National Insurance Co. Ltd. v. Musthafa and others

**MACA NO. 848 OF 2018** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 5[TH] DAY OF OCTOBER 2021 / 13TH ASWINA, 1943** **MACA NO. 848 OF 2018** **AGAINST THE COMMON AWARD DATED 29.3.2017 IN OPMV 1037/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI, MALAPPURAM** ## **APPELLANT/3RD RESPONDENT:** NATIONAL INSURANCE CO. LTD MANJERI, REP. BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, COCHIN-35. BY ADV SRI.E.M.JOSEPH ## **RESPONDENT/CLAIMANTS/RESPONDENTS 4 AND 5:** - 1 MUSTHAFA AGED 43, S/O. KOYA, KUTTEERI HOUSE, KOLAVATTOM.P.O.,KARULAYIL, NILAMBUR,MALAPPURAM-679330. - 2 MUBASHIRA AGED 18, D/O. MUSTHAFA, KUTTEERI HOUSE, KOLAVATTOM.P.O., KARULAYI, NILAMBUR, MALAPPURAM-679330. - 3 MUBARISH AGED 16, S/O. MUSTHARA, KUTTEERI HOUSE,KOLAVATTOM.P.O., KARULAYI, NILAMBUR,MALAPPURAM-679330, MINOR REP. BY MUSTHAFA 1ST RESPONDENT. - 4 ALAVI AGED 65, PUTHYAKATH HOUSE, CHULLIYODE.P.O., NILAMBUR-679332. - 5 PATHUMMAKUTTY AGED 60, W/O. ALAVI, PUTHYAKATH HOUSE,CHULLIYODE.P.O., NILAMBUR679332. **MACA NO. 848 OF 2018** **2** BY ADVS. SRI.P.SAMSUDIN SRI.M.ANUROOP THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 848 OF 2018** **3** ## **JUDGMENT** The appellant/insurer was the third respondent in O.P.(MV) No.1037/2013 on the file of the Motor Accidents Claims Tribunal, Manjeri. The respondents 1 to 3 in the appeal were the petitioners and respondents 4 and 5 were the respondents 4 and 5 before the Tribunal. The parties are for the sake of convenience, referred to as per their status in the claim petition. 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 Nafeesa (deceased), the wife of the first petitioner, the mother of petitioners 2 and 3 and the daughter of the respondents 4 and 5. It was there case that, on 30.08.2012, while the deceased was travelling as pillion along with her husband and their child named Shahabas on a motorcycle bearing registration No. KL-10/Y-3139 from Karulayi to Nilambur, when they reached at a place named Vallappuzha, a bus bearing registration No. KL-10/J-657 (bus), driven by the first respondent in a rash and negligent manner, hit the motor cycle. The deceased and the child fell down and succumbed to the injuries. **MACA NO. 848 OF 2018** **4** The bus was owned by the second respondent and was insured with the third respondent. The deceased was a tailor by profession and earning a monthly income of Rs.6,000/-. The petitioners and respondents 4 and 5 were dependants of the deceased. The petitioners claimed a compensation of Rs.7 lakh from the respondents 1 to 3. 3. The petitioners also filed O.P.(MV) No.1035/2013 before the Tribunal against the respondents 1 to 3 seeking compensation on account of the death of Shahabas, the son of the first petitioner and the brother of the petitioners 2 and 3. 4. The respondents 1 and 2 had filed a joint written statement denying the allegations in the claim petition. 5. The third respondent had filed a separate written statement in both the claim petitions inter alia, admitting that the bus had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence on the part of the first petitioner. 6. The Tribunal consolidated and jointly tried the original claim petitions. **MACA NO. 848 OF 2018** **5** 7. The petitioners produced and marked Exts.A1 to A9 in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analyzing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to realise from the third respondent an amount of Rs.17,33,000/- with interest and cost. 9. Aggrieved by the impugned award, the third respondent insurer is in appeal. 10. Heard; Sri. E.M.Joseph, learned counsel appearing for the appellant/third respondent-insurer and Sri. P. Shamsuddhin, learned counsel appearing for the respondents/petitioners/ respondents 4 and 5. 11. The question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability.** 12. Exhibit A2 charge sheet filed by the police substantiates the fact that the accident occurred on account of the negligence **MACA NO. 848 OF 2018** **6** of the first respondent. Admittedly, the second respondent was the owner and the third respondent was the insurer of the bus. The third respondent admitted that the bus had a valid insurance coverage and had conceded that the second respondent had not violated the policy conditions. Therefore, the third respondent is liable to indemnify the second respondent of his liability arising out of the accident. ## **Income of the deceased.** 13. The petitioners had averred in the claim petition that the deceased was a tailor by profession and earning a monthly income of Rs.6,000/-. The Tribunal accepted the contention and fixed the monthly income of the deceased as Rs.6,000/-. 14. Taking into account the fact that the accident occurred in the year 2012 and that the petitioners had only claimed an amount of Rs.6,000/- as monthly income of the deceased, I do not find any error in the fixation of the monthly notional income of the deceased. ## **Multiplier.** 15. The deceased was aged 32 years on the date of the accident/death. In the light of the law laid down in **Sarla Verma and others V. Delhi Transport Corporation [(2009) 6 SCC** **MACA NO. 848 OF 2018** **7** **121],** the relevant multiplier is '16'. ## **Dependants of the deceased.