High Court of KeralaSingle Judge2022-10-21Appeal allowed; enhanced compensation of Rs.5,0...

SIVASANKARAN v. NAUSHAD P. and Others

Case / Petition Number:MACA NO. 2988 OF 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Basant Balaji
Judgment Date: 2022-10-21
Court Decision / Holding: In the result, the appeal is allowed and the appellants are entitled to an amount of Rs.5,06,500/- (Rupees five lakh six thousand five hundred only). All the findings entered by the Tribunal stand confirmed. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 8% per annum from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated, however if the Insurance Company fails to deposit the amount as directed, interest shall run at the rate ordered by the Tribunal from the date of petition.
Final Disposition: Appeal allowed; enhanced compensation of Rs.5,06,500 payable; tribunal findings confirmed; insurer to deposit enhanced amount via NEFT/RTGS; interest conditions as stated.

Parties to the Case

Appellants / Petitioners

SIVASANKARAN
HYMAVATHI V.V.
SHYMA V.V.
HARSH A V.C.

Respondents

NAUSHAD.P
MRS. FATHIMA SHABANA
THE NATIONAL INSURANCE CO. LTD

Legal Representation & Advocates

Counsels for Petitioners

• SRI.K.RAJESH SUKUMARAN

Counsels for Respondents

• SRI.GEORGE CHERIAN SR.
• SMT.LATHA SUSAN CHERIAN
• SMT.K.S.SANTHI

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal arising from O.P.(M.V.) No.291 of 2010 before the Motor Accidents Claims Tribunal, Thalassery, challenging an award for the death of Harish, a 14-year-old minor, in a road accident on 21.12.2009 on the National Highway near Kalarivathukkal. The car, KL-14-E/1942, driven by the first respondent in a rash and negligent manner, struck the bicycle on which Harish rode, causing fatal injuries. Harish died on 24.12.2009 despite medical treatment. The Tribunal awarded Rs. 2,91,500 as total compensation, including heads such as loss of dependency, funeral expenses, and loss of estate. The appellants (parents and sisters of the deceased) contended that the compensation was inadequately computed and sought enhancement. They relied on Supreme Court precedents to compute income for a minor and the appropriate multiplier, and on decisions addressing loss of consortium and funeral expenses for determine higher sums. The Respondents contested negligence attribution, the car’s liability, and insurance liability, with arguments that the bike rider or others could be responsible and that liability issues require resolution with ownership/transfer details. The High Court allowed the appeal in part, enhancing the compensation to Rs. 5,06,500 beyond the Tribunal’s award, confirmed findings, and directed NEFT/RTGS payment with eligible interest, while retaining the Tribunal’s other conclusions.

Provisions of Law Cited

Motor Vehicles ActSecond Schedule of the Motor Vehicles Act

Legal Doctrines & Maxims

Principle of just compensation under the Motor Vehicles Act
Loss of dependency principle for minor victims
Loss of consortium for parents under Magma General Insurance Co. Ltd. v. Nanu Ram and National Insurance Co. Ltd. v. Pranay Sethi
Multiplier principle for minors (Kurvan Ansari alias Kurvan Ali and another v. Shyam Kishore Murmu and another)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the Tribunal’s compensation award for Harish’s death is grossly inadequate. They rely on Supreme Court precedents to fix the minor’s monthly income higher (Rs.10,000 as per V. Mekala v. M. Malathi) even though Harish was aged 14; using a multiplier of 15 (Kurvan Ansari alias Kurvan Ali) and deducting half for personal expenses, they compute loss of dependency at Rs.6,30,000. They further rely on Magma General Insurance Co. Ltd. v. Nanu Ram and National Insurance Co. Ltd. v. Pranay Sethi to award Rs.40,000 per parent plus 10% increases every three years for loss of consortium (total Rs.88,000). For funeral expenses and loss of estate, they advocate Rs.16,500 each, based on Pranay Sethi. The total enhanced claim proposed is Rs.7,51,000, with interest and NEFT/RTGS transfer, and with set-off for any already paid amounts. They seek directions to ensure prompt payment by the insurer and to prevent loss of interest on delayed enhancement.

