Allowed

Fathimakutty.v.K. v. Firos Khan.M.P.

Kerala HC3 Nov 2022MACA/466/2012

Case brief

AI extract

What is this about?

Four appellants, legal heirs of a deceased, challenged the compensation award of the Motor Accidents Claims Tribunal. The High Court enhanced the compensation by re-fixing monthly income at Rs.6,500, correcting the multiplier from 7 to 9, and awarding higher amounts for funeral expenses, loss of estate, and consortium.

What did the court decide?

Additional compensation of Rs.4,83,800 with interest at 7.5% p.a. awarded from the date of original petition until realization.

Fathimakutty.v.K. Vs Firos Khan.M.P. — Motor Accident Claims | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

¶4

THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944

¶5

MACA NO. 466 OF 2012

¶6

AGAINST THE AWARD DATED 04.10.2011 IN OP(MV) No.762/2008 OF MOTOR

¶7

ACCIDENTS CLAIMS TRIBUNAL, MANJERI

¶8

APPELLANTS/PETITIONERS:

¶9

1 FATHIMAKUTTY.V.K. W/O.MAMMUTTY (LATE), KATTUPETTIYIL HOUSE, OLAVATOOR P.O., MALAPPURAM DISTRICT.

¶10

2 ABDUL AZZEZ.V.K. S/O.MAMMUTTY (LATE), KATTUPETTIYIL HOUSE, OLAVATOOR P.O., MALAPPURAM DISTRICT.

¶11

3 MYMOONATH V.K., D/O.MAMMUTTY (LATE), KATTUPETTIYIL HOUSE, OLAVATTOOR P.O., MALAPPURAM DISTRICT.

¶12

BY ADVS.SRI.BABU S. NAIR

¶13

 SRI.K.RAKESH

¶14

RESPONDENTS/RESPONDENTS:

¶15

1FIROS KHAN.M.P.,
S/O.SAIDALAVI HAJI, MADATHIPARA HOUSE,
PULIYAKKODE P.O., MALAPPURAM DISTRICT,
PIN-673 641.

¶16

2K.ISMAYIL,
THAVANIKOTIL HOUSE,
ELAYOOR, AREACODE,
MALAPPURAM DISTRICT,
PIN-673 639.
3ICICI LUMBARD GENERAL INSURANCE COMPANY LIMITED,
CALICUT, PIN-673 301.

¶17

R3 BY ADV SRI.LATHEESH SEBASTIAN

¶18

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
03.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶19

MACA.No.466 of 2012

¶20

¶21

JUDGMENT

¶22

Dated this the 3^rd day of November, 2022

¶23

This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Manjeri (for short ‘the Tribunal’) in OP (MV) No.762/2008 on 04.10.2011.

¶24

The appeal is filed by legal heirs and dependents of one Mr.Mammutty who succumbed to the injuries sustained in a motor accident occurred at 6 p.m. on 28.02.2008 near a busstop in Kondotty bypass road. He was knocked down by a bus which was driven by its driver in a rash and negligent manner and thus sustained fatal injuries. He succumbed to those injuries after treatment for 26 days. Rs.4,50,000/- is claimed as compensation from the respondents who are none other than the driver, owner and insurer of the offending bus.

¶25

1^st and 2^nd respondents filed written statements raising contentions that the accident was occurred out of sole negligence on the part of the deceased. The 1^st respondent was alleged as driving the bus with utmost care and caution and observing all regulations of traffic. The policy coverage of the

¶26

¶27

MACA.No.466 of 2012

¶28

offending bus covering the date of accident with the 3^rd respondent is admitted by him. The 3^rd respondent has also admitted the policy issued in respect of the vehicle and its coverage as on date of accident.

¶29

Evidence was adduced before the Tribunal by both sides. Exts. A1 to A3 and A3 series were marked by the petitioners and Ext.B1 by the 3^rd respondent. The Tribunal found on the basis of the evidence that the driver of the bus was responsible for the accident by his rash and negligent driving. The Tribunal had also arrived at Rs.2,12,259/- as the quantum of compensation payable to the petitioners and the 3^rd respondent insurer was directed to deposit the same with interest at the rate of 9% per annum from the date of Original Petition till realisation. The Tribunal had also apportioned the quantum of compensation payable to each of the petitioners. Aggrieved by the quantum of compensation awarded by the Tribunal the petitioners have approached this Court in the appeal on hand.

