High Court of KeralaSingle Judge2018-05-30Appeal partly allowed; compensation enhanced to...

Noushand and others v. Moosa Haji and Aneesh K. and The Oriental Insurance Co. Ltd.

Case / Petition Number:MACA No. 2075 of 2015

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2018-05-30
Court Decision / Holding: The High Court partly allowed the appeal. It upheld the Tribunal’s findings on most heads but recalculated the compensation in light of Pranay Sethi and subsequent jurisprudence, enhancing the total to Rs. 4,32,500 across the categories of love and affection (Rs. 30,000), funeral expenses (Rs. 15,000), loss of estate (Rs. 15,000), pain and suffering (Rs. 10,000), loss of dependency (Rs. 3,60,000), transportation (Rs. 2,000), and damage to clothing (Rs. 500). The insurance company was directed to deposit the entire amount with interest within three months, and the petitioners were permitted to withdraw the amount equally. All other Tribunal findings were left intact.
Final Disposition: Appeal partly allowed; compensation enhanced to Rs. 4,32,500 with specific heads adjusted as per Pranay Sethi principles; insurer directed to deposit the amount with interest within three months; petitioners entitled to withdraw the entire amount equally; other Tribunal findings remain undisturbed.

Parties to the Case

Appellants / Petitioners

Noushand
Sajida
Muhammed Adinan (minor)
Muhammed Ajmal (minor)

Respondents

Moosa Haji
ANEESH K.
The Oriental Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. U.P. Balakrishnan
• Sri. K.R. Avinash (Kunnath)

Counsels for Respondents

• Smt. Rekha Nair
• Smt. K.S. Santhi

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal (MACA No. 2075 of 2015) filed before the Kerala High Court challenging the MACT, Vatakara award in OPMV 249/2012 arising out of a road traffic accident that caused the death of Ayida Sherin, a child aged about 4½ years. The Original Petition under Section 166 of the Motor Vehicles Act, 1988, sought compensation for the loss suffered by the appellants as legal representatives. The Tribunal awarded Rs. 2,44,500 with 9% interest, distributing the amount across various heads (loss of dependency, funeral expenses, loss of estate, pain and suffering) while holding that there was no award for love and affection. The appellants contended that the quantum under heads such as loss of dependency, funeral expenses, and loss of estate was inadequate and that love and affection should have been compensated given the child’s age. They relied on Supreme Court guidance in Pranay Sethi (funeral expenses and loss of estate) and Kishan Gopal for updating notional income, arguing for an increased dependency loss (noting a 2013 ACJ 2594 reference) and an enhanced total compensation. The respondents argued the award was fair and adequate. The High Court, applying Pranay Sethi principles and subsequent jurisprudence, recalculated the compensation and directed deposit of Rs. 4,32,500 (with various heads) and allowed withdrawal by the petitioners, while keeping other Tribunal findings intact.

Provisions of Law Cited

Section 166, Motor Vehicles Act, 1988Second Schedule, Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Pranay Sethi doctrine: entitlement to Rs. 15,000 each under funeral expenses and loss of estate irrespective of evidence
Kishan Gopal v. Lala and others (2014) 1 SCC 244: updating notional income and multiplier considerations
Use of multiplier and notional income principles under the Motor Vehicles Act, 1988 (Second Schedule)
2013 ACJ 2594: judiciary’s guidance on revisiting notional income in post-incident periods

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the Tribunal erred in quantifying compensation under heads such as loss of dependency, funeral expenses and loss of estate, and in omitting any award for love and affection despite the child’s young age. They urged application of the Pranay Sethi framework, which prescribes Rs. 15,000 for funeral expenses and loss of estate in such cases, and a separate Rs. 10,000 for pain and suffering where the death followed short hospitalisation. They pressed for upward revision of the deceased’s notional income, citing Kishan Gopal (2014) 1 SCC 244 and 2013 ACJ 2594, to Rs. 36,000 per year, which would raise the loss of dependency to Rs. 3,60,000 (36,000 x 15 x 2/3). They also urged payment for love and affection to the petitioners given the minor children’s conditions, resulting in an aggregate claim of Rs. 4,32,500. Finally, they requested that the Tribunal’s other factual findings be maintained while the enhanced figures be substituted.

