Sidheeq and others v. Samsuddeen and Alikutty and The HDFC ERGO General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943 MACA NO. 2146 OF 2011** **AGAINST THE AWARD IN OPMV 1500/2010 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE,** ## **APPELLANTS/PETITIONERS:** - **1 SIDHEEQ, S/O MUHAMMED,AGED 40 YEARS, PULIKUNNUMMAL,, (NOW RESIDING AT THATTARAPOYIL HOUSE,, THAMARASSERY P.O,RAROTH AMSOM DESOM,, KOZHIKODE)** - **2 AYISHA W/O.SIDHEEQ,, AGED 36 YEARS, SAME ADDRESS** - **3 MUBASHIRA D/O.SIDHEEQ,, AGED 13 YEARS,D/B 16-3-1997, SAME ADDRESS** - **4 MUBEENA D/O.SIDHEEQ,, AGED 11 YEARS,D/B 21-4-1998 SAME ADDRESS** - **5 RAIHANA, D/O.SIDHEEQ AGED 7 YEARS,D/B 19-1-2003 SAME ADDRESS BY ADV SRI.K.A.SALIL NARAYANAN** ## **RESPONDENTS/RESPONDENTS:** - **1 SAMSUDDEEN , S/O.ABDU RAHIMANKUTTY, KAVIL HOUSE,MUTHAMBALAM,, MANIPURAM,KODUVALLY AMSOM,KOZHIKODE 673 580** - **2 ALIKUTTY, S/O.IMBICHAMMED PALAKUNNUMMAL HOUSE,, KODUVALLY, KOZHIKODE 673 586** - **3 THE HDFC ERGO GENERAL INSURANCE CO.LTD KANNUR ROAD,CALICUT 673 001 BY ADV SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2146/2011 -:2:- Dated this the 1[st] day of September, 2021 ## **J U D G M E N T** The appellants were the petitioners in O.P. (MV) No.1500/2010 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed a claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the death of 'Rashid @ Muhammed Rashid’(deceased) - the son of the appellants 1 and 2 and the sibiling of the appellants 3 to 5. The appellants had averred in the claim petition that the deceased while travelling as pillion on a motorcycle riden by Ashik @ Ashik Muhammed on 18.07.2009 from Andona to Koduvally, a bus bearing registration No.KL-12B- M.A.C.A.No.2146/2011 -:3:- 2757 (Bus) driven by the 1[st] respondent in a rash and negligent manner hit the motorcycle. The deceased was thrown on the road and sustained fatal injuries and lost his life on the same day. The deceased was 15 years of age and was a brillant plus one student. The appellants lost the company, love and affection of the deceased. The 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the bus. Hence, the appellants claimed a total compensation of Rs.21,56,000/- from the respondents, which was limited to Rs.7,50,000/-. 3. The respondent Nos.1 and 2 did not contest the proceedings and were set-exparte. 4. The third respondent filed a written statement admitting that the bus had a valid insurance policy. However, the negligence on the part of the 1[st] respondent was disputed. 5. The appellants produced and marked M.A.C.A.No.2146/2011 -:4:- Exhibits A1 to A4 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the 3[rd] respondent an amount of Rs.1,54,500/- with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.1000/-. 7. Dissatisfied with the quantum of compensation, the petitioners are in appeal. 8. Heard; Sri. Salil Narayanan K.A., the learned counsel appearing for the appellants/petitioners and Sri.K.B. Ramanand, the learned counsel appearing for the third respondent /insurer. 9. The sole question that arises for consideration in this appeal is whether the quantum M.A.C.A.No.2146/2011 -:5:- of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and Liability** 10. Ext.A4 charge-sheet filed by the Koduvally Police in Crime No.221/2009 before the Judicial First Class Magistrate Court-I, Thamarassery, proves that the accident occurred due to the negligence of the 1[st] respondent. Undisputedly, the bus was owned by the 2[nd] respondent and insured with the 3[rd] respondent. Therefore, it is the third respondent who is to indemnify the liability of the 2[nd] repondent to pay the compensation amount arising out of the accident. ## **Compensation for loss due to dependency** 11. The appellants had stated that the deceased was born on 10.01.1994. Therefore, he had completed the age of 15 years. The appellants had not stated the montly income of the deceased in M.A.C.A.No.2146/2011 -:6:- the claim petition. The Tribunal fixed the notional income of the deceased at Rs.15000/-. per annum and applied the multiplier of ‘15’ but deducted 50% of the amount towards the personal living expenses of the deceased. 