High Court of KeralaSingle Judge2022-01-06Appeal allowed; enhanced compensation; liabilit...

Saidalavi and Arifa v. Mohammedali, Shamsudheen and The New India Assurance Co. Ltd.

Case / Petition Number:MACA 1568-2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2022-01-06
Court Decision / Holding: Appeal allowed; the third respondent to deposit Rs.4,57,844/- with interest and proportionate cost before the Tribunal within sixty days from receipt of a certified copy of the judgment. Once deposited, the amount shall be disbursed to the appellants in equal shares in accordance with law. The judge increased the loss of dependency to Rs.4,50,000 and held Rs.1,21,000 under conventional heads (funeral expenses, loss of estate, and loss of consortium), resulting in a total award of Rs.5,71,000 (enhancement of Rs.4,57,844 over the Tribunal’s figure). The decision applies Kurvan Ansari and Kishan Gopal for minor notional income and multiplier, and adopts Pranay Sethi with the clarified timing on escalation, along with supportive 2011–2013 judgments, to determine the quantum.
Final Disposition: Appeal allowed; enhanced compensation; liability accepted against the insurer; deposit directed within sixty days; amounts to be disbursed equally to appellants.

Parties to the Case

Appellants / Petitioners

Saidalavi
Arifa

Respondents

Mohammedali
Shamsudheen
The New India Assurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• K. Abdul Jawad

Counsels for Respondents

• Lal K. Joseph
• KKM. Sherif
• A. A. Ziyad Rahman

Case Synopsis & Summary

This High Court of Kerala heard MACA 1568 of 2012 filed by Saidalavi and Arifa against Mohammedali, Shamsudheen and The New India Assurance Co. Ltd. challenging the Motor Accidents Claims Tribunal, Manjeri’s award in OP (MV) No. 334/2009 following the death of eight-year-old Ashiq Suhail on 16.10.2008 after an auto-rickshaw collision in Tirurangadi. The Tribunal granted Rs. 1,13,156 as compensation with liability primarily on the insurer as indemnifier. The appellants argued that the amount was inadequate and that the notional income of a minor should be fixed higher, referencing Kurvan Ansari and Kishan Gopal to fix the notional income at Rs.30,000 and multiplier 15. They also invoked conventional heads of compensation, following Pranay Sethi and subsequent Supreme Court decisions, for escalation, funeral expenses, loss of estate and loss of consortium. The respondents did not contest liability of the driver; however, the insurer defended the deficiency of compensation. The High Court, after considering the cited precedents, augmented the dependency loss to Rs.4,50,000 and held Rs.1,21,000 under conventional heads (funeral expenses, loss of estate, and loss of consortium), totaling Rs.5,71,000. It directed the insurer to deposit Rs.4,57,844 with interest within 60 days, to be disbursed to the appellants in equal shares, thereby allowing the appeal and refining the application of Kurvan Ansari/Kishan Gopal doctrine and Pranay Sethi-based escalation.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Notional income for minor children fixed at Rs.30,000 and multiplier 15 (Kurvan Ansari v. Shyam Kishore Murmu; Kishan Gopal & Anr. v. Lala & Others)
Conventional heads: funeral expenses Rs.15,000; loss of estate Rs.15,000; loss of consortium Rs.40,000; 10% escalation every three years (Pranay Sethi)
Escalation timing: 10% escalation on conventional heads after every three years from pronouncement in 2017 (N. Jayasree v. Cholamandalam MS General Insurance Co Ltd; Rasmita Biswal v. Divisional Manager, National Insurance Co., Ltd)
Nagappa v. Gurudayal Singh; Rajesh v. Rajbir Singh: Authority for awarding higher compensation beyond the claim petition

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants challenged the Tribunal’s quantum as inadequate and pressed for applying the notional income framework for minors at Rs.30,000 with a 15-year multiplier, as laid down in Kurvan Ansari and Kishan Gopal. They urged enhancement of conventional heads following Pranay Sethi (funeral expenses, loss of estate, loss of consortium) and its 10% escalation principle, arguing for appropriate compensation to reflect loss and dependence. They sought a higher overall award (approximately Rs. 4.5–5.5 lakhs) based on these principles, beyond the Tribunal’s Rs. 1,13,156. They also relied on Nagappa and Rajesh for enabling higher awards beyond the petition. The aim was to secure fair compensation for the death of a minor due to negligent driving.

