United India Insurance Co. Ltd. vs. T.K. Rukkiyabi, Reja Masbhuda and P.K. Abdul Jaleel

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY ,THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940** ## **MACA.No. 245 of 2016** **AGAINST THE AWARD IN OPMV 1954/2002 of M.A.C.T.,KOZHIKODE DATED 07-10-2015** ## **APPELLANT/2nd RESPONDENT:** **THE UNITED INDIA INSURANCE CO. LTD. KOZHIKODE, REPRESENTED BY ITS DEPUTY MANAGER,REGIONAL OFFICE, HOSPITAL ROAD, ERNAKULAM.** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN** ## **RESPONDENTS/CLAIMANTS:** **1 T.K.RUKKIYABI W/O.P.K.ABDUL JALEEL, NAJAH, P.O.FAROOK COLLEGE,KOZHIKODE. PIN - 673 632.** **2 REJA MASBHUDA D/O.ABDUL JALEEL NAJAH, P.O.FAROOK COLLEGE,KOZHIKODE. PIN - 673 632.** **3 P.K.ABDUL JALEEL S/O.MOHAMMED NAJAH, P.O.FAROOK COLLEGE,KOZHIKODE. PIN - 673 632.** **BY ADV. SRI.JACOB ABRAHAM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 245 of 2016** **2** ## JUDGMENT This appeal is directed against the award dated 07.10.2015 in O.P.(MV) No. 1954/2002 on the files of the Motor Accident Claims Tribunal, Kozhikode (for short 'the Tribunal'). 2. The appellant is the insurer of the offending vehicle involved in the accident. Sri.George Cherian, the learned Senior Counsel advanced arguments on behalf of the appellant and Sri.Jacob Abraham advanced arguments on behalf of respondents 1 and 2 in the appeal, who are the claimants before the Tribunal. 3. The challenge in the appeal was mainly against the quantum of compensation awarded by the Tribunal under various heads of compensation for the reason of those being excessive in nature. Before adverting to the contentions raised by the appellant, this Court finds it appropriate to have a discussion about the facts of the case in brief : 4. One Ms.P.K.Naja Binthu Jaleel, a minor girl aged 12 years, who was studying in Class VII, met with a motor accident at 3 a.m on 13.03.2000, when the car bearing registration **MACA.No. 245 of 2016** **3** No.KL-11-G-4321 in which she was travelling, dashed against a culvert situated near to the Water Authority Office, At Vydyarangadi. The minor girl, sustained fatal injuries, and was rushed to the National Hospital, Kozhikode where she was declared dead after four hours of the accident. Alleging that the accident was occurred due to rash and negligent driving of the car by its driver who was none other than the father of the deceased and claiming for a total compensation of Rs.3,00,000/-, the claim petition as above was preferred by the mother and sibling of the deceased before the Tribunal. The driver cum owner and insurer of the car were respectively arrayed as respondents 1 and 2 in the claim petition. 5. The 1[st] respondent responded to the summons issued from the Tribunal by entering appearance and filing written statement. The car was admitted as insured with the 2[nd] respondent. It was contended that he was driving the vehicle carefully and in his attempt to save the girl being hit by a cyclist who was crossing the road, he had turned the car and thereby it dashed against the culvert. According to him, he was having a driving licence at the relevant time of accident. **MACA.No. 245 of 2016** **4** 6. The 2[nd] respondent had also filed written statement admitting insurance coverage of the car at the relevant time of accident. It was contended that while swerving the car, the 1[st] respondent lost control over the vehicle in view of the bright light emanating from the car proceeding against him at the relevant time and thereby it hit against a culvert. The 1[st] respondent was contended as not responsible for the accident. The compensation claimed was also disputed as exorbitant for the reason that age and academic excellence of the deceased are not established. 7. The claim petition was originally dismissed as per order dated 10.08.2007. In the appeal preferred as MACA No.527/09, this Court vide judgment dated 17.07.2015, set aside the judgment of dismissal and remanded the case back to the Tribunal for fresh trial and disposal. Accordingly, a fresh trial was held before the Tribunal. 8. On the side of the petitioners, the 1[st] petitioner got herself examined as PW1 and Exts.A1 to A10 were marked. On the side of the contesting 2[nd] respondent Exts.B1 and B2 were **MACA.No. 245 of 2016** **5** marked. On appreciation of the entire evidence on record, the Tribunal found the 1[st] respondent rash and negligent in driving the car bearing registration No.KL-11-G-4321, at the relevant time and arrived at Rs.6,87,625/- as the quantum of compensation payable to the petitioners. The car having been found validly insured with the 2[nd] respondent, liability was fastened on them to deposit the amount with interest at the rate of 9% per annum from the date of the claim petition till the date of realisation, along with proportionate costs, in favour of the petitioner. Aggrieved by the quantum of compensation awarded by the Tribunal as above and challenging the same for the reason of its exorbitance, the appeal on hand was preferred. 