# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 27[TH] DAY OF MAY 2022 / 6TH JYAISHTA, 1944**
**MACA NO. 2691 OF 2016**
**AGAINST THE AWARD DATED 21.6.16 IN OPMV 167/2012 OF MOTOR**
**ACCIDENT CLAIMS TRIBUNAL , MANJERI**
## **APPELLANT/3RD RESPONDENT:**
**RELIANCE GENERAL INSURANCE CO LTD MALAPPURAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE,ERNAKULAM.**
**BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI**
## **RESPONDENT/CLAIMANTS:**
- **1 AHAMMED KUTTY, S/O ABOOBACKER, PALEKKAPARAMBIL,KILINATTUPARAMBIL HOUSE, CALICUT AIRPORT PO,KONDOTTY AMSOM, KOLATHUR DESOM, MALAPPURAM DISTRICT-673647.**
- **2 SHARAFUNNEESA**
**D/O AHAMMED KUTTY, PALEKKAPARAMBIL, KILINATTUPARAMBIL HOUSE, CALICUT AIRPORT PO, KONDOTTY AMSOM,KOLATHUR DESOM, MALAPPURAM DISTRICT-673647.**
**3 RESEENA, D/O AHAMMED KUTTY, PALEKKAPARAMBIL,KILINATTUPARAMBIL HOUSE, CALICUT AIRPORT PO,KONDOTTY AMSOM, KOLATHUR DESOM,MALAPPURAM DISTRICT-673647.**
**4 BHADARUNNISA. D/O AHAMMED KUTTY, PALEKKAPARAMBIL,KILINATTUPARAMBIL HOUSE, CALICUT AIRPORT PO, KONDOTTY AMSOM,KOLATHUR DESOM, MALAPPURAM DISTRICT.673647.**
- **5 SAFEENA JASMIN, D/O AHAMMED KUTTY, PALEKKAPARAMBIL,KILINATTUPRAMBIL HOUSE, CALICUT ARIPORT PO,KONDOTTY AMSOM, KOLATHUR DESOM,**
**MACA NO. 2691 OF 2016 ..2..**
## **MALAPPURAM DISTRICT-673647.**
**6 ABU TAHIR, S/O AHAMMED KUTTY, (MINOR)PALEKKAPARAMBIL, KILINATTUPARAMBIL HOUSE, CALICUT AIRPORT PO, KONDOTTY AMSOM,KOLATHUR DESOM, MALAPPURAM DISTRICT-673647, 1ST RESOIBDEBT REPRESENTED BY FATHER 1ST RESPONDENT.**
**BY ADVS. SRI.JITHIN LUKOSE SRI.P.SAMSUDIN**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MACA NO. 2691 OF 2016 ..3..**
## **JUDGMENT**
The appellant is the 3[rd] respondent in O.P.(MV) No.167/2012 on the files of the Motor Accidents Claims Tribunal, Manjeri. The parties are referred to as per their status in the claim petition unless otherwise specifically mentioned.
2. The petitioners are the legal heirs of deceased Mahaboob, who met with an accident on 28.06.2011 while travelling as pillion rider on a motor cycle. According to the petitioners, a mini bus bearing registration No.KL-10AE-355 driven by the 1[st] respondent and owned by the 2[nd] respondent, hit against the motor cycle and Mahaboob sustained serious injuries and later succumbed to the injuries. The 3[rd] respondent is the insurer of the offending vehicle. According to the petitioners, the accident happened due to the negligence on the part of the 1[st] respondent. They claimed an amount of Rs.10,99,000/- as
**MACA NO. 2691 OF 2016 ..4..**
compensation for the death of Mahaboob.
3. Respondents 1 and 2 in the O.P. filed joint written statement contending that the accident did not happen due to the negligence of the 1[st] respondent, the driver of the mini bus. It was contended that the accident happened due to the negligence of the rider of the motor cycle who was riding the vehicle with three pillion riders. The appellant-insurance company filed written statement contending that the accident happened due to the negligence of the rider of the motor cycle. It was further contended that the amount claimed by the petitioners is excessive and exorbitant. The insurer, however, admitted that the mini bus was having a valid insurance policy at the time of the accident.
