Partly allowed

Muhammed Muhiyudheen v. the Oriental Insurance Company Limited

Kerala HC14 Sept 2021MACA/3616/2019

Case brief

AI extract

What is this about?

This Motor Accident Claims Appeal addressed the quantum of compensation for deceased Mujahim. The High Court fixed the deceased's monthly income at Rs.12,000 due to lack of documentary proof, recalculated loss of dependency per Pranay Sethi, and excluded awards for love and affection and pain and suffering.

What did the court decide?

Modified award passed to the tune of Rs.19,24,400 including loss of dependency, parental consortium, loss of estate, and funeral expenses.

Muhammed Muhiyudheen Vs the Oriental Insurance Company… — Motor Accident Claims | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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TUESDAY, THE 14^TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943

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MACA NO. 3616 OF 2019

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AGAINST THE AWARD IN OP(MV) 1888/2017 DATED 14-02-2019 OF MOTOR

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ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE.

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APPELLANTS/PETITIONERS :

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1 MUHAMMED MUHIYUDHEEN, S/O.KAMALUDHEEN,AGED 49 YEARS.

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2 AHAMMED MARIYAM,W/O.MUHAMMED MUHIYUDHEEN, AGED 47 YEARS.

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3 MIHAJUM, AGED 16 YEARS, (MINOR), REP.BY HIS FATHER MUHAMMED MUHIYUDHEEN,

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ALL ARE RESIDING AT MALAPPURAM PARAMBA HOUSE, CHALATTY, CHERUVANNUR, NALLALAM.P.O., KOZHIKODE.

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BY ADV ZUBAIR PULIKKOOL.

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RESPONDENT/ RESPONDENT NO.3 :

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THE ORIENTAL INSURANCE COMPANY LIMITED, JASEELA COMPLEX BYPASS JUNCTION, NILAMBOOR ROAD, MANJERI, PIN-676 121.

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BY ADVS. DR.ELIZABETH VARKEY SRI.JITHIN SAJI ISAAC

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA No.3616 of 2019 2

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A.BADHARUDEEN, J.

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MACA No.3616 of 2019

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Dated this the 14^th day of September, 2021

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J U D G M E N T

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This appeal is at the instance of the original petitioners in OP(MV) No.1888 of 2017 on the file of the Motor Accidents Claims Tribunal, Kozhikode. The petitioners, who are aggrieved by the award dated 1402-2019 in the above matter have preferred this appeal, arraying the third respondent before the Tribunal as the sole respondent herein.

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Parties in this appeal will be referred to as to their status before the Tribunal for brevity and convenience.

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Precisely, the case of the petitioners is that on 13-7-2017 at about 9.45 am., one Mujahim, the son of petitioners 1 and 2 met with an accident at Mankadavu and in consequence thereof he died. Attributing negligence against the second respondent, the driver of the bus, bearing No.KL-18-D-7281, the petitioners claimed Rs.20 Lakh as compensation.

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The third respondent insurance company filed a written statement admitting the policy and disputing the liability. Negligence

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MACA No.3616 of 2019 3

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alleged against the second respondent is also denied. Quantum of compensation is also denied. Respondents 1 and 2 also filed a written statement in tune with the written statement filed by third respondent.

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The Tribunal recorded the evidence of PW1 and marked Exts.A1 to A6. Thereafter, an amount of Rs.17,22,000/- was awarded. The petitioners seek increase in the award.

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The learned counsel for the petitioners would submit that the Tribunal fixed the monthly income of the deceased as Rs.10, 000/though a specific case was put stating that the petitioner was employed as a salesman in Appollo Gold, Kozhikode, having an income of Rs.18,000/- per month at the time of accident. It is submitted by the learned counsel for the petitioners further that the Tribunal fixed only notional income though evidence supporting this contention was given by the mother, who was examined as PW1. The learned counsel has also

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given emphasis to the FIS attached to Ext.A1 FIR showing the status of the deceased as a person employed in Appollo Gold.

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Refuting the submission, the learned counsel for the insurance company would submit that though the petitioners claimed the job of the deceased as a salesman in Appollo Gold, no evidence in this regard was let in other than the oral version of PW1. Therefore,

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MACA No.3616 of 2019 4

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nothing more than Rs.10,000/- is liable to be granted in this case.

