Allowed

Mohammed Basil (Minor) v. Abdul Saleem Vylisseri

Kerala HC17 Oct 2018MACA/2707/2008

Case brief

AI extract

What is this about?

Appeal against Motor Accident Claims Tribunal award. Court held basic policy covered pillion rider, enhancing dependence compensation to Rs.4.32 lakhs and heads for pain, funeral, and affection, totaling additional Rs.3.18 lakhs payable by insurer.

What did the court decide?

Appellants awarded additional compensation of Rs.3,18,667 inclusive of enhanced heads for pain, funeral, affection, and estate, payable by insurer within six weeks with interest.

Mohammed Basil (Minor) Vs Abdul Saleem Vylisseri — Specific Performance | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

¶4

WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940

¶5

MACA.No. 2707 of 2008

¶6

AGAINST THE AWARD IN OPMV 2260/2003 of PRL.M.A.C.T.,KOZHIKODE DATED 03-12-2007

¶7

APPELLANTS/PETITIONERS:

¶8

1 MOHAMMED BASIL , S/O. ABDUL KHADER AGED 1 YEAR 2 MONTHS (MINOR), REPRESENTED BY, MOOSAKOYA . (SON OF THE DECEASED).

¶9

2 MOOSAKOYA, S/O.KAMMU AGED 70 YEARS (FATHER OF THE DECEASED).

¶10

3 UMMACHUTTY WO.MOOSAKOYA AGED 55 YEARS (MOTHER OF THE DECEASED), (ALL ARE RESIDING AT KARUVANNIL HOUSE,, P.O.VALLIKUNNU, VIA. KADALUNDI NAGARAM,, MALAPPURAM DISTRICT).

¶11

BY ADVS.

¶12

SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN

¶13

RESPONDENTS/RESPONDENTS:

¶14

1 ABDUL SALEEM VYLISSERI, S/O. KOYAKUTTY, KARUVANTTIL HOUSE, MUNDIYANKAVU, VALLIKUNNU,, MALAPPURAM.

¶15

2 ABDUL KHADER.M, S/O.KOYAKUTTY AGED 35 YEARS, KARATTU MALAYIL HOUSE, P.O.PULIKKAL,, PARUTHIKADU, MALAPPURAM.

¶16

MACA.No. 2707 of 2008

¶17

¶18

3 UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, PANDI AUTOMOBILE BUILDING,, UPHILL, MALAPPURAM.

¶19

R3 BY ADV. SRI.T.J.LAKSHMANAN IYER

¶20

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶21

MACA.No. 2707 of 2008

¶22

JUDGMENT

¶23

The appellants are claimants. Challenge is against inadequacy of compensation awarded by the Tribunal in respect of death of the pillion rider of the motor cycle bearing No.KL.10.N-8746 and in exonerating the insurer of the motor cycle, wrongly

¶24

holding that the policy issued by the insurer was only an 'Act Policy'.

¶25

Heard the learned counsel for the appellants as well as the learned counsel for the Insurance Company as well.

¶26

The deceased was proceeding as a pillion rider on the motor cycle, ridden by her husband/second respondent herein. While so, the motor cycle hit against a dog (as putforth from the part of the claimants) and capsized, causing fatal injuries to the pillion rider, who succumbed to the same. It was sought to be compensated by filing the claim petition (OP(MV)No.2260 of 2003) by the minor child of the deceased and the parents, targetting the husband/second

¶27

MACA.No. 2707 of 2008

¶28

¶29

respondent herein, who was riding the vehicle belonging

¶30

to the first respondent and insured by the third respondent. The third respondent/insurer, though admitted existence of a valid policy [copy of which was marked as Ext.B1], however, sought to be exonerated, contending that no additional premium was collected to cover the risk of the pillion rider.

¶31

Considering the fact that the deceased was 22

¶32

years of age, a notional annual income of Rs.16000/-

¶33

was adopted and multiplier of '17' was taken, to fix

¶34

the dependency compensation. A total sum of

¶35

Rs.1,94,333/- was awarded by the Tribunal, directing

¶36

the same to be satisfied with interest at the rate of 7.5% per annum.

¶37

Coming to the first contention raised by the

¶38

appellant that Ext.B1 policy was a 'package policy' and that the same would provide coverage to the pillion

¶39

rider as well, this Court is of the view that this

¶40

cannot be a subject matter of dispute any further in

¶41

view of the decision rendered by this Court in Francis

¶42

K.T. vs. Sabu Augustine (2015 (5) KHC 320 ). As it

¶43

MACA.No. 2707 of 2008

¶44

¶45

stands so, no separate premium was necessary to be collected to cover the risk of the pillion rider, it being a comprehensive/standard package policy. The finding to the contrary, made by the Tribunal, stands set aside, making the insurance company liable.

¶46

Coming to the quantum of compensation awarded,

¶47

amounts have been granted under various heads as given below:

¶48

Head	Amount in Rs.
Dependency	181333
Pain and suffering	5000
Funeral expenses	2000
Transportation	1000
Love and affection	5000
TOTAL	194333

¶49

There is no dispute that the deceased was only 22 years and as such, the appropriate multiplier ought to have been reckoned as '18' instead of '17'( adopted by the Tribunal). No evidence was adduced before the Tribunal, either oral or documentary as to the avocation or income, but for proclaiming a higher

¶50

MACA.No. 2707 of 2008

¶51

¶52

income of Rs.4000/-, which is not liable to be accepted. However, taking note of the fact that the deceased was an able-bodied youth of 22 years, capable of doing at least manual work and further since, the accident was in the year 2003, this Court finds it appropriate to re-fix the monthly income as Rs.3000/-; also taking note of the future prospects. Adopting the multiplier of '18' and reducing 1/3^rd of monthly income towards personal expenses, dependency compensation comes to Rs.4,32,000/(3000 x 12 x 2/3 x 18). After giving credit to the sum of Rs.181333/- awarded by the Tribunal, the balance comes to Rs.250667/-

¶53

The Tribunal has awarded only a sum of

¶54

Rs.5000/- towards pain and suffering. A further sum of Rs.10000/ - is awarded under this Head. Towards funeral

¶55

expenses, the Tribunal has awarded only a sum of Rs.2000/-, which requires to be enhanced by a further sum of Rs.13000/- in view of the ruling of the Constitution Bench of the Supreme Court in National Insurance Co. Ltd vs. Pranay Sethi [2017(16)SCC 680 = 2017 (5)KHC 350 ]. The Tribunal has awarded only a sum

¶56

MACA.No. 2707 of 2008

¶57

¶58

of Rs.5000/- towards loss of love and affection, which

¶59

is raised to Rs.40000/-, resulting in a deficit of

¶60

additional compensation of Rs.35000/- . A notional sum of Rs. 10000/- is also liable to be awarded towards

¶61

loss of estate. It is ordered accordingly. Thus, the total additional compensation payable comes to

¶62

Rs.3,18,667/- , (Rupees three lakhs eighteen thousand

¶63

six hundred and sixty seven only ) which shall be satisfied with interest at the rate of 7.5% from the date of petition, till satisfaction. Since the policy is a Package Policy, the respondent/insurer is directed to satisfy the entire amount due (the award amount and

¶64

also the additional compensation awarded by this

¶65

Court) within 'six 'weeks' from the date of receipt of a copy of this judgment.

¶66

Appeal stands disposed of.

¶67

Sd/- P.R. RAMACHANDRA MENON, JUDGE.

¶68

/TRUE COPY/

¶69

¶70