Contentions of Respondents

The respondents argued liability rested with the driver after a negligent act; they contended the insurer’s liability stood as indemnifier. Evidence did not effectively contest the charge sheet (Exhibit A4) which indicated driver negligence. They defended that compensation should be limited to the amount established by the Tribunal, resisting attempts to dramatically elevate heads of damages. The insurer did not contest liability per se but resisted excessive quantum; the core defense was the adequacy and method of quantum calculation.

Cited Precedents (7)

Case Name	Citation	Treatment	Explanation
Kurvan Ansari v. Shyam Kishore Murmu	(2021) SCC OnLine SC 1060	Positive	Court follows the Kurvan Ansari decision on notional income for minors (Rs.30,000) and multiplier (15).
Kishan Gopal & Anr. v. Lala & Others	(2014) 1 SCC 244	Positive	Court applies Kishan Gopal to fix minor notional income and multiplier, consistent with Kurvan Ansari.
National Insurance Co. Ltd v Pranay Sethi	(2017) 16 SCC 680	Partly Overruled / Limited	Court acknowledges Pranay Sethi for conventional heads but restricts its 10% escalation timing to post-2017 pronouncement, not for earlier accidents.
N. Jayasree v. Cholamandalam M.S, General Insurance Co Ltd.	(2021) SCC Online SC 967	Positive	Cited for 10% escalation on conventional heads; supports applying escalation rules.
Rasmita Biswal and others v. The Divisional Manager, National Insurance Co., Ltd and another	(2021) SCC Online SC 1193	Positive	Cited for interpretation of escalation on conventional heads.
Nagappa v. Gurudayal Singh	2003 (1) KLT 115 SC	Positive	Used to justify awarding more compensation than petition petition if warranted.
Rajesh v. Rajbir Singh	2013 (3) KLT 89 SC	Positive	Supportive authority for higher awards beyond petition.