4. The Tribunal found that the accident happened due to the negligence of the driver of the mini bus and awarded an amount of Rs.14,36,000/- as total compensation with 9% interest per annum from the date
**MACA NO. 2691 OF 2016 ..5..**
of petition till realisation and proportionate costs. The 3[rd] respondent was directed to satisfy the award. The compensation awarded by the Tribunal under different heads is as follows:
|**Sl. N**|**o.**<br>**Head of claim**|**Amount claim (in**<br>**rupees)**|**Amount**<br>**awarded (in**<br>**rupees)**|
|---|---|---|---|
|1.|Transport to hospital|1000|1000|
|2.|Extra nourishment|3000|Nil|
|3.|Damage to clothing<br>and article|2000|1000|
|4.|Medical expense|Nil|Nil|
|5.|Loss of consortium|50000|Nil|
|6.|Loss of estate|10000|100000|
|7.|Funeral expense|8000|25000|
|8.|Pain and sufering|25000|Nil|
|9.|Loss of love and<br>afection|Nil|175000|
|10|Loss of dependency|1000000|1134000|
||Total|1099000<br>(claim limited<br>to Rs.700000)|1436000|
**MACA NO. 2691 OF 2016 ..6..**
5. Aggrieved by the award, the insurer has come up in appeal.
6. According to the appellant, the Tribunal went wrong in finding that the accident happened due to the negligence of the driver of the mini bus. The appellant also contends that the Tribunal went wrong in fixing the income of the deceased at Rs.7,000/- per month without any evidence on record and that the Tribunal erred in allowing 50% for future prospects whereas the deceased, being a self employed person without any fixed income, only 40% can be awarded towards future prospects. The appellant also challenged the compensation awarded under other heads.
7. Heard Adv.Smt.K.S.Santhi, the learned counsel for the appellant and Adv.Sri.Shamsuddin, the learned counsel for the respondents.
8. Adv. Smt.K.S.Santhi, the learned counsel for the appellant contends that the rider of the motor cycle was
**MACA NO. 2691 OF 2016 ..7..**
riding the vehicle along with three others on the pillion and therefore, the Tribunal ought to have found contributory negligence on part of the rider. The Hon'ble Supreme Court, in **Mohammed Siddique and another** _**v**_ **. National Insurance Co. Ltd. [2020 KHC 6043: (2020) 3 SCC 57],** held that, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law, but such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. Just for the reason that the rider of the motorcycle was riding the motorcycle along with three others on the pillion, contributory negligence cannot be attributed to the rider of the motorcycle. Therefore, the said challenge cannot be sustained.
**MACA NO. 2691 OF 2016 ..8..**
9. According to the petitioners, the deceased was a driver and was earning an amount of Rs.8,000/- per month at the time of his death. However, the Tribunal fixed the notional income of the deceased as Rs.7,000/- per month and added 50% of the income towards future prospects. v. Going by the decision in **Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Limited [2011(13) SCC 236: AIR 2011 SC 2951]** , the notional income of the deceased can be taken as Rs.8,000/-. Therefore, I re-fix the notional monthly income of the deceased as Rs.8,000/- for the purpose of computation of compensation. As per the decision of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and others** [(2017) 16 SCC 680], only 40% can be added towards future prospects. Therefore, the income of the deceased would come to Rs.11,200/[8,000+3200]. The multiplier to be adopted is '18'. Since
**MACA NO. 2691 OF 2016 ..9..**
the deceased was a bachelor, ½ of the income has to be deducted towards his personal and living expenses. Therefore, the compensation for loss of dependency is reworked as Rs.12,09,600/- [11,200 x 12 x 18 x ½]. An amount of Rs.11,34,000/- has already been awarded by the Tribunal under the head compensation for loss of dependency. After deducting the said amount, the petitioners are entitled for an additional amount of **Rs.75,600/** - [12,09,600-11,34,000] under the said head.
