Partly allowed

Abdulla v. Mr. Darshan Singh Sandhu

Kerala HC5 Jan 2022MACA/2475/2014

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the Motor Accidents Claims Tribunal's award, holding the compensation for loss of dependency inadequate. Re-fixing the deceased's notional income, the Court enhanced the award under loss of dependency. It also applied the non-derogation rule regarding consortium and adjusted funeral and estate expenses while deducting amounts over-awarded under other heads

What did the court decide?

The total compensation was enhanced to Rs. 11,08,800. An additional amount of Rs. 5,30,800 to be deposited by the 3rd respondent with interest at 7.5% per annum.

Abdulla Vs Mr. Darshan Singh Sandhu — 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 MURALI PURUSHOTHAMAN

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WEDNESDAY, THE 5^TH DAY OF JANUARY 2022 / 15TH POUSHA, 1943

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MACA NO. 2475 OF 2014

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AGAINST THE ORDER/JUDGMENT IN OPMV 1334/2008 DATED 26.11.2013 OF

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THE MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA

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APPELLANT/PETITIONERS:

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1 ABDULLA,AGED 54 YEARS S/O.MAMMU, THENGALAKANDY HOUSE, VANIMEL AMSOM,MAMBILAKKOL AMSOM, VANIMEL (P.O), VATAKARA TALUK.

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2 KUNHIPATHU, AGED 49 YEARS W/O.ABDULLA, THENGALAKANDY HOUSE, VANIMEL AMSOM,MAMBILAKKOL DESOM, VANIMEL (P.O), VATAKARA TALUK.

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BY ADVS. SRI.U.P.BALAKRISHNAN SRI.K.R.AVINASH (KUNNATH)

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RESPONDENT/RESPONDENTS:

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*1 DARSHAN SINGH SANDHU

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C-20/1-4,SECTION 4,PALMBEACH CHS,NERUL, NAVI MUMBAI,THANE,MAHARASHTRA STATE 400 705

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*2 MR.MANOJ, AGED 38 YEARS, S/O.RAM MILAN, TRANSPAR NAGAR,GARAKHPUR , SATAINI BARDAH,AZAMGARH – 400702 [RESPONDENTS 1 AND 2 ARE DELETED FROM THE PARTY ARRAY VIDE ORDER DTD. 13.10.21 IN I.A.NO.2/21]

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3 NEW INDIA ASSURANCE CO.LTD DIVISIONAL OFFICE, THANA PO, MAHARASHTRA STATE 400 705

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R3 BY ADV M.JACOB MURICKAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA NO. 2475 OF 2014

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JUDGMENT

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This appeal is filed by the petitioners in O.P. (MV)No.1334/2008, on the files of the Motor Accidents Claims Tribunal, Vadakara. The parties are referred to as per the status in the claim petition.

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The petitioners are the parents of deceased Aflah, who died in an accident on 06.10.2008. While the deceased Aflah was pillion riding on a motor cycle with Thwelheth, the motor cycle was hit by a tanker lorry bearing Registration No. MH43-U 2146 driven by the 2^nd respondent and owned by the 1^st respondent. Both Aflah and Thwelheth succumbed to the injuries sustained in that accident. The 3^rd respondent is the insurer of the said lorry. The petitioners claimed an amount of Rs.18,50,000/as compensation for the death of their son.

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3.The claim petition was considered and disposed of along with O.P.(M.V) No. 1333/2008 filed by the parents of deceased Thwelheth by a common award. The

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MACA NO. 2475 OF 2014

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respondents 1 and 2 were set ex-parte. The 3^rd respondent insurance company contested the claim and filed a written statement contending that the deceased Thwelheth was not having a valid driving licence at the time of the accident and he contributed to the accident. The insurance company also contended that the amounts claimed under various heads are excessive. They, however, admitted that the lorry was insured with them at the time of the accident.

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4.The Tribunal found that the accident happened due to the negligence of the 2^nd respondent, the driver of the lorry. The Tribunal awarded an amount of Rs.5,78,000/- as total compensation for the death of Aflah under various heads as under:

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	Head of claim	Amount claimed (Rs)	Amount Awarded (Rs)	Basis-vital details in a nut shell
1	Transport to hospital	5000	5000
2	Extra nourishment	5000	Not allowed

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MACA NO. 2475 OF 2014

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3	Damage to clothin articles	g &	5000	Not allowed
4	Funeral expenses		5000	5000
5	Loss of estate		5000	5000
6	Medical expe incurred before dea	nses th	25000	Not allowed
7	Loss of love affection	and	200000	50000
8	Shortened expect of life	ation	400000	35000
9	Loss of support assistance to applicants	and the	500000	75000
10	Future econ benefits dependency	omic and	600000	378000
11	Obseques		50000	25000
12	Pain and suffering		50000	Not allowed
	Total		1850000	578000

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According to the petitioners, the amount awarded

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by the Tribunal is totally inadequate. The Tribunal has

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MACA NO. 2475 OF 2014

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taken the income of the deceased as Rs.3,500/-. The deceased was a 2^nd year Degree student at the time of the accident. He had not started earning any income at the time of his death. Therefore, the monthly income of the deceased as on 2008 has to be fixed notionally and I re-fix the same as Rs.6,500/-. 40% has to be added towards future prospects. Hence, the monthly income of the deceased is re-fixed as Rs.9,100/- [6500 + 2600]. Since the deceased was aged 18 years, the multiplier to be adopted is '18'. The deceased being a bachelor, there shall be a deduction of 50% towards personal living expenses. Therefore, the compensation towards loss of dependency is re-calculated as Rs.9,82,800/- [9100 x 12 x 18 x 50/100]. The petitioners are therefore entitled for an enhanced amount of Rs. 6,04,800/- (9,82,800-3,78,000) under the head loss of dependency.

