Suhara and others v. The National Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` TUESDAY, THE 11[TH] DAY OF APRIL 2023 / 21ST CHAITHRA, 1945 ``` ``` CO NO. 101 OF 2016 ``` ``` AGAINST THE AWARD DATED 29.09.2015 IN OP(MV)NO.838/2014MOTOR ACCIDENT ``` ``` CLAIMS TRIBUNAL ,KOZHIKODE ``` ## `CROSS OBJECTORS/RESPONDENTS 1,2 & 3/CLAIMANTS:` ``` 1SUHARA W/O. ABDURAHIMAN. 2NASEEBA NAZRIN (MINOR) REPRESENTED BY HER MOTHER AND NEXT FRIEND SUHARA, BOTH ARE RESIDING AT ALAPPURAYIL HOUSE, P.O. MANIPURAM, (VIA) KODUVALLY, KOZHIKODE. 3UMMU HABEEBA W/O. MUHAMMED IQBAL, RESIDING AT KIZHAKKEMOONA MANNIL, ARAMBRAM, P.O.PADANILAM, KOZHIKODE. BY ADV SRI.AVM.SALAHUDIN ``` ## `RESPONDENT/APPELLANT/3RD RESPONDENT:` ``` THE NATIONAL INSURANCE CO. LTD. 4TH FLOOR, PARCO TOWERS, P.B.NO. 207,P.M.TAJ ROAD, KOZHIKODE. ``` ``` BY ADV SMT.K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.04.2023, ALONG WITH MACA.147/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` [CO Nos.101/2016, MACA NO.147/2016] ``` ``` 2 ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 11[TH] DAY OF APRIL 2023 / 21ST CHAITHRA, 1945 ``` ## `MACA NO. 147 OF 2016` ``` AGAINST THE AWARD IN OPMV 838/2014 DATED 29.09.2015 OF MOTOR ACCIDENT ``` ``` CLAIMS TRIBUNAL ,KOZHIKODE ``` ## `APPELLANT/3RD RESPONDENT:` ``` THE NATIONAL INSURANCE CO. LTD KOZHIKODE, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ## `RESPONDENTS/CLAIMANTS:` ``` 1SUHARA W/O.ABDURAHIMAN, ALAPPURAYIL HOUSE, P.O.MANIPURAM, (VIA)KODUVALLY, KOZHIKODE. PIN-673 572. 2NASEEBA NAZRIN (MINOR), ALAPPURAYIL HOUSE, P.O.MANIPURAM, (VIA)KODUVALLY, KOZHIKODE. REPRESENTED BY HER MOTHER AND NEXT FRIEND SUHARA. PIN-673 572. 3UMMU HABEEBA W/O.MUHAMMED IQBAL, RESIDING AT KIZHAKKEMOONA MANNIL, ARAMBRAM.P.O., PADANILAM, KOZHIKODE. PIN-673 571. BY ADV SRI.AVM.SALAHUDIN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.04.2023, ALONG WITH CO.101/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` [CO Nos.101/2016, MACA NO.147/2016] ``` ``` 3 ``` ## `JUDGMENT` ``` This Appeal and Cross-Objection arise from ``` ``` the final Award of the Motor Accidents Claims Tribunal, Kozhikode ('Tribunal' for short), in OP(MV) No.838/2014. ``` `2. The afore Orginal Petition was filed by` ``` the Cross Objectors, seeking compensation of an ``` ``` amount of Rs.12,00,000/-, for the unfortunate ``` ``` death of Abdu Rahiman, the husband of the first among them - killed in a road accident on ``` ``` 22.03.2014, when the offending Autorickshaw ``` ``` knocked him down, as he was walking along the ``` ``` public road. The deceased sustained grievous ``` ``` injuries and succumbed to it thereafter; which ``` ``` constrained the Cross Objectors to file the ``` ``` Original Petition, seeking compensation. ``` ``` 3.The learned Tribunal allowed the Original ``` ## `[CO Nos.101/2016, MACA NO.147/2016]` ``` 4 ``` ``` Petition to a sum of Rs.10,25,000/-, which has now impelled the Cross Objectors to assail it as being inadequate; while, the Insurance Company - which insured the offending vehicle - has filed the afore appeal, asserting that the compensation ``` ``` awarded is excessive. ``` ``` 4.I have heard Smt. K.S. Santhi – learned ``` ``` counsel for the appellant and Smt.A.D.Divya – learned counsel appearing for the Cross Objectors. ``` ``` 5.The facts involved in this case are not ``` ``` in dispute and in fact, all are admitted, ``` ``` particularly with respect to causation of the ``` ``` accident, negligence of the driver of the ``` ``` offending vehicle and the nature of the injuries ``` ``` sustained by the deceased. The only controversy ``` ``` is as to the notional income adopted by