Sakulhameed and others v. Davis P.L. and Jayaprakash and Oriental Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 21ST DAY OF FEBRUARY 2018 / 2ND PHALGUNA, 1939** **AGAINST THE AWARD IN OP(MV) NO. 1410/2011 of M.A.C.T., PALAKKAD** ## **APPELLANTS/PETITIONERS:** **-----------------------** **1 SAKULHAMEED, AGED 44 YEARS, S/O. PICHAI ROWTHER, VADAMADHURAI, KURUDAMPALAM, COVAI NORTH (TK), COIMBATORE DISTRICT, TAMIL NADU.** - **2 KUNJUMA, AGED 42 YEARS,** - **W/O. SHAKULHAMEED, VADAMDHURAI, KURUDAMPALAM, COVAI NORTH (TK), COIMBATORE DISTRICT, TAMIL NADU.** **3 DOULATHNISH S., AGED 20 YEARS, D/O. SHAKULHAMEED, VADAMDHURAI, KURUDAMPALAM, COVAI NORTH (TK), COIMBATORE DISTRICT, TAMIL NADU.** **BY ADVS.SRI.BINOY VASUDEVAN** **SMT.P.G.BABITHA** ## **RESPONDENTS/RESPONDENTS :** **-------------------------** **1. DAVIS P.L., AGE AND FATHER'S NAME NOT KNOWN, POOZHIKKAL, OLLUR,** - **G.P.ANCHERY POST, THRISSUR DISTRICT, KERALA-680 006.** **2. JAYAPRAKASH, AGED 47 YEARS,** **S/O. AYYAPPAN, MUTHUPPALLY VEEDU, PATTIKKAD POST, THRISSUR DISTRICT-680 652.** **3. THE ORIENTAL INSURANCE CO. LTD., KPN SHOPPING COMPLEX, NEAR THIRUVAMBADI TEMPLE, SHORANUR ROAD, THRISSUR- 680651.** **R3 BY ADV. SRI.VPK.PANICKER** **R1 BY ADV. SRI.RANJITH XAVIER** **R3 BY SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = =** **M.A.C.A.No.1191 of 2015(F)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 21[st] day of February, 2018_ ## **J U D G M E N T** The appellants are the petitioners in O.P.(MV) No.1410 of 2011 on the files of the Motor Accidents Claims Tribunal, _(hereinafter referred to as 'the Tribunal')_ , Palakkad and the above Original Petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the death of one 'Sahabudeen', the son of the 1[st] and 2[nd] petitioners. The 3[rd] petitioner is the sister of the said deceased Sahabudeen. 2. According to them, he met with an accident on 31.07.2011 and the accident was caused by the rash and negligent driving of the offending vehicle owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. 3. The Insurance Company opposed the said **M.A.C.A.No.1191 of 2015 (F)** ## **-: 2 :-** application, disputing the quantum of compensation claimed under various heads and cause of accident; but admitted the insurance coverage of the vehicle under the policy issued by them to the 1[st] respondent. After considering the evidence on record, the Tribunal passed impugned award granting `5,05,000/-, as compensation to the petitioners. The inadequacy of the quantum of compensation determined under various heads of claim are challenged in this appeal. 4. Heard the learned counsel for the appellants and the learned Standing Counsel for the 3[rd] respondent Insurance Company. 5. It is contended that the monthly income of the deceased determined by the Tribunal is very low and the Tribunal failed to consider the 'future prospects' of the deceased, since he was aged 21 years only at the time of accident. So also, it is **M.A.C.A.No.1191 of 2015 (F)** ## **-: 3 :-** contended that the monthly notional income determined by the Tribunal is very low. Further, it is contended that the Tribunal went wrong by taking '15' as multiplier, instead of '18', when the deceased was aged 21 years only at the time of accident. The quantum of compensation granted under the heads 'loss of estate', 'loss of love and affection' are also inadequate. 6. Per contra, the learned Standing Counsel for the 3[rd] respondent Insurance Company advanced arguments to justify the quantum of compensation determined by the Tribunal. According to the learned Standing Counsel, the quantum of compensation determined under various heads of claim is just and fair, warranting no interference in appeal. 7. In view of the arguments at the Bar, the point to be considered is, whether the quantum of compensation determined under various heads of claim **M.A.C.A.No.1191 of 2015 (F)** ## **-: 4 :-** are just and fair. 8. It is not disputed that the deceased was aged 21 years only at the time of his death and he was a 2[nd] year B.Com. student. In the absence of any evidence to prove the exact income of the deceased at the time of accident, the Tribunal is justified in taking monthly notional income for computing the 'loss of dependency'. But, at the same time, this Court finds that the Tribunal has omitted to consider 'future prospects' of the deceased, as he was aged 21 years only at the time of his death. Having regard to the long future prospects of the deceased, particularly, when he was a B.Com. degree student at the time of accident, this Court is of the view that 25% of the monthly income can be added to the monthly notional income to compute the 'loss of dependency'. 9. As rightly submitted by the learned counsel **M.A.C.A.No.1191 of 2015 (F)** ## **-: 5 :-** for the appellants, the deceased was aged 21 years at the time of accident. Therefore, the Tribunal ought to have taken '18' as multiplier, in view of the decision of the Supreme Court in _**Sarla Verma & Ors. v. Delhi Transport Corp. & Anr.**_ [(2009) 6 SCC 121]. In the above view, `6,250/- is taken as monthly income, including the 'future prospects' and '18' is taken as multiplier applicable for computing 'loss of dependency'. But, 50% of the said monthly income has to be deducted for his personal living expense, if he was alive. In the above view, the appellants are given `6,75,000/-(6,250 x 12 x 18 x 50/100) under the head 'loss of dependency'. 10. As rightly pointed out by the learned counsel for the appellants, no amount has been granted under the head 'pain and sufferings'. It is true that the deceased Sahabudeen died on the date of accident itself. But, his death occurred on the **M.A.C.A.No.1191 of 2015 (F)** ## **-: 6 :-** way to hospital. Even though after the accident he was alive for a short span of time, certainly, some amount has to be given for 'pain and sufferings' also. In the above view, `10,000/- was granted under the head 'pain and sufferings'. 11. The learned counsel for the appellants contended that `5,000/- was given for 'loss of estate' and Tribunal ought to have granted `15,000/under the head 'loss of estate', in view of the decision reported in _**National Insurance Company Limited v. Pranay Sethi and Others**_ [2017(5) KHC 350 (SC)]. 12. On the other hand, the learned Standing Counsel for the 3[rd] respondent Insurance Company pointed out that the Tribunal went wrong by granting `25,000/- towards 'funeral expenses' instead of `15,000/-, in view of the decision of the Supreme Court in _**Pranay Sethi**_ 's case (supra). **M.A.C.A.No.1191 of 2015 (F)** ## **-: 7 :-** 13. Having regard to the above submissions raised by both counsel, the amount granted under the head 'loss of estate' would stand enhanced to `15,000/- and the amount granted under the head 'funeral expenses' will stand reduced to `15,000/-. Thus, the total compensation payable to the appellants is `7,40,000/- (10,000 + 25,000 + 15,000 + 6,75,000 + 15,000). The additional compensation also will carry 9% interest from the date of petition till the date of realisation. All other findings of the Tribunal will stand undisturbed and operative. This Motor Accident Claims Appeal is allowed accordingly to the above extent. Sd/- **K. HARILAL** **JUDGE** DST //True copy// P.A. To Judge