Allowed

Sajeena S. v. Irshad a.

Kerala HC20 Nov 2021MACA/620/2014

Case brief

AI extract

What is this about?

The High Court enhanced compensation awarded by the Tribunal in a motor accident claim. The Court re-fixed the deceased's monthly income to Rs.7,000, increased loss of consortium to Rs.2,00,000, and eliminated the heads for loss of love and affection and pain and suffering following Supreme Court precedents. Final enhanced compensation of Rs.1,92,500 (50% due to contributory negligence) was awarde

What did the court decide?

Appellants awarded additional compensation of Rs.1,92,500 with interest at 9% per annum and proportionate costs from filing date of claim petition until realization.

Sajeena S. Vs Irshad a. — Insurance | 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 MURALI PURUSHOTHAMAN

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SATURDAY, THE 20^TH DAY OF NOVEMBER 2021 / 29TH KARTHIKA, 1943

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MACA NO. 620 OF 2014

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AGAINST THE AWARD DATED 26.06.2013 IN OPMV 418/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL.

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APPELLANTS/APPLICANTS:

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1 SAJEENA S. W/O. LATE SULAIMAN, SHEEJA MANZIL, MANAKKATTU VILAKOM, PUNNAKADU, CHITTATTUMUKKU P. O., KANIYAPURAM, THIRUVANANTHAPURAM. 2 AYISHA MOL S. S (MINOR), D/O. LATE SULAIMAN, REPRESENTED BY HER MOTHER, THE 1ST APPELLANT, SHEEJA MANZIL, MANAKKATTU VILAKOM, PUNNAKADU, CHITTATTUMUKKU P. O., KANIYAPURAM, THIRUVANANTHAPURAM. 3 ALFIYA MOL S. S. (MINOR), D/O. LATE SULAIMAN, REPRESENTED BY HER MOTHER, THE 1ST APPELLANT, SHEEJA MANZIL, MANAKKATTU VILAKOM, PUNNAKADU, CHITTATTUMUKKU P. O., KANIYAPURAM, THIRUVANANTHAPURAM. 4 ARIFA BEEVI W/O. MUHAMMED ABDUL KHADER, SHEEJA MANZIL, MANAKKATTU VILAKOM, PUNNAKADU, CHITTATTUMUKKU P. O., KANIYAPURAM, THIRUVANANTHAPURAM. 5 M. MOHAMMED ABDUL KHADER SHEEJA MANZIL, MANAKKATTU VILAKOM, PUNNAKADU, CHITTATTUMUKKU P. O., KANIYAPURAM, THIRUVANANTHAPURAM. BY ADVS. SRI. PIRAPPANCODE V.S. SUDHEER SRI. SHAJIN S. HAMEED

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M.A.C.A No.620 OF 2014

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RESPONDENTS/RESPONDENTS:

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1 IRSHAD A. S/O. ABDUL AZEEZ, AZEEZ MANZIL, DYNAMIC HOLLOW BRICKS, OPPOSITE POST OFFICE, KANIYAPURAM – 695 301. 2 ANZARI S/O. ABDUL AZEEZ, CHALIL VEEDU, ANDOOR KONAM, KANIYAPURAM – 695 301. 3 THE MANAGER, CHOLAMANDALAM, M.S. GENERAL INSURANCE CO. LTD, SARAN CHAMBERS, VELLAYAMBALAM, THIRUVANANTHAPURAM – 695 010.

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BY ADVS. SRI. P. JACOB MATHEW SRI. MATHEWS JACOB SR.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A No.620 OF 2014

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JUDGMENT

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The claimants in O.P. (M.V) No.418 of 2009 of the Motor Accidents Claims Tribunal, Attingal are the appellants. The service of notice to the 2^nd respondent is not complete as the notice has returned with the endorsement 'left India'. The 2^nd respondent is the driver of the vehicle involved in the accident. Since, the Insurance Company has admitted that there is a valid policy of insurance at the time of accident and there is no contention as regards the violation of conditions of policy, the service to the 2^nd respondent is dispensed with.