** 16. It is proved by Ext.A9 family membership certificate that the petitioners and respondents 4 and 5 were the dependants of the deceased. Going by the law laid down in **Sarla Verma** (supra) and **National Insurance Company v. Pranay Sethi [(2017) 16 SCC 680** ] ¼ of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects.** 17. Following the ratio in **Sarla Verma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 32 years at the time of the accident/death, I hold that the petitioners and respondents 4 and 5 are also entitled to future prospects at 40% on the compensation for loss due to dependency. ## **Loss due to dependency** 18. Taking into account the above mentioned factors namely, the monthly income of the deceased as Rs.6,000/-, the multiplier at '16', future prospects at 40% and after deducting 1/4[th] of the total compensation towards personal living expenses of the deceased, I refix the compensation for loss of dependency at Rs.12,09,600/- instead of Rs.12,96,000/- fixed by the Tribunal. **MACA NO. 848 OF 2018** **8** ## **Conventional heads of compensation.** 19 **.** In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for compensation under the conventional heads, namely, funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- each respectively. 20. In the instant case, the Tribunal has awarded an amount of Rs.1 lakh as compensation for 'loss of estate' and Rs.25,000/- as compensation for 'funeral expenses'. In view of the law laid down in **Pranay Sethi** (supra), I scale down the compensation for 'loss of estate' and 'funeral expenses' to Rs.15,000/- each. 21. The Tribunal has awarded an amount of Rs.1 lakh as loss of consortium to the appellants and respondents 4 and 5. In the light of the ratio in **Pranay Sethi** (supra) I hold, each of the petitioners and respondents 4 and 5 are entitled Rs.40,000/- each as loss of consortium, totalling to an amount of Rs.2 lakh. ## **Loss of love and affection and compensation for pain and sufferings.** 22. The Tribunal has awarded an amount of Rs.1 lakh as compensation for loss of love and affection and Rs.25,000/- as **MACA NO. 848 OF 2018** **9** compensation for pain and sufferings. 23. In **New India Assurance Company Ltd. V. Somwati & Ors. [(2020) 9 SCC 644** ], the Hon'ble Supreme Court has held that once compensation under the head of loss of consortium is awarded, no amount of compensation shall be awarded under the head loss of love and affection, as it would amount to duplication of compensation. Hence I set aside the amount of Rs.1 lakh awarded under the head loss of love and affection. 24. In paragraph 19 of **Sarla Verma** (supra), the Hon'ble Supreme Court has categorically held that no amount shall be awarded under the head pain and sufferings in the case of instantaneous death to the legal representative of the deceased. The said view has been reiterated by the Hon'ble Supreme Court in **United India Insurance Company Ltd. v. Satwinder Kaur @ Satwinder Kaur and Others [2020 (3) KHC 760 (SC)]** . Therefore, I set aside the amount of Rs.25,000/- awarded under the head pain and sufferings. 25. The Tribunal has awarded an amount of Rs.1 lakh under the head compensation for guidance to children. The aforesaid head is also not permissible in view of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra). Therefore, I set aside the **MACA NO. 848 OF 2018** **10** said amount also. 26. With respect to the compensation awarded under the head Transport and clothing at the rate of Rs.1,000/- each, I find the same to be reasonable and just. 27. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore cited decisions, I hold that the appellant is only liable to pay compensation as modified and recalculated above and given under the table for easy reference. |**Sl.**<br>**No**|**Head of claim**|**Amount awarded**<br>**by**<br>**the**<br>**Tribunal(Rs.)**|**Amount modified**<br>**and recalculated**<br>**by this Court**<br>**(Rs.)**| |---|---|---|---| |1.|Tranport Expenses|1,000/-|1,000/-| |2.|Clothing|1,000/-|1,000/-| |3.|Loss of estate|1,00,000/-|15,000/-| |4.|Funeral expenses|25,000/-|15,000/-| |5.|Loss of love and affection|1,00,000/-|-| |6.|Pain and sufferings|25,0000/-|-| |7.|Compensation for guidance to children|1,00,000/-|-| |8.|Loss of consortium|1,00,000/-|2,00,000/-| |9.|Loss of dependency|12,96,000/-|12,09600/-| ||Total|17,33,000/-|14,41,600/-| **MACA NO. 848 OF 2018** **11** In the result, the appeal is allowed by scaling down the compensation amout by Rs.2,91,400/-. The appellant/3rd respondent-insurer is directed to deposit the amount of Rs.14,41,600/- with interest at the rate of 9% p.a from the date of petition till the date of realisation and proportionate cost within a period of sixty days from the date of receipt of a copy of this judgment. Immediately on the deposit being made, the Tribunal shall disburse the compensation to the petitioners 1 and 2 in the ratio of 25:25 and jointly to the respondents 4 and 5 at 25%. The 25% proportionate share of the third respondent/3rd petitioner shall be put in fixed deposit till he attains the age of majority or if earlier ordered by the Tribunal. Sd/- **C.S.DIAS JUDGE** al/-