12. In **Rajendra Singh V. National Insurce Company Ltd** [2020 (4) KLT 6(SC], the Honourable Supreme Court has fixed the notional income of a 12 year old student at Rs.3000/- per month and applied the multiplier at ‘15’, but deducted ½ of the compensation towards the personal living expenses of the deceased student. 13. Following the parameters in the above cited decision, and considering the fact that the deceased in the instant case was 16 years of age, I am of the opinion that the compenation for loss of dependancy can be re-fixed at Rs.2,70,000/- instead of Rs.1,12,500/- awarded by the Tribunal. M.A.C.A.No.2146/2011 -:7:- ## **Coventional Heads of compensation** 14. In clause (viii) of paragraph 61 of **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)] , the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for compensation under the conventional heads namely, 'funeral expenses', 'loss of estate' and 'loss of consortium' at Rs.15,000/-, Rs.15,000/- and Rs.40,000/-, respectively. 15. In the instant case, the Tribunal has only awarded an amount of Rs.3,000/- towards 'funeral expenses', and Rs.10,000/- for 'loss of estate'. 16. Following the benchmark in **Pranay Sethi** (supra), I enhance the compensation for 'funeral expenses' by a further amount of Rs.12,000/- and compensation for 'loss of estate' by a further amount of Rs.5,000/-. M.A.C.A.No.2146/2011 -:8:- 17. As the appellants 1 and 2 were the parents of the deceased, I hold that they are entitled for compensation under the head ‘loss of consortium’. Accordingly, I award an amount of Rs.40,000/- each to the appellants 1 and 2 under the said head, totalling to an amount of Rs.80,000/- ## **Loss of love and afection and pain and suferings:** 18. The Tribunal has awarded an amount of Rs.10,000/- each under the heads 'pain and sufferings' and 'loss of love and affection'. 19. In **New India Assurance Company Ltd. v. Somwati & Ors.** [2020(9)SCC 644], the Hon'ble Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount can be awarded under the head 'loss of love and affection', as it is amount to duplication of M.A.C.A.No.2146/2011 -:9:- compensation. Similarly, **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and Others** [2020(3)KHC 760], the Hon'ble Supreme Court has held that in the case of death, no amount can be awarded under the head 'pain and sufferings'. Accordingly, I set aside the amount of Rs.20,000/- awarded by the Tribunal under the aforesaid heads. 20. With respect to the compensation awarded under the heads 'transportation expenses, 'damage to clothing' and treatment expenses, I find the same to be reasonable and just. 21. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the M.A.C.A.No.2146/2011 -:10:- ## table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal<br>(in<br>rupees)|Amounts<br>modifed and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transport|3,000|3,000| |2|Damage to<br>Clothing|1000|1000| |3|Treatment<br>expenses|5000|5000| |3|Funeral expenses|3,000|15,000| |4|Pain and suferings|10,000|Nil| |5|Loss of love and<br>afection|10,000|Nil| |6|Loss of estate|10,000|15,000| |7|Loss<br>of<br>consortium|Nil|80,000| |8|Loss of<br>dependency|1,12,500|2,70,000| ||**Total**|**1,54,500**|**3,89,000**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.2,34,500/-** with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit and cost of M.A.C.A.No.2146/2011 -:11:- Rs.3,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and costs within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellants in the ratio of 35:35:10:10:10 and in accordance with law. All pending interlocutory applications will stand closed. SD/- ## **C.S.DIAS,JUDGE** rmm