Contentions of Respondents

The respondents contend that the first respondent’s rash and negligent driving was not necessarily the sole cause; they argue that the bike rider’s negligence and other issues may contribute to the accident. They maintain that ownership transfers and insurance liability need to be viewed in light of the time of the accident (9.8.2009 transfer and policy validity 09.01.2009–08.01.2010). The insurer denies liability in the absence of clear proof of causal connection, and the car owner argues non-liability due to transfer timing. They emphasize that the Tribunal’s factual findings should not be disturbed beyond established law, and caution against over-application of contemporary precedents without respect to the facts and statutory provisions.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
V. Mekala v. M. Malathi and another	(2014) 11 SCC 178	Positive	Cited to justify fixing monthly income for a minor (Rs.10,000) and applied to determine Rs.7,000 for the deceased minor.
Kurvan Ansari alias Kurvan Ali and another v. Shyam Kishore Murmu and another	(2022) 1 SCC 317	Positive	Used to justify multiplier of 15 for a 14-year-old deceased.
Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram and Others	(2018) KHC 6697	Positive	Cited for loss of consortium to parents; supports Rs.40,000 per parent plus 10% increase.
National Insurance Co. Ltd v. Pranay Sethi	(2017 (4) KLT 662 (SC))	Positive	Cited for funeral expenses and loss of estate principles; 10% increases every three years.
Pranay Sethi (supra)	(2017 (4) KLT 662 (SC))	Positive	Referred to for escalation and heads such as funeral expenses and loss of estate.