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Towards loss of love and affection, an amount of Rs.50,000/- has been awarded by the Tribunal, whereas no

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MACA NO. 2475 OF 2014

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amount has been awarded under the head loss of consortium. Following the ratio of the decision in National Insurance Company Limited v. Pranay Sethi and Ors. [(2017) 16 SCC 680] and N.Jayasree and others v . Cholamandalam Ms General Insurance Co. Ltd (2021 (6) KHC 163) , the petitioners are entitled to Rs.40,000/- each for loss of consortium with 10% increase for every 3 years. Accordingly, for loss of consortium the petitioners are entitled for Rs.88,000/- (44,000x2). The Hon'ble Supreme Court has held in United India

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Insurance Co.Ltd. v. Satinder Kaur [AIR 2020 SC 3076] , that, when compensation is awarded under the head loss of consortium, there is no need to award compensation for loss of love and affection as a separate head. Since the petitioners are entitled for Rs.88,000/towards loss of consortium, no further amount is to be awarded under the head loss of love and affection. Therefore, the petitioners are entitled to an enhanced

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MACA NO. 2475 OF 2014

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amount of Rs.38,000/- (88,000-50,000) under the head loss of consortium.

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Towards funeral expenses, only an amount of Rs.5,000/- has been awarded by the Tribunal. Going by the principles laid down in Pranay Sethi (supra), the petitioners are entitled to Rs.15,000/- towards funeral expenses. With an enhancement of 10% for every 3 years, the petitioners are entitled for an amount of Rs.16,500/(15000+1500) towards compensation for funeral expenses. Therefore, the petitioners are entitled for an enhanced amount of Rs.11,500/- [16,500-5000] under the . head funeral expenses

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8.The Tribunal has awarded only Rs.5,000/ towards loss loss of estate. In view of the law laid down by the Constitution Bench of the Apex Court in Pranay Sethi and Ors. (supra), the compensation payable under the conventional head of loss of estate should be Rs.15,000/-. The same has to be enhanced on percentage basis, at the

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MACA NO. 2475 OF 2014

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rate of 10%, in a span of every three years. Accordingly, the petitioners are entitled to an enhanced amount of Rs.11,500/- (16500-5000) as compensation under the head loss of estate.

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The petitioners have been awarded an amount of Rs.35,000/- towards shortened expectation of life and Rs.25,000/- under the head obsequies. I find that no amount can be awarded under the said heads. The petitioners are awarded Rs.75,000/- under the head loss of support and assistance to the applicants. The petitioners are not entitled to compensation under the head loss of support and assistance to the applicants. Therefore, an amount of Rs.1,35,000/- [35,000+25,000+75,000] has to be deducted under the said heads.

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Thus, the petitioners are entitled to a total compensation of Rs.11,08,800/- under the following heads:

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MACA NO. 2475 OF 2014

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	Head of claim	Amount awarded by Tribunal (Rs)	Amount awarded by this Court (Rs)
1	Transport to hospital	5000	5000
2	Extra nourishment	Not allowed	-
3	Damage to clothing & articles	Not allowed	-
4	Funeral expenses	5000	16,500
5	Loss of estate	5000	16,500
6	Medical expenses incurred before death	Not allowed	-
7	Loss of love and affection/Consortium	50000	88,000
8	Shortened expectation of life	35000	Nil
9	Loss of support and assistance to the applicants	75000	Nil
10	Future economic benefits and dependency	378000	9,82,800
11	Obsequies	25000	Nil
12	Pain and suffering	Not allowed	Nil
	Total	5,78,000	11,08,800

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MACA NO. 2475 OF 2014

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After deducting the amount of Rs.5,78,000/already awarded by the Tribunal, the petitioners will be entitled for an enhanced amount of Rs.5,30,800/- [11,08,800 – 5,78,000] (Rupees Five lakhs thirty thousand and eight hundred only) as compensation with interest at the rate of 7.5% per annum from the date of filing of the claim petition till realisation, with proportionate costs. The 3^rd respondent insurance company shall deposit the enhanced amount before the Tribunal within a period of two months from the date of receipt of a copy of this judgment.

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The appeal is disposed of as above.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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SB/06/01/2022

Abdulla v. Mr. Darshan Singh Sandhu

Case brief

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Abdulla v. Mr. Darshan Singh Sandhu

Case brief

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