9. Firstly, it was contended by Sri.George Cherian, the learned counsel for the appellant that the Tribunal has fixed annual income to the minor girl for the purpose of calculation of compensation for future expectation of her death (loss of dependency). According to the counsel, Rs.20,000/- was fixed by the Tribunal and it is on the higher side since the deceased was a minor girl aged only 10 years at the relevant time of **MACA.No. 245 of 2016** **6** accident. Accordingly, the counsel seeks for interference with the fixation of monthly income. Secondly, it was contended by the learned counsel that under the head funeral expenses, against the direction of the Constitution Bench of the Apex court in **National Insurance Co.Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)], the Tribunal has awarded a sum of Rs.25,000/-. Counsel seeks for a deduction of Rs.10,000/- from the amount awarded by the Tribunal as compensation under the said head. Thirdly, it was contended that Rs.3,00,000/- awarded by the Tribunal under the head loss of love and affection and ordering to grant Rs.1,00,000/-out of that to each petitioners and 1[st] respondent is unjust and unreasonable. It is also contended that the 1[st] respondent being the insurer of the vehicle is not entitled to get compensation and therefore, interference on that count is warranted. Fourthly, the challenge was against award of a consolidated sum of Rs.2,00,000/- by the Tribunal towards pain and sufferings of the deceased and mental agony of petitioners 1, 2 and the 1[st] respondent. Rs.50,000/- each was awarded to petitioners 1 and 2 and 1[st] respondent under the **MACA.No. 245 of 2016** **7** head mental agony and Rs.50,000/- towards pain and sufferings of the deceased. It is contended by the counsel that award of Rs.2,00,000/- under the above heads is unjust and unreasonable and modification by interference is required. 10. Per contra, Sri.Jacob Abraham, the learned counsel on behalf of the claimants have contended that the award passed by the Tribunal is just and reasonable and interference of any nature is totally uncalled for. It is contended by the learned counsel that in the fixation of annual income a modification is required in view of the dictum laid down by the Apex Court in **Lata Wadhwa v. State of Bihar** [(2001) 8 SCC 197]. According to the counsel, principles of fixation of annual income were properly dealt with in **Lata Wadhwa** 's case _supra_ and Tribunal failed to advert to those while fixing the annual income as Rs.20,000/-. Accordingly, the learned counsel seeks to refix the monthly income and to modify the award on it's basis. 11. In the backdrop of the rival contentions this Court ventured to critically analyse the evidence on record to see whether the Tribunal went wrong in arriving a sum of **MACA.No. 245 of 2016** **8** Rs.6,87,655/- as the total compensation payable to the petitioners. As rightly put forth by the learned counsel, the deceased was a minor school going girl aged 12 years at the relevant time of accident. In the claim petition minor girl was pleaded as having no income. The mother of the minor girl was examined before the Tribunal as PW1. According to her, the girl was studying in 7[th] Standard in Al Fariq E.M. Residential School and was first rank holder. It is also deposed by her that the minor girl had proved excellence in Art and Culture and has obtained distinction from several places. According to her, several awards and prizes have been obtained by the minor girl and the documents pertaining to those have been produced before the Tribunal and got marked in evidence as Exts.A1 series and Ext.A10. According to her, in view of the above, her minor daughter had better future prospects in the matter of obtaining a descent job with reasonable monthly income. PW1 has also gone to the extent of stating that with the death of the minor girl, her family had lost the love, caring and affection from her, which could have been enjoyed had she been alive. **MACA.No. 245 of 2016** **9** According to her, she would have earned fame to their family and must have stood to secure their life in their old ages. PW1 was cross examined by the 2[nd] respondent. In cross examination it was evidenced that apart from the deceased, PW1 has another daughter and the deceased is the eldest one. It was also spoken by PW1 that the second daughter is away at Dubai staying along with her husband. It has also been spoken by her that it is incorrect to say that they being well off are not supposed to depend on the earnings of their daughters. It is also derived from the evidence adduced by PW1 that she was working as a teacher in a Government Higher Secondary School at Faroq and her husband was a pensioner from his profession as a Professor in Faroq College. It was also stated that both were earning members. On appreciation of the oral evidence tendered by PW1 that the Tribunal has fixed the annual income as Rs.20,000/- for the purpose of calculation of compensation for loss of future expectation and death. Though the learned counsel for the respondents/claimants have contended that the Tribunal failed to advert to the evidence on record in proper **MACA.No. 245 of 2016** **10** perspective while fixing annual income of Rs.20,000/-, a glance at the impugned award would reveal that in paragraph 10 therein, elaborate discussion was made by the Tribunal on all those aspects. Paragraph 10 of the impugned award is extracted hereunder : “10. The deceased was aged 12 years as per A5 birth certificate which is not disputed by R2. She being a student of Class VII no loss of income is claimed by the petitioners except for their high expectations on her academic excellence. Ext.A1 series & A10 photos are the documents produced to prove her academic excellence. PW1 is the mother of the deceased who is a teacher & petitioner No.2 is her sister, both of whom are not dependent on the deceased as R1 &P1 are the earning members of the family. Therefore the petitioners are found not entitled for compensation due to loss of dependency on her death. Nevertheless they are found entitled for loss of future expectations on her academic excellence for which the income of the deceased is taken as Rs.20,000/- per year the accident being in the year 2000, applying 15 as the multiplier for computing the compensation to be awarded. The submission that the future prospects of the deceased is also to be considered following the decision Mekala v. Malathi M & Anr in case No.4880/2014 decided on 25.04.2014 is not accepted because in that case the injured was bedridden because of her permanent disability as rightly argued by the learned counsel for R2. In this case the minor died consequent to the accident and she was neither the bread winner of the family nor the family was burdened to look after her.” **MACA.No. 245 of 2016** **11** It is pertinent to note that the entire evidence have been considered by the Tribunal and thereby the annual income was fixed as Rs.20,000/-. **12. Kishan Gopal and another v. Lala and others** [2014 (1) SCC 244] was also relied on to contend that an enhancement is possible to be taken in the annual income than what was fixed by the Tribunal. The learned counsel has contended that Rs.30,000/- was taken as the annual monthly income in **Kishan Gopal** 's case by the Apex Court by relying on **Lata Wadhwa** 's case supra and therefore a modification is also possible in the case on hand in consideration of the academic excellence and excellence in art and culture well established from the oral evidence of PW1 and documentary evidence on record. According to the learned counsel, the status of the parents of the deceased must also have a bearing while fixing the annual income and that was not considered by the Tribunal. 13. In **Kishan Gopal** 's case, the Apex Court has fixed the annual income as Rs.30,000/- for a minor boy aged 10 years. The fixation was based on several considerations. In the case cited, evidence was let in by the petitioners, who are the **MACA.No. 245 of 2016** **12** parents of the deceased minor boy aged 10 years to the effect that he was assisting his father in agricultural operations and thereby was getting Rs.2,000/- monthly. The evidence tendered by the father of the deceased was not controverted by the respondents in the said case. Therefore, in view of the uncontroverted evidence and also considering the directives issued by the Apex Court in **Lata Wadhwa** 's case, and taking into consideration the future prospects of the boy, Rs.30,000/was fixed as the annual income. In the case on hand also it is clear from the extracted portion of the impugned award as above that the Tribunal has considered the evidence of record while fixing the annual income as Rs.20,000/-. The Tribunal has considered future prospects of the deceased minor girl also while fixing so. The Tribunal has also discussed therein that the father and mother being employed and earning sufficient income are not entitled to depend upon the earnings that is likely to be obtained by the minor girl in future. 