Thayumma, Haleema, SASREENA, Mohammed Safeed Ali v. Anwar Sadath E.M. and The Oriental Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943 ``` ``` MACA NO. 1513 OF 2010 ``` ``` AGAINST THE AWARD DATED 22.10.2009 IN OP(MV)NO.2477/2005 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ## `APPELLANTS/PETITIONERS:` ``` 1THAYUMMA, S/O. MOIDEENKUTTY, AGED 60 YEARS, ERAYAMBATTU HOUSE, PAKKADAPURAYA,KANATTIPADI P.O., MALAPPURAM (MOTHER OF DECEASED) 2HALEEMA, W/O.LATE SAIDAVALI ABOO SAYED, AGED 30 YEARS, (WIFE OF DECEASED), ERAYAMBATTU HOUSE, PAKKADAPURAYA, KANNATTIPADI POST, MALAPPURAM 3SASREENA, S/O.LATE SAIDALAVI ABOO SAYED, AGED 12 YEARS(MINOR), REP.BY MOTHER HALEEMA, ERAYAMBATTU HOUSE, PAKKADAPURAYA, KANNATTIPADI POST,MALAPPURAM (DAUGHTER OF THE, DECEASED) 4MOHAMMED SAFEED ALI, S/O.LATE SAIDAVALI @ ABOO SAYED, MINOR, AGED 5 YEARS, REP.BY MOTHER HALEEMA. ``` ``` BY ADVS.SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1ANWAR SADATH E.M., S/O.KHADER, AGED 38 YEARS, EYYAMAKAKKAL HOUSE, CHERUKUDANGAD POST,PALLIPPURAM, PALAKKAD. ``` M.A.C.A.No.1513/2010 -:2:- - `2 THE ORIENTAL INSURANCE CO-LTD. DIVISIONAL OFFICE, PRAVANAM, MALE PATTAMBI,PATTAMBI, PALAKKAD.` ``` BY ADV K.S.SANTHI, SC, ORIENTAL INSURANCE COMPANY LTD. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1513/2010 -:3:- Dated this the 24[th] day of February,2022 ## **J U D G M E N T** The appellants were the petitioners in O.P (MV) No.2477/2005 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 the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Saidalavi(deceased) – the son of the first appellant, the husband of the second appellant and the father of the appellants 3 and 4. It was their case that, on 23.09.2005, while the deceased was travelling pillion on a motorcycle bearing registration No.KL-10-V-9048 along the Thrissur-Kozhikode National Highway, a jeep bearing registration No. KL-11-E-1168, driven by the first respondent in a negligent manner, hit the M.A.C.A.No.1513/2010 -:4:- motorcycle. The deceased sustained fatal injuries and lost his life at the M.K. Haji Orphanage Hospital, Tirurangadi. The jeep was owned and driven by the first respondent and insured with the second respondent. The deceased was employed as a Salesman in a supermarket at Jeddah in Saudi Arabia, and earning a monthly income of Rs.20,000/-. The appellants were the dependents of the deceased. Hence, they claimed a compensation of Rs.29,48,000/from the respondents, which claim was limited to Rs.28,00,000/- 3. The first respondent did not contest the proceeding. 4. The second respondent had filed a written statement admitting that the jeep had a valid insurance coverage. Nonetheless, the second respondent disputed negligence on the part of the first respondent and contended that the accident occurred due to the negligence of the deceased. The second M.A.C.A.No.1513/2010 -:5:- respondent also disputed the age, income and occupation of the deceased. 5. The second appellant was examined as PW1 and Exts.A1 to A8 were marked through her in evidence. The second respondent had produced the insurance policy, which was marked as Ext.B1. 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 second respondent an amount of Rs.17,15,000/- with interest and a cost of Rs.1,500/-. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri. K.M.Jamaludheen, the learned counsel appearing for the appellants/petitioners and Smt. K.S. Santhi, the learned counsel appearing for the second respondent /insurer. 9. The question that emanates for consideration M.A.C.A.No.1513/2010 -:6:- in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext.A3 Final Report laid by the Tirurangadi police in Crime No.424/2005 proves that the accident occurred due to the negligence of the first respondent. Indisputably, the first respondent was the owner and second respondent was the insurer of the jeep. The respondents have not let in any evidence to discredit Ext.A3 Final Report. The second respondent has also not proved that the first respondent had violated the insurance policy conditions. Therefore, the second respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Income of the deceased** 11. The appellants had pleaded in the claim petition that the deceased was working as a Salesman in a supermarket at Jeddah, Saudi Arabia. In order to substantiate their contention, they had produced the M.A.C.A.No.1513/2010 -:7:- salary certificate issued by the employer of the deceased, wherein it is stated that he was employed in Jeddah, since 1999 and was drawing a remuneration of SAR.1800/- per month. The said certificate has been attested by the Consulate General of India, Jeddah. However, in the cross-examination of PW1, she admitted that the deceased had returned to India after the termination of his contract, and he would return on renewal of his contract with a new Visitors International Stay Admission[VISA]. 12. The Tribunal, on the basis of the said admission, concluded that the deceased was no longer employed abroad. Accordingly, the Tribunal fixed the notional monthly income of the deceased at Rs.5,000/- 13. As per Ext.A8 salary certificate dated 26.12.2002 issued by Rakan Ibraheem Al-Marzoqi Trading Establishment, Jeddah, it is certified that the deceased was employed as a Salesman with them since 1999, and he was drawing a remuneration of M.A.C.A.No.1513/2010 -:8:- SAR.1,800/- per month. The certificate was attested by the Consulate General of India, Jeddah, only on 27.12.2005. 