¶30

It is contended by Sri. Rakesh K. the learned counsel for the appellants that the Tribunal failed to fix a reasonable sum as monthly income of the deceased and therefore is unjustified

¶31

MACA.No.466 of 2012

¶32

¶33

in assessing the compensation for loss of earning and permanent disability. The learned counsel canvassed for a re-fixation of the monthly income based on fixation of income by the Apex Court in Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236]. The learned counsel has also pointed out that compensation stands awarded under heads funeral expenses, loss of estate and loss of consortium are also on the lower side. He canvassed for a fixation on the basis of the sums stand fixed by the Apex Court in National Insurance Company Ltd. v. Pranay Sethi [ 2017 (4) KLT 662 (SC) ].

¶34

The learned counsel on behalf of the 3^rd respondent has contended that petitioners are not entitled to get any compensation under heads pain and suffering and loss of love and affection. According to him Rs.10,000/- stands awarded by the Tribunal under the head loss of love and affection needs to

¶35

be deducted from the total sum arrived at as additional compensation. The learned counsel also urged that ‘7’ adopted as multiplier by the Tribunal is correct in a context where evidence was not available to establish actual age of the deceased.

¶36

MACA.No.466 of 2012

¶37

¶38

The monthly income was fixed by the Tribunal notionally as Rs.3,000/- and compensation was calculated on it’s basis. The accident being in the year 2008, Rs.6,500/- is found appropriate to be fixed as monthly income in the case on hand. There is total want of materials to prove the age of the deceased. The claim of the petitioners was that the deceased was aged 60 years at the time of his death in the accident. Postmortem certificate is produced and marked in evidence as Ext.A2 and the age of the deceased is shown there as 60 years. In Sarla Verma V. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] the multiplier applicable in the case of a person aged 60 years is sated as 9. Therefore, the Tribunal is not justified in adopting 7 as the multiplier. 10% addition ought to have been made to the monthly income in consideration of loss of future prospects. Deceased having been survived by three family members, 1/3^rd ought to have been deducted from the monthly income in consideration of personal expenditure liable to be met with by him had he been alive.

¶39

Taking Rs.6,500/- as the monthly income and 9 as the multiplier and 10% added towards future prospects and 1/3^rd deducted, a sum of Rs.5,14,800/- is arrived at as

¶40

MACA.No.466 of 2012

¶41

¶42

compensation payable under the head loss of dependency. Rs.1,68,000/- stands awarded by the Tribunal when adjusted, Rs.3,46,800/- is arrived at as the additional compensation payable. As per Pranay Sethi supra the petitioners are entitled to get Rs.16,500/- each under the heads loss of estate and funeral expenses. Rs.5,000/- and Rs.3,000/- stand awarded by the Tribunal under the respective heads, when adjusted, the petitioners will get Rs.11,500/- and Rs.13,500/- as additional compensation. Under the head loss of consortium each of the petitioners are entitled to get Rs.44,000/- and thus Rs.1,32,000/- is payable in total as compensation. Rs.10,000/each stands awarded under the head loss of consortium and loss of love and affection when adjusted in the total additional compensation now arrived at, the petitioners will get Rs.1,12,000/-.

¶43

In the above manner of re-assessment, the petitioners will get Rs.4,83,800/- (Rupees Four Lakhs Eighty Three Thousand and Eight Hundred only) as total additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3^rd respondent insurer shall

¶44

MACA.No.466 of 2012

¶45

¶46

deposit the above sum with interest at the rate of 7.5% per annum and the sum stands originally awarded with interest at the rate specified in the impugned award (if not already paid), within a period of two months from the date of receipt by it of a certified copy of the judgment.

¶47

MACA stands allowed accordingly.

¶48

Sd/-

¶49

MARY JOSEPH JUDGE

¶50

MJL

Fathimakutty.v.K. v. Firos Khan.M.P.

Case brief

What is this about?

What did the court decide?

Fathimakutty.v.K. v. Firos Khan.M.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

National Insurance Co. Ltd. Vs Abubakkar

Shamzudeen Vs Sajeev.P.

Arun Prakash Vs Charles Makinson Sanders Boston, Mannach

New India Assurance Vs Omana

Anilkumar Vs B.H.Shyjubal

Kausalya Vs Mohanan Nair