Usman N. and Others v. Anil Patil and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 4[TH] DAY OF AUGUST 2022 / 13TH SRAVANA, 1944** ## **MACA NO. 943 OF 2013** **AGAINST THE AWARD DATED 22.01.2013 IN O.P(MV) No.35/2010** ## **OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANTS/PETITIONERS:** - 1 USMAN N., S/O.ITHUALU HAJI, ALGILAL MANZIL, PATHAPPIRIYAM, P.O.MANJERI, ERNAD TALUK, MALAPPURAM DISTRICT. - 2 MYMOONA E.K., W/O.USMAN.N., ALGILAL MANZIL, PATHAPPIRIYAM, P.O.MANJERI, ERNAD TALUK, MALAPPURAM DISTRICT. - 3 VALEED.N., S/O.USMAN.N., ALGILAL MANZIL, PATHAPPIRIYAM, P.O.MANJERI, ERNAD TALUK, MALAPPURAM DISTRICT. - 4 SAHAL .N, S/O.USMAN.N., ALGILAL MANZIL, PATHAPPIRIYAM, P.O.MANJERI, ERNAD TALUK, MALAPPURAM DISTRICT. - 5 SIDARTHUL MUNTHAHA, S/O.USMAN.N., ALGILAL MANZIL, PATHAPPIRIYAM, P.O.MANJERI, ERNAD TALUK, MALAPPURAM DISTRICT. - 6 YUSRI.N., S/O.USMAN.N., ALGILAL MANZIL, PATHAPPIRIYAM, P.O.MANJERI, ERNAD TALUK, MALAPPURAM DISTRICT. - 7 MIHNATHUL MUNTHAHA, D/O.USMAN.N., ALGILAL MANZIL, PATHAPPIRIYAM, P.O.MANJERI, ERNAD TALUK, MALAPPURAM DISTRICT. - 8 BADIYA.N (MINOR), AGED 16 YEARS, D/O.USMAN.N., ALGILAL MANZIL, PATHAPPIRIYAM, P.O.MANJERI, ERNAD TALUK, MALAPPURAM DISTRICT, REP. BY HER GUARDIAN-FATHER 1ST APPELLANT. 2 ## **M.A.C.A No.943 of 2013** BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI ## **RESPONDENTS/RESPONDENTS:** - 1 ANIL PATIL, S/O.APASO KARAD, POTHELA VILLAGE, SATARA DISTRICT, MAHARASHTRA STATE. PIN-415 206. - 2 ASHOK DNYANU PATIL, A/P TAKE TAL, KARAD, SATARA DISTRICT, MAHARASTRA STATE, PIN-415 206. - 3 THE NEW INDIA ASSURANCE COMPANY LIMITED, SATARA DIVISIONAL OFFICE, 468/1, OPP.POPATBHAI PETROL PUMP, SHANIWARPETH, P.B.NO.7, SATARA DISTRICT, MAHARASHTRA STATE. BY ADV. SRI.RENIL ANTO KANDAMKULATHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 04.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.943 of 2013** 3 ## **JUDGMENT** This is an appeal filed under Section 173 of the Motor Vehicles Act, challenging award dated 22.01.2013 in O.P.(M.V) No.307/2010 on the file of the Motor Accidents Claims Tribunal, Manjeri, at the instance of the petitioners. 2. Respondents herein are the respondents before the Tribunal. 3. Heard the learned counsel for the appellants as well as the learned Standing Counsel for the Insurance Company. 4. Brief facts of the case: One Misab died pursuant to an accident occurred at 4:40 a.m. on 13.12.2008 while studying for B.Tech (Electrical and Electronic) course as a final year student. According to the appellants, when the above said Misab was riding his motorcycle, he met with an accident due to the rash and negligent on the part of the 1[st] respondent, the driver of the lorry **M.A.C.A No.943 of 2013** **==> picture [7 x 9] intentionally omitted <==** bearing registration No.MH-11M-4128. Therefore, the parents and siblings (appellants 1 to 8) pressed for granting compensation to the tune of Rs.6,00,000/- from respondents 1 to 3. 5. The 1[st] and 2[nd] respondents were set ex- parte by the Tribunal. 6. The 3[rd] respondent, Insurance Company filed written statement and admitted policy to the lorry. The 3[rd] respondent filed additional written statement contending that since the 3[rd] respondent had no driving license at the time of accident, the Company had no liability to indemnify the insured. 7. The Tribunal adjudicated the matter, after examining PW1 and marking Exts.A1 and A13 on the side of the appellants and Exts.B1 and B2 marked on the side of the 3[rd] respondent. 8. The Tribunal appraised the evidence and finally granted Rs.4,08,500/- as compensation along with 9% interest per annum. 