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Aggrieved by the amount of compensation awarded by the Tribunal the claimants have preferred this appeal. The parties in this appeal are referred to as per the status in the claim petition. The petitioners-claimants are the widow, two children and parents of Sulaiman,

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M.A.C.A No.620 OF 2014

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who died on 25.01.2009 in a motor vehicle accident

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which occurred on 21.01.2009. According to the petitioners-claimants, the deceased Sulaiman was travelling in a motor cycle bearing Reg.No.KL-22-6865 and the vehicle was hit by a mini lorry with Reg.No.KL22-2954 driven by the 2^nd respondent and owned by the 1^st respondent. The mini lorry was insured with the 3^rd respondent. In the claim petition, the petitionersclaimants contended that the accident happened due to rash and negligent driving of the vehicle by the driver of the mini lorry. An amount of Rs.17,00,000/- was claimed as total compensation by the petitioners-claimants.

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The 3^rd respondent insurance company admitted

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that the mini lorry was having a valid policy of insurance as on the date of accident but contended that the accident occurred due to the negligence of deceased Sulaiman.

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The Tribunal found that there is a c ontributory negligence on the part of the deceased Sulaiman in

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M.A.C.A No.620 OF 2014

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causing the accident. With regard to the compensation claimed by the petitioners-claimants the Tribunal awarded the following compensation and the insurer was directed to satisfy the award:-

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Part I

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Sl. No	Head of claim	Amount claimed	Amount awarded	Basis-vital details in a nut-shell
1	Loss of earning	Nil	Nil	Accident victim died soon after the accident
2	Partial loss of earnings	Nil	Nil	Accident victim died soon after the accident
3	Transportation to Hospital	1,000	3,000	Probable amount including ambulance charge
4	Extra Nourishment	Nil	Nil	No amount applied for
O	thers
5	Expenses of funeral and to bring in relatives to attend funeral and obsequies	20,000	8000	Probable amount
6	Damages to	500	500	Probable

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M.A.C.A No.620 OF 2014

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	clothing and personal articles			amount
7	Costs of medicine	50,000	5,000	Accident- victim died 4 days after the accident
P	art II
8	Compensation for pain and sufferings	50,000	10,000	Accident- victim died 4 days after the accident
9	Compensation for loss of love, affection and guidance	1,00,000 (joint head)	30,000	Probable amount
10	Compensation for loss of dependency, future income and other benefits and also loss of future prospects	15,00,000	10,80,000	(5000x12 =60,000- 1/5^th (12,000)= 48,000x15= 7,20,000 plus 50% of 7,20,000 (3,60,000)= 10,80,000
11	Compensation for loss of consortium	1,00,000 (joint head)	30000	Probable amount
12	Compensation for loss of estate	15,00,000 (joint head)	10000	Probable amount
	Total		11,76,500

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M.A.C.A No.620 OF 2014

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With regard to the income of the deceased the Tribunal has taken the monthly income as Rs.5,000/- at the time of accident. According to the petitionersclaimants, the deceased was employed in gulf country and was on leave at the time of the accident and had a job visa to go to Saudi Arabia. The Tribunal found that the monthly income which the deceased was earning abroad prior to the accident cannot be taken as the monthly income he was earning in India and arrived at a notional income of Rs.5,000/-.

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After hearing Ms. Megha the learned counsel for the petitioner and Mr. Mathews Jacob, the learned Senior Counsel for the Insurance company and following dictum laid down in Ramachandrappa v . Manager, Royal Sundaram Alliance Insurance Company

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Limited [2011 (13) SCC 236], I find that the monthly income of the deceased can be taken as Rs.7,000/-. Therefore, I re-fix the notional/monthly income of the deceased at the time of accident as Rs.7,000/- .

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M.A.C.A No.620 OF 2014

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The deceased was aged 37 years at the time of the accident and the Tribunal has rightly taken the multiplier as '15' and 40% for future prospects. However, in the light of the decision in Sarla Verma v . Delhi Transport Corporation [2009 (6) SCC 121], deduction towards the personal and living expenses of the deceased who was married and having 5 dependent members shall

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be 1/4. Therefore, I re-fix the deduction to be made towards the personal and living expenses of the deceased as 1/4.

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In view of re-fixation of monthly income as Rs.7000/-, the loss of dependency income by adding 40% towards future prospects is recalculated as [7000+2800=9800]. Accordingly, the amount that can be awarded under the head 'compensation for loss of dependency, future income and other benefits and loss of future prospects' awarded by the Tribunal at Serial No.10 part II of the above schedule is re-fixed as Rs.13,23,000/ -(Rs.9800x12x15-1/4).