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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 C.S.DIAS** **THURSDAY, THE 6[TH] DAY OF JANUARY 2022 / 16TH POUSHA, 1943 MACA NO. 1568 OF 2012** **AGAINST THE AWARD DATED 30.04.2012 IN OPMV 334/2009 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANTS/PETITIONERS:** 1 SAIDALAVI AGED 35 YEARS S/O.LATE ALASSAN, MELAYIL HOUSE, POOTHAMKUNHI, A.R.NAGAR P.O., KODUVAYOOR, MALAPPURAM DISTRICT. 2 ARIFA AGED 30 YEARS W/O.SAIDALAVI, MELAYIL HOUSE, POOTHAMKUMHI, A.R.NAGAR P.O., KODUVAYOOR, MALAPPURAM DISTRICT. BY ADV SRI.K.ABDUL JAWAD ## **RESPONDENTS/RESPONDENTS:** 1 MOHAMMEDALI S/O.KUNHIMOHAMMED, CHOLAKKAPARAMBIL HOUSE, N.K.ROAD, TIRURANGADI P.O., MALAPPURAM DISTRICT (DRIVER)-676505. 2 SHAMSUDHEEN S/O.ABDURAHMAN KUTTY, KUNNUMMAL HOUSE, PARAPPANANGADI P.O., MALAPPURAM DISTRICT (RC OWNER)-676505. 3 THE NEW INDIA ASSURANCE CO.LTD. VRIKKODAN BUILDING, NILAMBUR ROAD, MANJERI (INSURER)-676505. BY ADVS. SRI.LAL K.JOSEPH SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 06.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1568-2012 -:2:- Dated this the 6[th] day of January,2022 ## **J U D G M E N T** The appellants were the petitioners in O.P (MV)No.334/2009 on the file of the Motor Accidents Claims Tribunal, Manjeri. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation on account of the death of their eight year old son named Ashiq Suhail @ Ashif Suhail(deceased). It was their case that, on 16.10.2008, while the deceased was returning from school, he was hit by an autorickshaw bearing registration No. KL 10 X 7823 at Tirurangadi, driven by the first respondent in a rash and negligent manner. The deceased sustained serious injuries and lost his life on the 10[th] day of the accident. The second M.A.C.A.No.1568-2012 -:3:- respondent was the owner and the third respondent was the insurer of the autorickshaw. Hence, the appellants claimed a compensation of Rs.2,36,000/from the respondents, which claim was limited to Rs.2,00,000/-. 3. The respondent Nos.1 and 2 did not contest the proceedings and were set ex parte. 4. The third respondent had filed a written statement, admitting that the autorickshaw had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the deceased. 5. The appellants produced and marked Exhibits A1 to A8(e) in evidence. The third respondent produced the charge sheet, which was marked as Exhibit. B1 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in M.A.C.A.No.1568-2012 -:4:- part, by permitting the appellants to recover from the third respondent an amount of Rs.1,13,156/- with interest and proportionate cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri. K. Abdul Jawad, the learned counsel appearing for the appellants/petitioners and Sri.Lal K. Joseph, the learned counsel appearing for the third respondent/insurer. 9. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 10. Exhibit A4 charge sheet filed by the police substantiates that the accident occurred due to the negligence of the first respondent. The respondents M.A.C.A.No.1568-2012 -:5:- have not let in any evidence to discredit Exhibit.A4 charge sheet. Similarly, the third respondent has not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident. 11. The deceased was aged 8 years old at the time of his accident. The Tribunal had awarded a consolidated compensation of Rs.1,13,156/-. 12. In **Kurvan Ansari Vs Shyam Kishore Murmu** [(2021) SCC OnLine SC 1060] and **Kishan Gopal & Anr. v. Lala & Others** [(2014)1 SCC 244], the Hon’ble Supreme Court has fixed the notional income of minor children at Rs.30,000/- and adopted the multiplier of ‘15’. 13. In the light of the law laid down in **Kurvan Ansari** and **Kishan Gopal** (supra), I am of the firm view that the same yardstick has to be followed in the M.A.C.A.No.1568-2012 -:6:- present case. Therefore, I award the appellants an amount of Rs.4,50,000/- as consolidated compensation towards loss of dependency, instead of Rs.2,00,000/awarded by the Tribunal. ## **Conventional heads of compensation** 14. In clause (viii) of paragraph 61 of **National Insurance Co.Ltd v Pranay Sethi** [(2017) 16 SCC 680], the Honourable Supreme Court has held that the dependents of the deceased are entitled to compensation under the conventional heads viz., funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/and Rs.40,000/respectively. It is also observed that the conventional heads of compensation have to be enhanced every three years by 10%. 15. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd.** [(2021) SCC Online SC 967] and **Rasmita Biswal and others vs. The** M.A.C.A.No.1568-2012 -:7:- **Divisional Manager, National Insurance Co., Ltd and another** [(2021) SCC Online SC 1193], the Hon'ble Supreme Court has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accidents. Thus, it is to be interpreted and inferred that the escalation of 10% as per **Pranay Sethi** (supra) is to be awarded after every three years from the date of pronouncement of the judgment, which was rendered in the year 2017, and not for accidents that occurred three years after 2017. 16. In view of the law laid down in **Pranay Sethi** , **N.Jayasree** and **Rasmita Biswal and others** (supra) **,** I hold that the appellants are entitled to an amount of Rs.44,000/- each under the head ‘loss of consortium’, totalling to an amount of Rs.88,000/- and Rs.16,500/each under the heads ‘funeral expenses’ and ‘loss of estate’, totalling to an amount of Rs.33,000/-, i.e., a M.A.C.A.No.1568-2012 -:8:- grand total of Rs.1,21,000/- under the ‘conventional heads’ of compensation. Thus, the appellants are entitled to a total amount of Rs.5,71,000 – Rs.1,13,156 awarded by the Tribunal. Hence, the appellants are entitled to an enhancement of Rs.4,57,844/- with interest at the rate of 7% per annum from the date of petition till the date of deposit, and proportionate cost. 17. Although the appellants had claimed a compensation of Rs.2,00,000/- I have awarded them more compensation than what is claimed in the claim petition following the ratio in **Kurvan Ansari** and **Kishan Gopal** (supra). The said course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh [2003 (1) KLT 115 SC] and Rajesh v. Rajbir** . **Singh [2013 (3) KLT 89 SC]** In the result, the appeal is allowed by directing the third respondent to deposit an amount of Rs.4,57,844/- with interest and proportionate cost M.A.C.A.No.1568-2012 -:9:- before Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellants in equal shares and in accordance with law. SSd/ ## **C.S.DIAS,JUDGE** rmm/06/01/2022