Contentions of Respondents

The insurer contested enhancing the award beyond the Tribunal’s quantum, arguing that the existing award was just and fair and supported by the evidence on record. They maintained that the precedent in Pranay Sethi primarily guides determinations in similar circumstances but urged caution in applying headwise enhancements without robust evidence. They defended the absence of an award for love and affection as not justifiable given the facts and contended that the balance of heads had been rightly assessed by the Tribunal.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
National Insurance Company Limited v. Pranay Sethi and Others	2017(5) KHC 350 (SC)	Positive	The Supreme Court’s Pranay Sethi framework is applied to guarantee funeral expenses, loss of estate, and related compensation even in the absence of direct evidence; the Kerala High Court adopts this principle to uplift the award.
Kishan Gopal and another v. Lala and others	[(2014) 1 SCC 244]	Positive	Used to justify upward revision of notional income post-incident time frame, guiding the enhancement of loss of dependency calculation.
2013 ACJ 2594	—	Positive	Cited to support the argument for updating notional income in light of the time elapsed since the accident.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 30TH DAY OF MAY 2018 / 9TH JYAISHTA, 1940 MACA.No. 2075 of 2015 AGAINST THE AWARD IN OPMV 249/2012 of MACT VADAKARA DATED 28-04-2015 APPELLANT(S)/APPELLANTS/PETITIONERS: - 1 NOUSHAND, - S/O MAHAMMOOD HAJI, MANNATH HOSUE, VANMUGHAM AMSOM DESOM, KADALOOR P.O., PIN:673 529, KOYILANDY TALUK. ## 2 SAJIDA, W/O NOUSHAD, MANNATH HOUSE, VANMUGHAM AMSOM DESOM, KADALOOR P.O., PIN:673 529, KOYILANDY TALUK. ## 3 MUHAMMED ADINAN (MINOR), REPRESENTED BY FATHER/NEXT FRIEND NOUSHAD S/O MAHAMMOOD HAJI, AGED 35 YEARS, MANNATH HOUSE, VANMUGHAM AMSOM DESOM, KADALOOR P.O., PIN:673529, KOYILANDY TALUK. ## 4 MUHAMMED AJMAL (MINOR), REPRESENTED BY FATHER/NEXT FRIEND NOUSHAD S/O MAHAMMOOD HAJI, AGED 35 YEARS, MANNATH HOUSE, VANMUGHAM AMSOM DESOM, KADALOOR P.O., PIN:673529, KOYILANDY TALUK. ## BY ADVS.SRI.U.P.BALAKRISHNAN SRI.K.R.AVINASH (KUNNATH) RESPONDENT(S)/RESPONDNETS/RESPONDENTS: 1. MOOSA HAJI, S/O THOPPER, CHALIL HOUSE, KADAVATHUR P.O., THALASSERY, KANNUR DISTRICT, PIN:670 676. 2. ANEESH K., S/O KUNHAMBU, ELAMPRANICHERI KUNIYIL HOUSE, KADAVATHUR P.O., THALASSERY, KANNUR DISTRICT, PIN:670 676. 3. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, SREENIDHI BUILDING, VATAKARA, CALICUT, PIN:673 101. R3 BY ADV. SMT.REKHA NAIR R BY SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DG ## **K. HARILAL, J.** ## **= = = = = = = = = = = = = = = = =** ## **M.A.C.A. No.2075 of 2015** **- - - - - - - - - - - - - - - - - - - - - -** Dated this the 30[th] day of May, 2018 ## **J U D G M E N T** The appellants are the petitioners in O.P.(MV) No.249 of 2012 on the files of the Motor Accidents Claims Tribunal(hereinafter referred to as 'the Tribunal'), Vatakara and the respondents are respondents therein. They are the legal representatives of the deceased Ayida Sherin, who died in a road traffic accident. The aforesaid Original Petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the loss caused to them by the death of the deceased Ayida Sherin. 2. According to them, the deceased was aged 4½ years only at the time of accident and they are suffering from heavy loss caused by the death of the said Ayida Sherin. As per the averments in the Original Petition, on 01.02.2017 at 1.30 pm, while the aforesaid Ayida Sherin was walking through the road, the offending vehicle driven by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent hit down her, causing serious injuries to her. Though, she was taken to the ## **M.A.C.A. No.2075 of 2015** ## **-: 2 :-** Government hospital and treated, eventually she succumbed to the injuries. 3. The respondents opposed the said application, disputing the cause of accident and quantum of compensation claimed under various heads. But, the 3[rd] respondent admitted the coverage of the insurance policy issued in favour of the 2[nd] respondent. After considering the evidence on record, the Tribunal passed the impugned award granting `2,44,500/- to the appellants with 9% interest as compensation. The inadequacy and correctness of the quantum of compensation determined under various heads and rejection of the claim under the head 'love and affection', are assailed in this appeal. 4. Heard the learned counsel for the appellants and the learned counsel for the 3[rd] respondent Insurance Company. 5. It is contended by the learned counsel for the appellants that the quantum of compensation determined under the head compensation for 'loss of dependency', 'funeral expenses' and 'loss of estate', are inadequate and requires enhancement in appeal. It is contended that the Tribunal went ## **M.A.C.A. No.2075 of 2015** ## **-: 3 :-** wrong by rejecting the claim of compensation under the head 'loss of love and affection'. So also, it is contended that the Tribunal has went wrong in calculating the quantum of compensation under the head 'loss of dependency'. 