14. It is pertinent to note that a cross objection has not been raised against the appeal. The learned counsel has contended that even without cross objection, this court could **MACA.No. 245 of 2016** **13** modify the monthly income by enhancing the same. The present appeal being filed by the 2[nd] respondent/insurer, seeking for modification of the amount awarded by reduction of the amount awarded under various heads, this Court finds no justification in enhancing the monthly income without a ground regarding that being projected by the claimants by filing cross objection. The Tribunal having been found justified in fixing the annual income as Rs.20,000/- for the purpose of computation of compensation, this Court is declined to interfere with the compensation arrived at by the Tribunal under the head loss of future expectation on the basis. Therefore, the amount of Rs.1,50,000/- awarded by the Tribunal under the said head is maintained. Under the head funeral expenses, the Tribunal has awarded a sum of Rs.25,000/-. The Tribunal is highly unjustified in awarding the said sum as compensation under the conventional head of funeral expenses, in view of the **Pranay Sethi** 's case supra. Therefore, this Court is inclined to deduct Rs.10,000/-. therefrom. Under the head loss of love and affection, Rs.3,00,000/- was awarded by the Tribunal by **MACA.No. 245 of 2016** **14** awarding Rs.1,00,000/- each to petitioners 1 and 2 and respondent No.1. As conceded by the learned counsel for the respondent, the 1[st] respondent though the father of the deceased, being the tortfeasor and insured is not entitled to get compensation under the head. Therefore, Rs.1,00,000/- is deducted therefrom. The Apex Court in **Pranay Sethi** 's case supra has declared the law laid down by the Court in **Rajesh and Others v. Rajbir Singh and others** [ 2013 ACJ 1403 SC] as not a binding precedent. In **Rajesh** 's case Rs.1,00,000/- was awarded under the head loss of love and affection to each of the petitioners. Since that was held as not a binding precedent, the Tribunal is perfectly unjustified in awarding Rs.1,00,000/- each to petitioners 1 and 2 towards loss of love and affection. In view of the decision in **Magma General Isurance Co. Ltd v. Nanu Ram Alias Chuhru Ram & Ors.** [2018 (11) SCALE 247], wherein the award of Rs.50,000/- each by the High Court was maintained, the Tribunal is justified in granting compensation of Rs.50,000/-each to petitioners 1 and 2 under that head. 15. In the refixation of compensation as above, there would be a further deduction of Rs.1,00,000/- from the sum **MACA.No. 245 of 2016** **15** awarded by the Tribunal as compensation under the head loss of love and affection. Under the head pain and suffering of the deceased and mental agony of petitioners 1 and 2 and 1[st] respondent, a sum of Rs.1,00,000/- was awarded by the Tribunal by granting Rs.50,000/- each towards mental agony of petitioners 1 and 2 and the 1[st] respondent. Compensation will not in usual course be granted for the mental agony of the petitioners who are surviving members. Therefore, Rs.1,50,000/-granted on that count is deducted therefrom. Rs.50,000/- was awarded under the head pain and suffering of the deceased. As evidenced, the deceased was alive with the fatal injuries for four hours prior to her death. The seriousness in the injury sustained by the petitioner is evidenced from the description regarding ante-mortem injuries in Ext.A3, the postmortem certificate. Therefore, with all the fatal injuries as disclosed from Ext.A3, the petitioner remained alive only for four hours after the accident. Ante-mortem injuries as evidenced from Ext.A3 are extracted hereinbelow : - “B. Injuries (ante mortem) External : 1. Sutured wound right side of head 3.5 cm lower vertical **MACA.No. 245 of 2016** **16** 2cm above ear with surrounding swelling 11x7cm. 2. Sutured lacerated wound 2.5cm front of helix of right ear upper part. Internal 3. Brain (1300 gms) showed subdural haematoma 4x3x1cm right temperoparital area, contusion right parital area with subarachnoid haemorrhage thin both temperoparital area thick intraventricular haematoma right side and diffuse brain oedema.” 16. In view of the above, this Court is inclined to maintain Rs.30,000/- out of Rs.50,000/- awarded by the Tribunal. Thus there will be a deduction of Rs.20,000/- from the compensation awarded by the Tribunal on that count. It is noticed from the impugned award that compensation was declined under the head loss of estate. This Court is inclined to grant Rs.15,000/as directed by the Apex Court in **Pranay Sethi** 's case supra under the conventional head of loss of estate. In the aforesaid fixation of compensation by modification, the petitioners are found entitled to get a sum of **Rs.3,22,625** /- **(Rupees three lakhs twenty two thousand six hundred and twenty five only)** . The amount will carry interest at the rate of 9% per annum as directed by the Tribunal **MACA.No. 245 of 2016** **17** in the impugned award and appropriate costs. The appeal is allowed on the above terms. No order on costs. **Sd/-** **MARY JOSEPH** **JUDGE** ttb