Allowed

Balan Nair v. Jubair.P.P and Others

Kerala HC16 Jun 2022MACA/1477/2011

Case brief

AI extract

What is this about?

This appeal challenged the Motor Accidents Claims Tribunal's award. The court enhanced compensation for loss of dependency, love and affection, funeral expenses, and loss of estate based on Supreme Court precedents. The award for pain and sufferings was struck down as the deceased died immediately.

What did the court decide?

Enhanced compensation awarded for loss of dependency, love and affection, funeral expenses, and loss of estate. Award for pain and sufferings set aside. Interest directed.

Balan Nair Vs Jubair.P.P and Others — Motor Accident Claims | Kerala HC (2022)

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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 BASANT BALAJI

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THURSDAY, THE 16TH DAY OF JUNE 2022 / 26TH JYAISHTA, 1944

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MACA NO. 1477 OF 2011

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 OPMV 28/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE

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APPELLANT/S:

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1 BALAN NAIR,R/AT NEDUMKANDATHIL HOUSE, PO SOUTH KODUVALLY,, VIA KODUVALLY,KOZHIKODE.

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2 SREEMATHI,W/O.BALAN NAIR,R/AT NEDUMKANDATHIL HOUSE, PO SOUTH KODUVALLY,, VIA KODUVALLY,KOZHIKODE.

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3 ANUJA, D/O.BALAN NAIR,R/AT NEDUMKANDATHIL HOUSE, PO SOUTH KODUVALLY, VIA KODUVALLY,KOZHIKODE.

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BY ADV SRI.AVM.SALAHUDIN

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RESPONDENT/S:

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1 JUBAIR.P.P,R/AT PULPARAMBIL HOUSE,PO KOODATHAI BAZAR,, OMASSEERY ,KOZHIKODE.

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2 M.SAFARULLA, S/O.KOYA MOIDEEN R/AT MELOTH MANNIL HOUSE,PO THAMARASSERY,KOZHIKODE

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3 RELIANCE GENERAL INSURANCE COMPANY LIMITED,2ND FLOOR,CITADEL ARCADE, OPP.TAGORE, CENTENARY HALL,RC ROAD,KOZHIKODE.

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4 NIYAS CHOLA, S/O.UNNIMOYIN KUTTY HAJI

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R/AT KOTTAYIL HOUSE, PO CHERUVADI,MAVOOR,KOZHIKODE

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5 ABDURAHIMAN, S/O.MOIDEENKUNHI, R.AT/ KALATHINGAL HOUSE,PO KARASSERY,KADDAD,KOZHIKODE.

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6 THE ORIENTAL INSURANCE COMPANY LIMITED DIVIL.OFFICE:11,PRAMOD BUILDING,CHEROOTY ROAD KOZHIKODE.

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BY ADVS.SRI.ARUN.B.VARGHESE

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SRI.G.BALU/SRI.A.R.GEORGE
SRI.JAYKAR.K.S.
SMT.M.RAMYA RAMACHANDRAN
SRI.K.V.SACHIDANANDAN

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OTHER PRESENT:

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A.R.GEORGE - S.C

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 16.06.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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MACA NO. 1477 OF 2011 -2-

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JUDGMENT

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(Dated this the 16^th day of June 2022)

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Dissatisfied with the award of compensation in O.P. (M.V.) No.28 of 2009 on the files of the Motor Accidents Claims Tribunal, Kozhikode, the legal heirs of deceased Anoop, have filed this appeal.

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On 19.7.2008 at about 12.45, while the deceased was riding motor cycle bearing reg.No.KL-11-X-5550 from Mukkam to Arekodu and when reached at Mukkam, another motorcycle bearing reg.No.KL-11-G-8489 came from Koodaranhy hit against him and he was thrown to the road. A lorry bearing reg.No.KL-57-A-791 came from Mukkam Arrecode ran over the deceased causing serious injuries to him and he died at Medical College Hospital, Kozhikode. He was aged 21 years. He was a two wheeler mechanic and LIC agent earning Rs.10,000/- per month. The accident happened due to the negligence of lorry driver, 2^nd respondent. The first respondent is the owner and third respondent is the insurer.