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M.A.C.A No.620 OF 2014

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Under the head loss of consortium, though the petitioners-claimants claimed an amount of Rs.1,00,000/-, only Rs.30,000/- has been awarded. Following the ratio of the decision in National Insurance Company Limited v. Pranay Sethi and others [(2017) 16 SCC 680] the petitioners-claimants are entitled to Rs.40,000/- each for loss of consortium. Accordingly, the petitioners-claimants are entitled to an amount of Rs.2,00,000/- (40,000x5) under the head loss of consortium. The petitioners-claimants are awarded an additional amount of Rs.1,70,000/- for loss of consortium.

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The Tribunal has granted an amount of Rs.30,000/- towards compensation for love, affection and guidance. The Hon'ble Supreme Court has held in United India Insurance Co.Ltd. v Satinder Kaur [AIR 2020 SC 3076], that when compensation is awarded under the head loss of consortium, there is no justification in awarding compensation for loss of love and affection as a

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M.A.C.A No.620 OF 2014

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separate head. Therefore, Rs. 30,000/- awarded under

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this head has to be reduced.

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For compensation under the head funeral expenses only Rs.8,000/- has been awarded for which the petitioners-claimants are entitled a further amount of Rs.7,000/- and I re-fix the amount to be awarded under the head funeral expenses as Rs.15,000/-.

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With regard to loss of estate, the petitionersclaimants are awarded only Rs.10,000/-, whereas, the petitioners-claimants are entitled to Rs.15,000/- under the said head. Therefore, the petitioners-claimants are entitled for an additional amount of Rs.5,000/- under the head compensation for loss of estate.

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The Tribunal has awarded an amount of Rs.10,000/- towards pain and sufferings. The petitionersclaimants are not entitled for any amount under the said head in the light of the decision in United India Insurance Co.Ltd. V Satinder Kaur [AIR 2020 SC 3076]. So the amount of Rs.10,000/- awarded under

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M.A.C.A No.620 OF 2014

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the said head is to be deducted from the total compensation arrived at. Therefore, the total compensation is recalculated as shown below;

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Part I

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Sl. No	Head of claim	Amount claimed	Amount awarded by Tribunal	Amount awarded by this Court
1	Loss of earning	Nil	Nil	Nil
2	Partial loss of earning	Nil	Nil	Nil
3	Transportation to Hospital	1,000	3,000	3000
4	Extra Nourishment	Nil	Nil	Nil
	Others
5	Expenses of funeral and to bring in relatives to attend funeral and obsequies	20,000	8,000	15,000
6	Damages to clothing and personal articles	500	500	500
7	Costs of medicine	50,000	5,000	5,000
	Total	80,500	16,500	23,500
	Enhancement in Pa	rt IRs.7	,000/-

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Part II

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M.A.C.A No.620 OF 2014

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8	Compensation for pain and sufferings	50,000	10,000	Nil
9	Compensation for loss of love, affection and guidance	1,00,000 (joint head)	30,000	Nil
10	Compensation for loss of dependency, future income and other benefits and also loss of future prospects	1,50,000	10,80,000	13,23,000/-
11	Compensation for loss of consortium	1,00,000 (joint head)	30,000	200000
12	Compensation for loss of estate	15,00,000 (joint head)	10,000	15,000
	Total	19,00,000	11,60,000	15,38,000

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Enhancement in Part II Rs.3,78,000/-

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In the result, this appeal is allowed in part and the appellants are awarded an additional compensation of Rs.3,85,000/- (Rupees Three lakhs Eighty Five Thousand only). Since the Tribunal has found contributory negligence on the part of deceased Sulaiman, the appellants are entitled only to 50% of the

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M.A.C.A No.620 OF 2014

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enhanced compensation. Accordingly, the appellants are entitled to an amount of Rs.1,92,500/- (Rupees one lakh ninety two thousand and five hundred only) with interest at the rate of 9% per annum from the date of filing of the claim petition till realisation, with proportionate costs. The 3^rd respondent insurer shall deposit the additional compensation granted in this appeal with the interest and proportionate costs, which I fix as Rs.3000/- before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The apportionment and release of the amount will be as per the directions made by the Tribunal in the award.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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SPR

Sajeena S. v. Irshad a.

Case brief

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Sajeena S. v. Irshad a.

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