the ``` ``` [CO Nos.101/2016, MACA NO.147/2016] ``` ``` 5 ``` ``` Tribunal in favour of the deceased and the consequential grant of compensation under the head 'Loss of Dependency' and other heads. ``` ``` 6.Smt. K.S.Santhi vehemently argued that the learned Tribunal has erred in awarding compensation under the head 'Loss of Love and Affection' and 'Pain and Suffering' to the Cross Objectors, after having granted sufficient compensation under the head 'Loss of Dependency' and relied upon United India Insurance Co.Ltd v. Satinder Kaur @ Satwinder Kaur [2020(3) KHC 760] for strength. She then pointed out that, as per National Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 662], not more than Rs.15,000/- each could have been awarded by the Tribunal under the heads 'Loss of Estate' and 'Funeral Expenses'; and that therefore, in awarding Rs.25,000/- each ``` ``` [CO Nos.101/2016, MACA NO.147/2016] ``` ``` 6 ``` ``` under these heads, it has committed error. She ``` ``` thus prayed that this appeal be allowed. ``` ``` 7.Smt.A.D.Divya – learned counsel for the ``` ``` Cross Objectors on the other hand, submitted that the learned Tribunal has egregiously committed a ``` ``` mistake in having reckoned the notional income of ``` ``` the deceased to be a mere Rs.5,000/-, when there ``` ``` is evidence on record to show that he was earning Rs.12,000/- per month, in his capacity as a 'Musliyar'. She added that the amount of ``` ``` compensation under the head 'Loss of Consortium' ``` ``` is also inadequate because all the appellants are ``` ``` entitled to Rs.40,000/- each under it. She thus ``` ``` reiteratingly prayed that this appeal be ``` ``` dismissed and Cross Objection be allowed. ``` ``` 8.I have considered the afore rival ``` ``` submissions and have also gone through the ``` ``` [CO Nos.101/2016, MACA NO.147/2016] ``` ``` 7 ``` ``` evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. ``` ``` 9.I will first deal with the adequacy of the notional income adopted by the Tribunal in favour of the deceased. No doubt, the Cross Objectors claimed that he was a 'Musliyar', earning Rs.12,000/- per month and tried to substantiate it through Ext.A5 – letter and Ext.X1 – Salary Register, which is spoken to ``` ``` about by PW1 - who was the 'Office Bearer' of the Mosque in question. However, as rightly found by the learned Tribunal, the salary of the deceased has not been proved, while the afore documents only record the figure mentioned therein to be the salary eligible to him. Obviously, the ``` ## `[CO Nos.101/2016, MACA NO.147/2016]` ``` 8 ``` ``` learned Tribunal could have done nothing more, but to have taken the notional income of the deceased. However, while doing so, it ought to have been guided by the postulations in ``` ``` Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], which mandates that, even in the case of a ``` ``` 'coolie', or a person with an unascertainable income, in the year 2014 – when the accident occurred – a minimum figure of Rs.9,500/- ought to have been reckoned. ``` ``` 10.Further, in Rajani v. Oriental Insurance Company Ltd. [2022 (5) KLT Online 1012 9SC)], the Honourable Supreme Court had then held that, in the case of a person who is not a mere 'Coolie', but with specialisation or credentials deserving a better avocation, a more robust view has to be ``` ## `[CO Nos.101/2016, MACA NO.147/2016]` ``` 9 ``` ``` taken. I, therefore, propose the notional income ``` ``` of the deceased to be Rs.10,000/- per month, which is mere Rs.500/- more than what is ``` ``` sanctioned by Ramachandrappa (supra) in the case ``` ``` of a 'Coolie'. ``` ``` 11.That