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MACA NO. 1477 OF 2011

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-3-

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The third respondent admitted the insurance policy of the lorry bearing reg.No.KL-57-A-791 and disputed the alleged negligence against the driver. According to them, the accident happened due to the negligence on the part of the rider of the motorcycle bearing reg.No.KL-11-G-8489.

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The sixth respondent denied the insurance policy of motor cycle bearing reg.No.KL-11-G-8489 as on the date of accident. According to them, the insurance policy was taken after the accident and hence, they are not liable to pay compensation.

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The Tribunal awarded a compensation of Rs.2,35,000/- with 7% interest from 2.1.2009. The 3^rd respondent was directed to deposit the entire amount with liberty to recover 50% amount from the fourth respondent, registered owner of the motor cycle.

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Heard.

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The counsel for the appellants mainly contended

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MACA NO. 1477 OF 2011

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-4-

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that the deceased was aged 21 years and was earning a monthly income of Rs.10,000/-. But the Tribunal took the income as Rs.2,500/- per month. Going by the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236], the notional income of the deceased can be taken as Rs.6,500/- as the accident happened in the year 2008. As per the decision reported in Sarla Verma v. Delhi Transport Corporation & Another (2010 (2) KLT 802), the multiplier is taken as 18. The counsel further submits Since the deceased was aged below 40 years and self-employed, going by the decision reported in National Insurance Company Ltd. v. Pranay Sethi [2017 (16) SCC 680], an addition of 40% of the income should be taken as future prospects. Taking the notional income of the deceased as Rs.6,500/- and adding 40% of the same, the income of the appellant would be Rs.9,100/- (6,500 + 2,600). Thus, the compensation for loss of dependency can be worked out Rs.9,100 x 12 x 18/2 = Rs.9,82,800/-. The Tribunal already awarded Rs.2,10,000/- under the head.

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MACA NO. 1477 OF 2011

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-5-

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The Claimants are the parents and sister of the deceased. Appellant Nos.1 and 2, being the parents of the deceased, are entitled to compensation for loss of consortium of Rs.40,000/- each. The Tribunal, though has not awarded compensation under loss of consortium, has awarded Rs.10,000/- under the head loss of love and affection. In view of the decision reported in Magma General Insurance Co.Ltd. v. Nanu Ram Alias Chuhru Ram & Others [(2018) 18 SCC 130] , I am inclined to grant Rs.80,000/- under loss of love and affection.

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Towards funeral expenses, the Tribunal has awarded Rs.3,000/- only, which I am inclined to enhance to Rs.15,000/-.

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As far as loss of estate, nothing was given. As per the decision reported in National Insurance Company Ltd. v. Pranay Sethi [2017 (16) SCC 680], Rs.15,000/- is granted towards loss of estate.

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The counsel for the respondents submits that going

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MACA NO. 1477 OF 2011

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-6-

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by the decision reported in United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and others [2020(3) KHC 760] , since this is a death case, Rs.10,000/- allowed towards pain and sufferings cannot granted. It is true that said Anoop died in Medical College Hospital, Kozhikode due to the injuries sustained in the accident. Hence, the award of Rs.10,000/- by the Tribunal towards pain and sufferings, is set aside.

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Accordingly, the following enhancements are made to the award passed by the Tribunal:

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Sl. No.	Head of Claim	Amt. Awarded by Tribunal (Rs.)	Amt. Enhanced in appeal (Rs.)
1.	Loss of dependency	2,10,000/-	9,82,800/-
2.	Loss of love and affection	10,000/-	70,000/-
3.	Funeral expenses	3,000/-	12,000/-
4.	Loss of estate	…..	15,000/-
	Total	2,23,000/-	10,79,800/-
	Amount enhanced – 10,92,	800 – 2,23,000 =	8,56,800/-.

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In the result, the appeal is allowed. The award of Rs.10,000/- towards pain and sufferings is set aside. The

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MACA NO. 1477 OF 2011

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Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amounts at the rate of 7% from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest shall run at the rate ordered by the Tribunal from the date of petition.

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sd BASANT BALAJI, JUDGE

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dl/

Balan Nair v. Jubair.P.P and Others

Case brief

What is this about?

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Balan Nair v. Jubair.P.P and Others

Case brief

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