6. Per contra, the learned counsel for the 3[rd] respondent Insurance Company advanced arguments to justify the quantum of compensation granted under various heads of claim. According to the learned counsel, the quantum of compensation granted under the aforesaid heads of claim are just and fair, warranting no interference in this appeal. 7. The point to be considered is, whether the Tribunal is justified in determining the compensation under the heads 'funeral expenses' and 'loss of love and affection' and rejecting the claim under the head 'compensation for love and affection'. 8. Going by the award, it could be seen that the Tribunal has granted `2,000/- for 'funeral expenses' and `2,500/- for 'loss of estate'. In **National Insurance Company Limited v. Pranay Sethi and Others** [2017(5) KHC 350 (SC)], the Supreme Court specifically held that invariably in all process even in the ## **M.A.C.A. No.2075 of 2015** ## **-: 4 :-** absence of evidence, the claimants are entitled to get `15,000/each under the heads 'funeral expenses' and 'loss of estate'. Therefore, in view of the decision in **Pranay Sethi** 's case (supra), the petitioners are given `15,000/- each under the head 'funeral expenses' and 'loss of estate'. 9. It is not disputed that at the time of accident, the deceased Sherin was aged 4½ years only. But, the Tribunal has not granted any amount under the head 'love and affection'. The Tribunal is not justified in omitting to consider the claim under the head 'love and affection'. Having regard to the age of the deceased and the age of the petitioners, they are given `30,000/as compensation under the head 'loss of love and affection'. 10. It is true that the deceased had succumbed to the injuries on the same day itself, but she died after taking her to the hospital, while she was undergoing treatment. This Court is of the view that if the deceased has suffered pain and the duration is short, the claimants are entitled to get compensation for the pain suffered by the deceased for a short period. Therefore, the petitioners are given 10,000/- as compensation₹ **M.A.C.A. No.2075 of 2015** ## **-: 5 :-** for pain and suffering. 11. The next question to be considered is to whether the Tribunal has erred in determining and calculating the compensation for loss of dependency. The Tribunal has granted ₹2,40,000/- as compensation for loss of dependency as per 2nd schedule. The Tribunal has taken 30,000/- as notional income of₹ the deceased per annum and 15 was taken as multiplier applicable to the petitioner as per the 2[nd] schedule. Even if ₹30,000/- is the monthly income per annum and 15 is the proper multiplier the petitioners are entitled to get 3,00,000/- as t₹ he compensation after deducting 1/3 from the annual income for living expenses (30000x15x2/3). But the Tribunal has erred in calculating the amount and granted 2,40,000/-₹ only. 12. The learned counsel for the appellant further submits that the Tribunal has further went wrong by taking ₹30,000/- only as the annual income and no enhancement was given, considering the passage of time after the **-: 6 :-** ## **M.A.C.A. No.2075 of 2015** decision in 2013 ACJ 2594 by the Apex Court. The learned counsel cited **Kishan Gopal and another v. Lala and others [(2014) 1 SCC 244]** , wherein the Honourable Supreme Court has taken 30,000/- as income per annum₹ for an accident occurred in the year 1992 for the deceased aged 10 years. According to the learned counsel in the instant case accident has occurred in the year 2012. Therefore, in the light of the aforesaid decision the Tribunal could have taken a higher amount more than 30,000/-₹ considering the passage of time. 13. I find some force in the said arguments advanced by the learned counsel for the petitioners. Considering the passage of time after the decision of the Apex Court in **(2014) 1 SCC 244,** the monthly income per annum would stand enhanced to 36,000/- from 30,000/-. Consequently₹ ₹ the petitioners are entitled to get ₹3,60,000/as compensation for loss of dependency (36000x15x2/3). Thus the petitioners are entitled to get 4,32,500/- compensation₹ **M.A.C.A. No.2075 of 2015** ## **-: 7 :-** ## as given below: |Love and affection|30,000/- ₹| |---|---| |funeral expenses|15,000/- ₹| |loss of estate|15,000/- ₹| |pain and suffering|10,000/- ₹| |loss of dependency|3,60,000/- ₹| |transportation|2,000/- ₹| |damage to clothing|500/- ₹| |TOTAL|4,32,500/- ₹| It is needless to say that the aforesaid amount would carry interest as stipulated by the Tribunal. All other findings of the Tribunal would stand undisturbed and operative. The Insurance company is directed to deposit entire amount with interest within three months from today. First and Second petitioners are allowed to withdraw the entire compensation equally. Sd/- DST/DG **K.HARILAL (JUDGE)** True copy P.A to Judge