said, it is without dispute, as is ``` ``` evident from Ext.A1 - FIR and Ext.A3 – Postmortem ``` ``` Certificate, that the deceased was 50 years at the time of his death. Therefore, an amount equal to 10% of his income is liable to be reckoned as ``` ``` future prospects, as per Pranay Sethi (supra). ``` ``` 12.So concluded there is great force in the ``` ``` submissions of Smt.K.S.Santhi that not more than Rs.15,000/- could have been granted by the learned Tribunal under the heads “Funeral ``` ``` Expenses” and “Loss of Estate”, as perPranay ``` ``` Sethi(supra); while, Satinder Kaur @ Satwinder ``` ## `[CO Nos.101/2016, MACA NO.147/2016]` ``` 10 ``` ``` Kaur(supra) mandates that no amount under the ``` ``` head “Loss of Love and Affection” and “Pain and Suffering” be offered, when compensation for ``` ``` “Loss of Dependency” has been fully addressed. ``` ``` 13.Finally, on the question of compensation ``` ``` for “Loss of Consortium”, there is no doubt, ``` ``` again going by Pranay Sethi (supra), that each of ``` ``` the appellants is entitled to Rs.40,000/-, under the said head. ``` ``` In the afore circumstances, this appeal and ``` ``` Cross Objections are partly allowed in the ``` ``` following manner: ``` ``` a) The compensation under the head “Loss of ``` ``` Dependency” is enhanced to Rs.11,44,000/-, from Rs.5,20,000/-, reckoning the notional income of the deceased to be Rs.10,000/- per month, with ``` ``` 10% future prospects added to it one third of it ``` ``` [CO Nos.101/2016, MACA NO.147/2016] ``` ``` 11 ``` ``` deducted towards his personal expenses, since he is admittedly survived by three dependents, as ``` ``` perSarla Verma & Others v. Delhi Transport Corporation & Another [2010 (2) KLT 802]. ``` ``` b)The compensation under the head “Loss of Consortium” is enhanced to Rs.1,20,000/-, from Rs.1,00,000/- awarded by the learned Tribunal, ``` ``` reckoning Rs.40,000/- each in favour of the ``` ``` appellants, as per Pranay Sethi (supra). ``` ``` c)The compensation under the head “Funeral ``` ``` Expenses” is reduced to Rs.15,000/- from ``` ``` Rs.25,000/- awarded by the learned Tribunal, as per Pranay Sethi (supra). ``` ``` d)The compensation under the head “Loss of ``` ``` Estate” is reduced to Rs.15,000/-, from Rs.25,000/-, awarded by the learned Tribunal, as per Pranay Sethi (supra). ``` ## `[CO Nos.101/2016, MACA NO.147/2016]` ``` 12 ``` ``` e) The compensation awarded under the heads “Loss of Love and Affection” and “Pain and ``` ``` Suffering” are both deleted, as perSatinder ``` ``` Kaur @ Satwinder Kaur (supra). ``` ``` f)In all other heads, the compensation ``` ``` awarded by the Tribunal and its findings will ``` ``` remain unaltered. ``` ``` g)Consequently, the appellants will be ``` ``` entitled to recover the compensation, as enhanced ``` ``` by this Court, from the respondent – Insurance Company, along with interest at the rate of 8% ``` ``` (modifying the rate of interest of 9% granted by ``` ``` the Tribunal, in view of the escalation granted by this Court) from the date of filing of the ``` ``` claim until it is realised. ``` ``` h)The appellants will also be entitled to ``` ``` proportionate costs on the enhanced amounts as ``` ``` [CO Nos.101/2016, MACA NO.147/2016] ``` ## `13` ``` ordered by the Tribunal. ``` ``` i)However,whilecalculatingthe ``` ``` interest, the period of 118 days - being the ``` ``` delay caused by the appellants in filing this appeal - shall stand excluded. ``` ``` j)In view of the afore, the amount as ``` ``` fixed above shall be deposited by the Insurance ``` ``` Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` SAS ```