Allowed

Saidalavi v. Mohammedali

Kerala HC6 Jan 2022MACA/1568/2012

Case brief

AI extract

What is this about?

The High Court of Kerala, in this Motor Accident Claims Appeal, increased the compensation awarded by the Tribunal for the death of an eight-year-old child. The Court applied Supreme Court precedents to fix dependency loss and mandated conventional heads, ordering the insurer to deposit an enhanced amount.

What did the court decide?

Third respondent directed to deposit Rs.4,57,844/- with interest and proportionate cost within sixty days.

Saidalavi Vs Mohammedali — 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 C.S.DIAS

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THURSDAY, THE 6^TH DAY OF JANUARY 2022 / 16TH POUSHA, 1943

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MACA NO. 1568 OF 2012

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AGAINST THE AWARD DATED 30.04.2012 IN OPMV 334/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI

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APPELLANTS/PETITIONERS:

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1 SAIDALAVI

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AGED 35 YEARS

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S/O.LATE ALASSAN, MELAYIL HOUSE, POOTHAMKUNHI, A.R.NAGAR P.O., KODUVAYOOR, MALAPPURAM DISTRICT.

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2 ARIFA AGED 30 YEARS W/O.SAIDALAVI, MELAYIL HOUSE, POOTHAMKUMHI, A.R.NAGAR P.O., KODUVAYOOR, MALAPPURAM DISTRICT. BY ADV SRI.K.ABDUL JAWAD

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RESPONDENTS/RESPONDENTS:

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1 MOHAMMEDALI

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S/O.KUNHIMOHAMMED, CHOLAKKAPARAMBIL HOUSE, N.K.ROAD, TIRURANGADI P.O., MALAPPURAM DISTRICT (DRIVER)-676505.

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2 SHAMSUDHEEN S/O.ABDURAHMAN KUTTY, KUNNUMMAL HOUSE, PARAPPANANGADI P.O., MALAPPURAM DISTRICT (RC OWNER)-676505. 3 THE NEW INDIA ASSURANCE CO.LTD. VRIKKODAN BUILDING, NILAMBUR ROAD, MANJERI (INSURER)-676505. BY ADVS. SRI.LAL K.JOSEPH SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.1568-2012

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Dated this the 6^th day of January,2022

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J U D G M E N T

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The appellants were the petitioners in O.P (MV)No.334/2009 on the file of the Motor Accidents Claims Tribunal, Manjeri. The respondents in the appeal were the respondents before the Tribunal.

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The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation on account of the death of their eight year old son named Ashiq Suhail @ Ashif Suhail(deceased). It was their case that, on 16.10.2008, while the deceased was returning from school, he was hit by an autorickshaw bearing registration No. KL 10 X 7823 at Tirurangadi, driven by the first respondent in a rash and negligent manner. The deceased sustained serious injuries and lost his life on the 10^th day of the accident. The second

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M.A.C.A.No.1568-2012

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respondent was the owner and the third respondent was the insurer of the autorickshaw. Hence, the appellants claimed a compensation of Rs.2,36,000/-

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from the respondents, which claim was limited to Rs.2,00,000/-.

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The respondent Nos.1 and 2 did not contest the proceedings and were set ex parte.

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The third respondent had filed a written statement, admitting that the autorickshaw had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the deceased.

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The appellants produced and marked Exhibits

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A1 to A8(e) in evidence. The third respondent produced the charge sheet, which was marked as Exhibit. B1 in evidence.

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The Tribunal, after analysing the pleadings

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and materials on record, allowed the claim petition in

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M.A.C.A.No.1568-2012

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part, by permitting the appellants to recover from the third respondent an amount of Rs.1,13,156/- with interest and proportionate cost.

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Dissatisfied with the quantum of

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compensation awarded by the Tribunal, the petitioners are in appeal.

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Heard; Sri. K. Abdul Jawad, the learned counsel appearing for the appellants/petitioners and Sri.Lal K. Joseph, the learned counsel appearing for the third respondent/insurer.

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The sole question that arises for

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consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just?

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Negligence and liability

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Exhibit A4 charge sheet filed by the police substantiates that the accident occurred due to the negligence of the first respondent. The respondents

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M.A.C.A.No.1568-2012

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have not let in any evidence to discredit Exhibit.A4 charge sheet. Similarly, the third respondent has not proved that the second respondent had violated the insurance policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent arising out of the accident.

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The deceased was aged 8 years old at the time of his accident. The Tribunal had awarded a consolidated compensation of Rs.1,13,156/-.

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In Kurvan Ansari Vs Shyam Kishore Murmu [(2021) SCC OnLine SC 1060] and Kishan Gopal & Anr. v. Lala & Others [(2014)1 SCC 244], the Hon’ble Supreme Court has fixed the notional income of minor children at Rs.30,000/- and adopted the multiplier of ‘15’.

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In the light of the law laid down in Kurvan Ansari and Kishan Gopal (supra), I am of the firm view that the same yardstick has to be followed in the

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M.A.C.A.No.1568-2012

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present case. Therefore, I award the appellants an amount of Rs.4,50,000/- as consolidated compensation towards loss of dependency, instead of Rs.2,00,000/awarded by the Tribunal.

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Conventional heads of compensation

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In clause (viii) of paragraph 61 of National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680], the Honourable Supreme Court has held that the dependents of the deceased are entitled to compensation under the conventional heads viz., funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/and Rs.40,000/respectively. It is also observed that the conventional heads of compensation have to be enhanced every three years by 10%.

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In N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd. [(2021) SCC Online SC 967] and Rasmita Biswal and others vs. The

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M.A.C.A.No.1568-2012

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Divisional Manager, National Insurance Co., Ltd and another [(2021) SCC Online SC 1193], the Hon'ble Supreme Court has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accidents. Thus, it is to be interpreted and inferred that the escalation of 10% as per Pranay Sethi (supra) is to be awarded after every three years from the date of pronouncement of the judgment, which was rendered in the year 2017, and not for accidents that occurred three years after 2017.

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In view of the law laid down in Pranay Sethi , N.Jayasree and Rasmita Biswal and others (supra) , I hold that the appellants are entitled to an amount of Rs.44,000/- each under the head ‘loss of consortium’, totalling to an amount of Rs.88,000/- and Rs.16,500/each under the heads ‘funeral expenses’ and ‘loss of estate’, totalling to an amount of Rs.33,000/-, i.e., a

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M.A.C.A.No.1568-2012

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grand total of Rs.1,21,000/- under the ‘conventional heads’ of compensation. Thus, the appellants are entitled to a total amount of Rs.5,71,000 – Rs.1,13,156 awarded by the Tribunal. Hence, the appellants are entitled to an enhancement of Rs.4,57,844/- with interest at the rate of 7% per annum from the date of petition till the date of deposit, and proportionate cost.

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Although the appellants had claimed a compensation of Rs.2,00,000/- I have awarded them more compensation than what is claimed in the claim petition following the ratio in Kurvan Ansari and Kishan Gopal (supra). The said course is permissible in view of the law laid down in Nagappa v. Gurudayal Singh [2003 (1) KLT 115 SC] and Rajesh v. Rajbir Singh [2013 (3) KLT 89 SC] .

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In the result, the appeal is allowed by directing the third respondent to deposit an amount of Rs.4,57,844/- with interest and proportionate cost

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M.A.C.A.No.1568-2012

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before Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellants in equal shares and in accordance with law.

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SSd/

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C.S.DIAS,JUDGE

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rmm/06/01/2022

Saidalavi v. Mohammedali

Case brief

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Saidalavi v. Mohammedali

Case brief

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