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On scrutiny of the evidence available, Rs.18,000/- per month was claimed by the petitioners as the income of the deceased on ascertaining that he was a salesman in Appollo Gold, Kozhikode. Though while giving evidence as PW1, the second petitioner, the mother, had given evidence in this regard, the best evidence to prove the income of the deceased by getting salary certificate from Appollo Gold or by examining anybody competent to speak about the income of the deceased was not adduced. Having noticed the above fact, the Tribunal fixed the monthly income as Rs.10,000/-. In fact, cogent and convincing evidence to prove the income of Mujahim at the time of death was not available. However, the age of Mujahim as 21 at the time of death was proved. Only oral evidence of PW1 and the recitals in the FIS are available to prove the job of Mujahim as Salesman in Appollo Gold. Then also, the income fixed not proved. Taking note of the above facts, in the absence of convincing evidence to prove his income, I am inclined to fix the same at Rs.12,000/- per month, instead of Rs.10,000/- fixed by the Tribunal.

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Thus the loss of dependency is required to be recalculated as under by giving 40% addition as settled in N ational Insurance

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MACA No.3616 of 2019 5

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Company v. Pranay Sethi and Ors. [(2017) 16 SCC 680]. Such amount is as follows :

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Rs.12,000 x 40% x ½ x 12 x 18 = Rs.18,14,400/-

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Thus Rs.18,14,400 - Rs.15,12,000/- = 3,02,400/- is granted

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It is submitted by the learned counsel for the insurance company that Rs.75,000/- granted under the head love and affection and Rs.25,000/- granted under the head pain and suffering are not liable to be granted. This submission appears to be convincing. Following the ratio in Pranay Sethi 's case ( supra ), no amount under the head love and affection is liable to be granted. Therefore, Rs.75,000/- granted under this head is liable to be reduced. As per the ratio of the decision in United Indian Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur & Ors.(2020(3) KHC 760) , no amount towards pain and sufferings is also liable to be granted. Therefore, Rs.25,000/- granted under this head is liable to be reduced. Thus, Rs.1 Lakh granted under the above heads is liable to be reduced. Thus the modified award is passed accordingly.

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Sl.	Head of claim	Amount	Modified amount
No.		awarded (Rs.)	in Appeal (Rs.)
1	Loss of dependency	15,12,000/-	18,14,400/-

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MACA No.3616 of 2019 6

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2	Love and affection	75,000/-	-
3	Pain and suffering	25,000/-	-
4	Parental consortium	80,000/-	80,000/-
5	Loss of estate	15,000/-	15,000/-
6	Funeral expenses	15,000/-	15,000/-
	Total	17,22,000/-	19,24,400/-

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In the result:

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a) This M.A.C.A is allowed in part.

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b) Modified award passed to the tune of Rs.19,24,400/(Rupees Nineteen Lakh twenty four thousand and four

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hundred only) to be paid by the 3^rd respondent jointly and severally with 8% interest granted by the Tribunal and the amount shall be deposited by the insurance company being the indemnifier of the insured.

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c) The 3^rd respondent is also directed to deposit Rs.19,373/being the court fee payable in this case in favour of MACT, Kozhikode within a period of two months from this date.

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d) The 3^rd respondent is directed to deposit the entire balance amount of compensation in the names of the petitioners as per the

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MACA No.3616 of 2019 7

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apportionment ordered by the Tribunal, within a period of two months from this date. On deposit, the petitioners 1 and 2 are at liberty to release the same forthwith. The amount awarded in favour of the third petitioner (minor) shall be kept in fixed deposit in a Nationalized Bank till he attains majority and the same shall be released after he attains majority.

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e) The amount if any, already deposited shall be adjusted.

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Sd/-

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A. BADHARUDEEN, JUDGE

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amk

Muhammed Muhiyudheen v. the Oriental Insurance Company Limited

Case brief

What is this about?

What did the court decide?

Muhammed Muhiyudheen v. the Oriental Insurance Company Limited

Case brief

What is this about?

What did the court decide?

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