10. No amount has been awarded by the Tribunal under the head loss of consortium. The petitioners are the father and siblings of the deceased. Following the ratio in **Pranay Sethi** (supra), the 1[st] petitioner is entitled to Rs.44,000/- [40,000 + 10% hike for three years ( **N. Jayasree and others** _**v**_ **. Cholamandalam Ms General Insurance Co. Ltd (2021 (6) KHC 163 SC))** ] towards filial consortium. The other petitioners are not entitled to
**MACA NO. 2691 OF 2016 ..10..**
get compensation under the head loss of consortium.
11. An amount of Rs.1,75,000/- has been awarded under the head loss of love and affection. The Hon'ble Supreme Court has held in **United India Insurance Co.Ltd.** _**v.**_ **Satinder Kaur [AIR 2020 SC 3076],** that, when compensation is awarded under the head loss of consortium, there is no justification in awarding compensation for loss of love and affection as a separate head. Therefore, **Rs.1,75,000/-** already awarded under the head loss of love and affection has to be deducted from the total compensation.
12. Towards loss of estate, the Tribunal has awarded an amount of Rs.1,00,000/-. Going by the decision in _**Pranay Sethi**_ (supra) followed in **N.Jayasree** (supra), the petitioners are entitled only for an amount of Rs.16,500/(15,000+10% hike for every three years) under the head loss of estate. Therefore, **Rs.83,500/-** [1,00,000-16,500]
**MACA NO. 2691 OF 2016 ..11..**
has to be deducted from the total compensation.
13. Towards funeral expenses, the Tribunal has awarded an amount of Rs.25,000/-. In the light of the decision in _**Pranay Sethi**_ (supra), followed in **N.Jayasree** (supra), the petitioners are entitled for an amount of Rs.16,500/- (15,000+10% hike for three years) under the head funeral expenses. Therefore, an amount of **Rs.8,500/-** has to be deducted under the said.
14. The Tribunal has awarded just and reasonable
compensation under other heads.
15. Accordingly, the compensation awarded by the
Tribunal under various heads is re-worked as follows:
|**Sl**<br>**No**|**.**<br>**.**<br>**Head of claim**|**Amount**<br>**awarded by**<br>**the Tribunal**|**Amount**<br>**fxed by**<br>**this Court**|**Diference**|
|---|---|---|---|---|
|1.|Transport<br>to<br>hospital|1,000|1000|--|
|2.|Extra<br>nourishment|---|--|--|
|3.|Damage<br>to<br>clothing<br>and|1,000|1000|--|
**MACA NO. 2691 OF 2016 ..12..**
||article||||
|---|---|---|---|---|
|4.|Medical<br>expense|Nil|--|--|
|5.|Loss<br>of<br>consortium|Nil|44000|44000|
|6.|Loss of estate|1,00,000|16,500|-83,500|
|7.|Funeral<br>expense|25,000|16,500|-8,500|
|8.|Pain<br>and<br>sufering|Nil|--|--|
|9.|Loss of love and<br>afection|1,75,000|--|-1,75,000|
|10|Loss<br>of<br>dependency|11,34,000|12,09,600|75,600|
||Total|14,36,000|**12,88,600**|-1,47,400|
In the result, the petitioners are entitled only for an amount of **Rs.12,88,600/-** (Rupees twelve lakhs eighty eight thousand six hundred) as total compensation with 9% interest per annum from the date of the petition till realisation and costs. This Court, by order dated
**MACA NO. 2691 OF 2016 ..13..**
01.09.2016, has stayed the execution of the award. The appellant insurance company shall deposit the amount as per this judgment with interest and costs before the Tribunal, within a period of two months from the date of receipt of a copy of this judgment.
The appeal is disposed of accordingly.
**Sd/MURALI PURUSHOTHAMAN JUDGE**
SB/30/05/2022