9. According to the learned counsel for **M.A.C.A No.943 of 2013** 5 the appellants, the compensation granted by the Tribunal is inadequate. He submitted that at the time of accident Misab was studying for final year B.Tech (Electrical and Electronic) course and he had passed other examinations as borne out from Ext.A12 series mark list. The Tribunal also discussed about Ext.A12 series and finally, Rs.5,000/- was fixed as the monthly income. In this matter, by applying the ratio in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ : **(2011) 13 SCC 236,** the income would come to Rs.6,000/-. However, a deviation from the ratio of _**Ramachandrappa's case (supra)**_ is warranted in certain cases where professional education qualification involved and cases in which the attempt to get professional qualification also involved. In this case, the deceased was studying for final year B.Tech (Electrical and Electronic) course. Taking note of the said fact, I am inclined to fix Rs.10,000/- as the ## **M.A.C.A No.943 of 2013** ## 6 monthly income in this case with 40% addition following the ratio in _**National Insurance Company Ltd. v. Pranay Sethi**_ **: (2017) 16 SCC 680.** 10. The Tribunal applied multiplier as '13' depending on the age of the mother, since the said law was prevailing at the time of passing the award by the Tribunal. In the decision reported in _**Sarla Verma v. Delhi Transport Corporation**_ **: (2009) 6 SCC 121,** the Apex Court categorically held that the age of the deceased is relevant in the matter of fixing the multiplier. Therefore, the multiplier in this case should be '18', since the deceased was aged 21 years as borne out from Ext.A10 copy of SSLC book produced. Therefore, the 'loss of dependency income' is as under: 14,000 x 12 x 18 x 50% = **15,12,000/-** 11. In this matter, following the ratio in _**Pranay Sethi's case (supra),**_ the appellants 1 and 2 are entitled to get parental consortium @ **M.A.C.A No.943 of 2013** ## 7 Rs.40,000/- each, and, therefore, **Rs.80,000/-** granted under the head 'loss of consortium'. 12. Apart from that, towards the heads 'loss of estate' and 'funeral expense' **Rs.15,000/-** each is granted following the ratio ## in _**Pranay Sethi's case (supra).**_ 13. It is noticed further that the Tribunal granted Rs.10,000/- under the head 'loss of love and affection'. Following the ratio in ## _**United India Insurance Co. Ltd v. Satinder Kaur**_ ## **@ Satwinder Kaur and others : 2020 (3) KHC 760,** Rs.10,000/- granted under the head 'love and affection' is not liable to be granted. 14. In the result, this appeal is allowed. It is ordered that the appellants are entitled to get **Rs.16,22,000/-** (Rupees Sixteen Lakh Twenty Two Thousand Only) as total compensation inclusive of the compensation granted by the Tribunal, along with interest 9% per annum, to be realised from the 3[rd] respondent, Insurance Company from the date of petition till the date **M.A.C.A No.943 of 2013** 8 of deposit or realisation. 15. The appellants valued the claim at Rs.6,00,000/-. In view of grant of Rs.10,22,000/- in excess of the claim, the appellants are bound to deposit Rs.10,220/- as additional court fee. The 3[rd] respondent, Insurance Company is directed to deposit Rs.10,220/- as additional court fee by a separate cheque in favour of M.A.C.T., Manjeri. The 3[rd] respondent, Insurance Company is further directed to deposit the balance amount in the name of the appellants, after adjusting the amount, if any, already deposited, in the proportion 30% in the name of the 2[nd] appellant, 25% in the name of the 1[st] appellant and the remaining 45% equally in between appellants 3 to 8, within two months from today. On deposit, the appellants are entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww