Shamsudheen, Abida Beevi and Mohammed Ukkash (minor) v. National Insurance Company Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** **MACA.No.1015 OF 2012** **AGAINST THE AWARD IN OP(MV)NO. 1508/2005OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM DATED 14-06-2010** ## **APPELLANTS/PETITIONERS:** - **1 SHAMSUDHEEN F/O.LATE SOFIYA, MAHINMANZHIL AKKOLILCHERRY MAYYANAD P.O KOLLAM** - **2 ABIDA BEEVI W/O.SHAMSUDHEEN MAHINMANZHIL AKKOLICHERRY MAYYANAD P.O KOLLAM** - **3 MOHAMMED UKKASH(MINOR) AGED 10 YEARS, (REPRESENTED BY 1ST PETITIONER AS A GUARDIAN)** **BY ADVS. SRI.PRATHEESH.P SMT.CHITHRA S.BABU** ## **RESPONDENT/3RD RESPONDENT:** **THE DIVISIONAL MANAGER M/S.NATIONAL INSURANCE CO.LTD DAMODAR CHAMBERS STATUE JUNCTION THRIPPUNITHURA 682301** **R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021, ALONG WITH MACA.538/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos. 538 & 1015 OF 2012** 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** **MACA.No.538 OF 2012** **AGAINST THE AWARD IN OP(MV)NO. 1508/2005 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM DATED 14-06-2010** ## **APPELLANT/3RD RESPONDENT:** **NATIONAL INSURANCE COMPANY LTD TRIPUNITHURA NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI-35.** **BY ADV. SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** **1 SHAMSUDHEEN MAHIN MANZHIL, AKKOLICHERRY, MAYYANADU P.O., KOLLAM DISTRICT, PIN-691320. 2 ABITHA BEEVI WO.SHAMSUDHEEN MAHIN MANZHIL, AKKOLICHERRY, MAYYANADU P.O., KOLLAM DISTRICT, PIN-691320. 3 MUHAMMED UKKASH (MINOR) REPRESENTED BY HIS GUARDIAN IST RESPONDENT SHAMSUDHEEN, MAHIN MANZHIL, AKKOLICHERRY, MAYYANADU P.O., KOLLAM DISTRICT, PIN-691320.** **R1 BY ADVS. SMT.CHITHRA.S.BABU SRI.PRATHEESH.P** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021, ALONG WITH MACA.1015/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos. 538 & 1015 OF 2012** 3 ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA Nos.538 & 1015 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of April, 2021 ## **COMMON JUDGMENT** As these appeals arise out of the award in OP(MV)No.1508 of 2005 on the file of the II Additional Motor Accident Claims Tribunal, Kollam, between the same parties, the appeals are being disposed of by this common judgment. The parties are, for the sake of convenience and wherever their contest are required, referred to as per their status in the original petition. 2. The facts in brief, relevant for the determination of the appeal, are: on 13.12.2004 while Smt.Sofia (deceased), the daughter of the petitioners 1 and 2 and the mother of the 3[rd] petitioner was travelling as a pillion rider on motorcycle bearing registration No. KL 07/N 611, a Bus bearing registration No. KL 07/D 3337 (offending vehicle) driven by the 2[nd] respondent in **MACA.Nos. 538 & 1015 OF 2012** 4 a rash and negligent manner and at highspeed, hit the motorcycle on which the deceased was travelling. The deceased sustained serious injuries and was rushed to the General Hospital, Ernakulam, but, unfortunately, she succumbed to the injuries on the way to the hospital. The City Traffic Police, Ernakulam registered a case against the 2[nd] respondent for the offences punishable under Sections 279, 338 and 304A of the Indian Penal Code. The offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The deceased was working as a sales girl and earning a monthly income of Rs.3,000/-. The petitioners were the dependants of the deceased. Therefore, the petitioners are entitled for compensation from the respondents 1 to 3, who are jointly and severally liable to pay the compensation, which they quantified at Rs. 4,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent filed a written statement **MACA.Nos. 538 & 1015 OF 2012** 5 denying the allegations in the claim petition. The 3[rd] respondent conceded that the offending vehicle had a valid insurance policy. However, they contended that the accident occurred due to the negligence on the part of the deceased herself. 5. The first petitioner was examined as PW1 and Exhibits A1 to A4 were marked through him in evidence. The respondents did not let in any contra evidence. 6. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the petitioners to recover an amount of Rs.3,02,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and proportionate costs from the respondents. The 3[rd] respondent was directed to pay the compensation amount with interest and costs within one month, failing which the 3[rd] respondent would have to pay interest at the rate of 9% per annum. **MACA.Nos. 538 & 1015 OF 2012** 6 7. Dissatisfied with the quantum of compensation the petitioners have filed MACA No.1015 of 2012 and aggrieved by the impugned award the 3[rd] respondent – insurance company has preferred MACA No. 536 of 2012. 8. Heard the learned counsel appearing for the appellants/petitioners and the learned counsel appearing for the respondent – insurance company. 9. The question that emanates for consideration in this appeal is whether the compensation awarded by the Tribunal is justifiable or not? 10. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and **MACA.Nos. 538 & 1015 OF 2012** 7 equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 11. Ext.A4 final report filed by the police clearly specifies the accident occurred solely due to negligence on the part of the 2[nd] respondent, who drew the vehicle in a rash and negligent manner. 12. Undisputedly, the 1[st] respondent is the owner of the offending vehicle and the 3[rd] respondent is the insurer of the offending vehicle. Therefore, the 3[rd] respondent is liable to indemnify the 1[st] respondent for any compensation that is payable. 13. The specific case of the petitioners was that the deceased was a sales girl and drawing a monthly income of Rs.3,200/-. The Tribunal fixed the notional income of at Rs.3,000/-. I find that the income fixed by the Tribunal to be reasonable, considering the fact that the accident occurred in the year 2004. **MACA.Nos. 538 & 1015 OF 2012** 8 ## **Loss of dependency with future prospects** 13. The Hon'ble Supreme Court in **Sarala Varma** **v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)] and in **Pranay Sethi** (supra) has gone on to hold that the dependants of the deceased are entitled to compensation under the head 'loss of dependency along with future prospects'. 14. In the instant case that the deceased was only 25 years of age. Therefore, the relevant multiplier is '18'. Hence, the petitioners are entitled to future prospects at the rate of 40% under the head 'loss of dependency' as held in the afore-cited decisions. In such circumstances, compensation under the head 'loss of dependency with future prospects' is re-fixed at Rs.6,04,800/- instead of Rs.2,72,000/- awarded by the Tribunal. ## **Conventional Heads** 15. In **Pranay Sethi** (supra), the Hon'ble Supreme Court has held that, the dependants of the deceased are **MACA.Nos. 538 & 1015 OF 2012** 9 entitled for compensation under conventional heads namely 'funeral expenses, loss of estate and loss of consortium' at the rates of Rs.15,000/-, Rs.15,000/- and Rs,40,000/- respectively. Following the above law, I hold that the petitioners are entitled for 'funeral expenses' at the rate of Rs.15,000/- instead of Rs.2,500/- awarded by the Tribunal, loss compensation under the head 'loss of estate' at the rate Rs.15,000/- instead of Rs.5,000/awarded by the Tribunal and filial consortium and parental consortium at Rs.40,000/- each to the petitioners, totalling to an amount of Rs.1,20,000/-. ## **Pain and suffering** 16. The Tribunal had awarded an amount of Rs.5,000/- under the head 'pain and sufferings'. In view of the law laid down in **United India Insurance Company Ltd. v Satinder Kaur @ Satwinder Kaur and others** [2020 (3) KHC 760], the petitioners are not entitled for any amount under the said head of claim. Therefore, I set aside the amount awarded by the **MACA.Nos. 538 & 1015 OF 2012** 10 Tribunal under the said head. ## **Love and affection** 17. It is seen that the Tribunal had awarded an amount of Rs.15,000/- under the head 'love and affection'. In view of the law laid down by this Court in **Kunjandy v. Rajendran** [2020(2) KLT 315], and compensation being awarded under the head 'loss of consortium', no compensation can be awarded under the head 'loss of love and affection'. Therefore, I set aside compensation awarded under the said head of claim. ## **Other heads of claim** 18. With respect to the other heads of claim namely, 'transport' and 'clothing', I find that the Tribunal has awarded reasonable and just compensation. 19. On an overall re-appreciation of the pleadings and materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the afore-cited **MACA.Nos. 538 & 1015 OF 2012** 11 decisions, I am of the firm opinion that the petitioners/appellants in MACA No.1015 of 2012 are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Transport|2,000/-|2,000/-| |2|Clothing|500|500/-| |3|Funeral expenses|2,500/-|15,000/-| |4|Pain and sufferings|5,000/-|nil| |5|Love and affection|15,000/-|nil| |6|Loss of estate|5,000/-|15,000/-| |7|Loss of consortium|nil|1,20,000/-| |8|Loss of dependency with<br>future prospects|2,72,000/-|6,04,800/-| |||3,02,000|7,57,300| In the result, the appeals are disposed of by enhancing the compensation by a further amount of Rs.4,55,300/- with interest at the rate of 7% per annum both on the original compensation as well as the enhanced compensation, after deducting 640 days i.e. the delay in filing the appeal as ordered by this Court on **MACA.Nos. 538 & 1015 OF 2012** **==> picture [13 x 7] intentionally omitted <==** 13.06.2012 in C.M.Appl. No.1250 of 2012, and proportionate costs. The respondent – insurance company in MACA No.1015 of 2015 shall deposit the enhanced compensation awarded in this appeal before the Tribunal along with interest and proportionate costs as ordered above within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability of the appellants/petitioners towards balance court fee, if any. The appellants/ petitioners would be at liberty to move the Tribunal for disbursal of the enhanced compensation in proportion and as per the conditions in the impugned award. **Sd/- C.S.DIAS,JUDGE** dlK09.04.2021