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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 BASANT BALAJI`** ``` FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944 ``` ``` MACA NO. 2988OF 2016 ``` ``` OPMV 291/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY APPELLANT/S: ``` ``` 1 SIVASANKARAN AGED 55 YEARS S/O. K.V. KRISHNAN, AGED 55 YEARS, ARMY SEVICE. VAYAL VEETTIL HOUSE, VALAPATTANAM, KANNUR-670010 2 HYMAVATHI V.V. AGED 49 YEARS D/O. KANNAN, AGED 49 YEARS, VAYAL VEETTIL HOUSE, VALAPATTANAM, KANNUR-670010 3 SHYMA V.V. AGED 22 YEARS D/O. SIVASANKARAN, AGED 22 YEARS, VAYAL VEETTIL HOUSE, VALAPATTANAM, KANNUR-670010 4 HARSHA V.C. AGED 22 YEARS D/O. SIVASANKARAN, AGED 22 YEARS, VAYAL VEETTIL HOUSE, VALAPATTANAM, KANNUR-670010 BY ADV SRI.K.RAJESH SUKUMARAN ``` ## **`RESPONDENT/S:`** ``` 1 NAUSHAD.P AGED 37 YEARS S/O. MUHAMMED P. AGED 37 YEARS, RESIDING AT PUTHUTHOTTIL HOUSE, MEENADATHUR P.O., TIRUR, MALAPPURAM. (DRIVER OF THE ALTO CAR BEARING REG. NO. KL-14/E-1942) 2 MRS. FATHIMA SHABANA D/O. MOIDU. K.K. HOUSE NO. XV/4 FO CHEMMANAD NAYA BAZAR, MELAPARAMBA, KALANAD P.O., KASARGOD. (OWNER ``` ``` MACA NO. 2988 OF 2016 ``` -2- ``` OF THE ALTO CAR BEARING REG. NO. KL-14/E-1942) ``` ``` 3 THE NATIONAL INSURANCE CO. LTD P.B. NO. 40, BANK ROAD, OPP. SAFIRE TOURIST HOME, KANNUR- 670001. (INSURER OF THE ALTO CAR BEARING REG. NO. KL-14/E-1942) (POLICY NO. 60064284) (VALIDITY FORM 09.01.2009 TO 08.01.2010) ``` ``` BY ADVS. SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2988 OF 2016 ``` -3- ## **JUDGMENT** (Dated this the 21[st] day of October 2022) Petitioners in O.P.(M.V.) No.291 of 2010 on the files of the MACT, Thalaserry, have filed this appeal claiming enhancement of compensation for the death of a minor named Harish in an accident on 21.12.2009. 2. While the deceased was peddlling his bicycle through national highway near Kalarivathukkal, a car bearing registration no.KL-14-E/1942 driven by the first respondent in a rash and negligent manner which came from Kasargod side to Kannur side, hit against the bicycle and the deceased was thrown out to the road and he sustained fatal injuries. Though he was taken to AKG hospital Kannur and referred to Pariyaram medical college and from there to Unity Health Complex, Mangalore, he succumbed to injuries on 24.12.2009. The accident occurred due to the rash and ``` MACA NO. 2988 OF 2016 ``` -4- negligent driving of the first respondent. The 2[nd] respondent being the owner and 3[rd] respondent being the insurer, are liable to pay the compensation. 3. Respondent Nos.1 to 3 filed written statement denying the allegations in the petition. First respondent contended that the accident happened not due to negligence on his part. A motor bike, which was rashly and negligently ridden, hit the bicycle of the deceased and the Alto car. As such, the rider, owner and the insurer of the motor bike are necessary parties to the claim. 4. The 2[nd] respondent filed a written statement admitting that he is the owner of the car up to 9.8.2009 and it was transferred in the name of 1[st] respondent on 10.8.2009. Therefore, he is not liable to pay the compensation. 3[rd] respondent admitted the insurance policy ``` MACA NO. 2988 OF 2016 ``` of the offending car but denied the liability to pay the compensation as the accident happened due to the negligence on the side of the deceased himself. 5. The Tribunal, on an appreciation of the facts and circumstances of the case and relying on Exts.A1 to A13 awarded a total compensation of Rs.2,91,500/- with interest at the rate of 9% per annum from the date of petition till realisation. 6. The Tribunal, for calculating the loss of dependency, took the monthly income of the deceased as Rs.15,000/- per annum and calculated the loss as per the second schedule of the Motor Vehicles Act. The Apex Court in the decision reported in **V. Mekala v. M. Malathi and another [(2014)** **11 SCC 178** ] held that for computation of just and reasonable compensation, Rs.10,000/- can be taken as ``` MACA NO. 2988 OF 2016 ``` monthly income of a minor brilliant student. Relying on the said decision, the monthly income of the deceased is taken as Rs.7,000/-. the deceased was aged 14 years and the proper multiplier to be adopted is 15, as per the decision reported in **Kurvan Ansari alias Kurvan Ali and another v. Shyam Kishore Murmu and another [(2022) 1 SCC 317].** Since the deceased was a minor and a non-earning member, half of the income has to be deducted towards personal expenses. So the loss of dependency to be calculated as Rs.7,000x15 12x1/2 = Rs.6,30,000/-. 7 . The appellants/claimants are the parents and sisters of the deceased. The Tribunal did not award any compensation under the head of loss of consortium. The Apex Court in **Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram and Others (2018 KHC 6697)** and **National Insurance Co.Ltd v. Pranay Sethi [(2017(4) KLT 662 (SC)]** has held that the parents are entitled to Rs.40,000/each plus 10% in every three years. Thus, an amount of ``` MACA NO. 2988 OF 2016 ``` -7- Rs.88,000/- is awarded under the head of loss of consortium. 8. For funeral expenses, the Tribunal has awarded only Rs.2,000/-. The minimum amount that has to be awarded under funeral expenses as per decision reported in **Pranay Sethi (supra)** is Rs.15,000 plus 10% increase in every three years. Thus the appellants are entitled to an amount of Rs.16,500/- under funeral expenses. 9. Towards loss of estate also, the appellants were awarded only Rs.2,500/-. As per the decision reported in **Pranay Sethi** (supra), Rs.15,000 plus 10% increase in every three years can be awarded under the head. Accordingly the appellants are entitled to an amount of Rs.16,500/- under the head loss of estate. Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl. No.|Head of Claim|Amt. Awarded by Tribunal (Rs.)|Amt. Enhanced in appeal (Rs.)| |---|---|---|---| |1|Loss of dependency|2,40,000|6,30,000| |2.|Loss of consortium|0|88,000| ``` MACA NO. 2988 OF 2016 ``` -8- |3|Funeral expenses|2,000|16,500| |---|---|---|---| |4|Loss of estate|2,500|16,500| ||Total|2,44,500|7,51,000| ||Amount enhanced Rs.7,51,000-2,44,500**=** **Rs.5,06,500/-**||| Amount enhanced Rs.7,51,000-2,44,500 **= Rs.5,06,500/-** In the result, the appeal is allowed and the appellants are entitled to an amount of Rs.5,06,500/- (Rupees five lakh six thousand five hundred only). All the findings entered by the Tribunal stand confirmed. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 8% per annum from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time ``` MACA NO. 2988 OF 2016 ``` stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest shall run at the rate ordered by the Tribunal from the date of petition. sd **BASANT BALAJI, JUDGE** _dl/_