the Tribunal. ## **Conventional heads of Compensation** 17. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra) the Honourable Supreme Court has held that the dependents of the deceased are entitled to compensation under the conventional heads i.e., funeral expenses, loss of estate and loss of consortium at Rs.15,000, Rs.15,000 and Rs.40,000 respectively. 18. In the instant case, the Tribunal has awarded only an amount of Rs.5,000/- under the head funeral expenses. Therefore, I enhance the said compensation by a further amount of Rs.10,000/-. Similarly, the Tribunal has not awarded any amount towards loss of estate. Accordingly, I award an amount of Rs.15,000/- under the said head. 19. The Tribunal has not awarded any amount under the head loss of consortium. As the petitioners were the parents of the deceased, they are entitled for loss of MACA NO. 1812 OF 2011 8 consortium at Rs.40,000/- each, totaling to an amount of Rs.80,000/-. ## **Loss of compensation for love and affection and pain and suffering** 20. It is seen that the Tribunal has awarded an amount of Rs.10,000/- as compensation for love and affection and Rs.25,000/- for compensation for pain and suffering. 21. In **New India Assurance Company Ltd. vs. Somvathy and others :** [(2020) 9 SCC 644] the Honourable Supreme Court has held that once compensation under the head loss of consortium is awarded, no amount of compensation can be awarded under the head loss of love and affection, as it would amount to duplication of compensation. Similarly in **United India Insurance Company Ltd. Vs. Satinder Kaur @ Satwinder Kaur and others** (2020 (3) KHC 760) the Honourable Supreme Court has held that in case of death, no amount can be awarded under the head pain and sufferings for the dependents of the deceased. MACA NO. 1812 OF 2011 9 22. In the above legal back ground, I set aside the amount of Rs.10,000/- and Rs.25,000/- awarded under the aforesaid heads. 23. With respect to the amount of compensation awarded under the head medical expenses, as the same being the actuals, I confirm the amount awarded by the Tribunal. 24. On an overall re-appreciation of the pleadings and materials on record, and the law laid down in the aforecited decisions, I am of the firm opinion that the appellants are entitled for compensation as modified and recalculated above and given in the table below for easy reference: **==> picture [427 x 262] intentionally omitted <==** **----- Start of picture text -----**<br> SI. Head of claim Amount Amounts<br>No awarded by modified and<br>the Tribunal recalculated<br>(in rupees) by this Court<br>1. Transportation 0 0<br>expenses<br>2. Funeral expenses 5000 15,000/-<br>3. Loss of estate 0 15,000/-<br>4. Loss of consortium 0 80,000/-<br>5. Pain and sufferings 25,000/- 0<br>6. Loss of love and 10,000/- 0<br>**----- End of picture text -----**<br> MACA NO. 1812 OF 2011 10 **==> picture [427 x 160] intentionally omitted <==** **----- Start of picture text -----**<br> affection<br>7. Medical expenses 29,666/- 29,666/-<br>8 Loss due to dependency 2,64,000/- 5,71,200/-<br>Total 3,33,666 7,10,866/-<br>rounded off<br>to<br>3,33,700/-<br>**----- End of picture text -----**<br> 25. Even though the appellants had claimed only an amount of Rs.5,00,000/- as compensation, following the ratio in **Sarla Varma** and **Pranay Sethi** (supra), the dependents of the deceased are also entitled to future prospects at 40% and compensation under the conventional heads. Therefore, the compensation now awarded is more than what is claimed in the claim petition. The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 (SC)] and **Rajesh vs. Rajbir Sing** [2013 (3) KLT 89 (SC)], wherein the Honourable Supreme Court has held that there is no restriction in awarding more compensation than what is claimed in the claim petition. In the result, the appeal is allowed, by enhancing the MACA NO. 1812 OF 2011 11 compensation by a further amount of Rs.3,77,166/- with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of deposit and cost of Rs.3,000/-. The respondent/insurer is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellants in equal shares and in accordance with law, after deducting their liability, if any, towards the court fee. All pending interlocutory applications will stand closed. Sd/- **C.S.DIAS JUDGE** rkc