14. Admittedly, the deceased had lost his life on 23.09.2005. Therefore, Ext.A8 was issued well prior to the death of the deceased, but was attested by the Consulate General of India, only on 27.12.2005, after the death of the deceased. 15. The fact that the employer of the deceased had not issued a salary certificate just prior to the return of the deceased to India leads me to presume that the deceased’s contract was terminated much prior to his death. Moreover, on a perusal of Ext.A6 passports, no valid VISA is seen endorsed on the same. Thus, Exts.A6 and A8 read with the oral testimony of PW1, have proved that the deceased did not have a current employment in Jeddah as claimed. 16. This Court in **Valsamma and another v. Binu Jose and others** [2014 (1) KLT 10] has held that M.A.C.A.No.1513/2010 -:9:- in the case of persons who are not permanently employed abroad, the income has to be assessed as per the Indian standards. 17. In the case at hand, it is established that the deceased was a Salesman with experience from 1999 in Saudi Arabia. On the basis of the above qualification, I am of the opinion that as per Indian standard, the deceased would have drawn a monthly salary of Rs.8,000/-. Hence, I fix the notional monthly income of the deceased at Rs.8,000/-. ## **Multiplier** 18. The deceased was aged 35 years at the time of accident/death. In the light of the law laid down in **Sarla Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], the relevant multiplier to be adopted is ‘16’. ## **P ersonal living expenses of the deceased** 19. The appellants were the mother, wife and children of the deceased. They are four in number. M.A.C.A.No.1513/2010 -:10:- Following the principles in **Sarla Verma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], one-fourth of the compensation has to be deducted towards the ‘personal living expenses’ of the deceased. ## **Future prospects.** 20. In the light of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 35 years at the time of the accident/death, the appellants are entitled to ‘future prospects’ at 40%. ## **Loss of dependency** 21. Taking into account the above-mentioned factors, namely; the notional monthly income of the deceased at Rs.8,000/-, the multiplier at ‘16’, ‘future prospects’ at 40% and after deducting one-fourth of the compensation towards ‘personal living expense’ of the deceased, I re-fix the compensation for 'loss of dependency' at **Rs.16,12,800** , instead of Rs.6,80,000/- M.A.C.A.No.1513/2010 -:11:- awarded by the Tribunal. ## **Conventional/traditional heads of compensation** 22. In paragraph 59.8 of **Pranay Sethi** (supra) it is held that the dependents of the deceased are entitled for compensation under the conventional heads viz., ‘funeral expenses’, ‘loss of estate’ and ‘loss of consortium’ at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 23. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd.** [2021 SCC Online SC 967] and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another** [2021 SCC Online SC 1193], the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed M.A.C.A.No.1513/2010 -:12:- and inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered on 31.10.2017, and not for accidents that occur every three years after 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 24. In the instant case, the Tribunal has awarded an amount of Rs.3,000/- under the head ‘funeral expenses’, Rs.10,000/- under the head ‘loss of estate’ and Rs.10,000/- under the head ‘loss of consortium’. 25. In view of the law referred to above, I hold that the appellants are entitled to a further amount of **Rs.13,500/-** under the head ‘funeral expenses’, **Rs.6,500/-** under the head ‘loss of estate’ and **Rs.1,66,000/-** under the head ‘loss of consortium’ i.e., Rs.44,000/- each to the appellants 1 to 4. M.A.C.A.No.1513/2010 -:13:- ## **Loss of love and affection** 26. The Tribunal has awarded an amount of Rs.10,000/- under the head ‘loss of love and affection’. In **New India Assurance Co. v. Somwati and others** [(2020) 9 SCC 644] the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount of Rs.10,000/- awarded under the head 'loss of love and affection'. 27. With respect to the other heads of compensation namely; 'transportation', and 'clothing’, I find that the Tribunal has awarded reasonable and just compensation. 28. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I hold that the M.A.C.A.No.1513/2010 -:14:- appellants/petitioners are entitled to enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. |Sl No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transport to<br>hospital|1,500|1,500| |2|Damage to<br>clothing|500|500| |3|Funeral<br>expenses|3,000|16,500| |4|Loss of love and<br>affection|10,000|Nil| |5|Loss of estate|10,000|16,500| |6|Loss of<br>consortium|10,000|1,76,000| |7|Loss of<br>dependency|6,80,000|16,12,800| ||**Total**|**7,15,000**|**18,23,800**| In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.11,08,800/-** with interest at the rate of 7% per annum from the date of petition till the date of deposit and proportionate cost. The second respondent is M.A.C.A.No.1513/2010 -:15:- ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellants in the ratio of 10:40:25:25, and in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/24.02.22 //True copy/ P.A.To Judge