Partly allowed

Francis v. Ali

Kerala HC11 Mar 2022MACA/962/2013

Case brief

AI extract

What is this about?

This court allowed an appeal against the Motor Accidents Claims Tribunal award in a death claim petition. The Tribunal had awarded Rs.99,000 compensation for the death of the appellant's mother. The High Court enhanced the compensation to Rs.25,500 against the insurer's liability for funeral expenses and loss of estate, denying parental consortium as the children were grown-up.

What did the court decide?

Enhanced compensation of Rs.25,500 with interest at 7.5% p.a. granted against the insurer to be distributed equally among appellants.

Francis Vs Ali — 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 MRS. JUSTICE M.R.ANITHA

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FRIDAY, THE 11^TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943

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MACA NO. 962 OF 2013

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AGAINST THE ORDER/JUDGMENT IN OPMV 1364/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL

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ERNAKULAM

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APPELLANTS/CLAIMANTS:

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1 FRANCIS M.A. S/O.LATE ANTONY, MANAKKAL HOUSE, MALAYILPARAMBU, KAKKANAD.P.O, THUTHIYOOR, KOCHI.

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2 ROSY.M.A W/O.REGHU, AMBARAM HOUSE, CHERUTHURUTHY.P.O, VALLATHOL NAGAR, THRISSUR.

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3 BENEDICT.M.A

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S/O.LATE ANTONY, MANAKKAL HOUSE, KONTHURUTHY, THEVARA.P.O, KOCHI.

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4 GABRIEL VALSAN.M.A S/O.LATE ANTONY, MANAKKAL HOUSE, PUTHIYANGADI.P.O., PAVANGAD, KOZHIKODE.

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5 JAMES BNABY.M.A.

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S/O.LATE ANTONY, MANAKKAL HOUSE, KAKKANAD.P.O, THUTHIYOOR, KOCHI. BY ADV SRI.MANU ROY

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RESPONDENTS/RESPONDENTS:

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1 ALI M.P. S/O.PAREED, MURIYANKARA HOUSE, KAKKANAD.P.O, KOCHI-682 030.

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2 T.M.ABDUL MAJEED S/O.MUHAMMED, THAMARASSERY HOUSE, THRIKKAKARA.P.O., KOCHI-682 021.

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3 THE NATIONAL INSURANCE CO. LTD. COMMERCIAL UNION HOUSE, MARAR ROAD, WELLINGTON ISLAND, KOCHI-03. BY ADV SMT.DEEPA GEORGE

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OTHER PRESENT:

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DEEPA GEORGE- R3

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA No.962/2013 2

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JUDGMENT

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This appeal has been filed against the Judgment & Award passed in O.P.(M.V)No.1364/2009 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act), claiming a total compensation of Rs.2,50,000/-, which was limited to Rs.2,00,000/-, for the death of Annamma Antony @ Anna, the mother of appellants/claimants out of a motor accident occurred, while she was walking along Chittoor road, on 30.05.2009 at about 10.30 a.m by hit with a bus bearing Reg.No.KL-7 BJ 3007. She was taken to General Hospital, Ernakulam and succumbed to the injuries on the same day at 10.45 a.m.

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It is alleged that the accident happened due to the rash and negligent driving of the first respondent. Second respondent is the owner of the offending vehicle and third respondent is the insurer.

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Before the Tribunal, respondents 1 and 2 remained exparte. Third respondent filed written statement admitting

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MACA No.962/2013 3

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the policy coverage with respect to the offending vehicle. But the rashness and negligence on the part of the first respondent, driver is denied. It is also contended that she died

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on the spot instantaneously. It is also contended that the deceased had no income or occupation and the compensation claimed under different heads are highly excessive.

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Exts.A1 to A8 marked from the side of the appellants/claimants. There was no oral evidence on either side.

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The Tribunal on evaluating the pleadings and materials produced from the side of the claimants came to a conclusion that the accident happened due to the rash and negligent driving of the first respondent, second respondent is vicariously liable and third respondent insurer is directed to make good the loss sustained by the second respondent. Total compensation of Rs.99,000/- has been awarded.

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Dissatisfied with the quantum of compensation awarded by the Tribunal, appellants came up in appeal before this Court on various grounds stated in the memorandum of appeal.

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MACA No.962/2013 4

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Notice to respondents 1 and 2 is dispensed with at the risk of the appellants. Third respondent appeared through Adv.Smt. Deepa George. Lower court records were called for and perused.

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Heard both sides.

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According to the learned counsel for the appellants/claimants (hereinafter be referred as the claimants), the claimants were dependents of the deceased mother. But the Tribunal only awarded Rs.50,000/- towards loss of dependency. It is also contended that deceased was an agriculturist, earning Rs.2,000/- per month. It is also contended that compensation awarded towards funeral expenses is very low and further that no amount was awarded towards loss of estate. Though there was contention to award consortium it was subsequently conceded that since all the children were grown up they are not entitled to consortium.

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First question is with regard to the loss of dependency. Admittedly the deceased was 74 year old lady. None of the claimants mounted the box to prove their claim that they were dependents of the deceased. So the finding of

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MACA No.962/2013 5

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the Tribunal that the deceased is not an earning member and the claimants were not financially depending on the deceased can very well be accepted. However, the Tribunal already awarded Rs.50,000/- towards loss of dependency being legal heirs and they should be paid minimum compensation which would have been payable under Section 163A of the Act in the event of claim being less under Section 166 of the Act. Hence, no enhancement is necessary towards loss of dependency than that has been awarded by the Tribunal.

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Next is with regard to the conventional heads. Though the learned counsel for the appellants pray for awarding parental consortium with respect to the death of the mother as per the settled principles in Magma General Insurance Co. Ltd v. Nanu Ram alias Chuhru Ram and Ors. [(2018) 18 SCC 130] , since the claimants are all grown up children, living separately in different addresses, they are not entitled for getting parental consortium. An amount of Rs.25,000/- has already been awarded towards loss of love and

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affection also. Further it is noticed that towards funeral expenses the Tribunal awarded only Rs.7,500/-. As per the

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MACA No.962/2013 6

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dictum laid down in Pranay Sethi followed by Magma General Insurance Co.'s case, the claimants are entitled to get Rs.16,500/- each towards funeral expenses and loss of estate. Deducting the amount already awarded towards funeral expenses the balance would be Rs.9,000/- [16,500-7,500]. No amount is awarded towards loss of estate. Claimants are entitled to get Rs.16,500/ - towards loss estate.

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In the result, the appellants/claimants are allowed to realise enhanced compensation of Rs.25,500/- [9,000+16,500] (Rupees twenty five thousand five hundred only), which will carry interest at the rate of 7.5 % per annum from the date of petition till realisation (excluding the period 55 days delay caused in filing the appeal). This amount will be distributed equally among the appellants. The third respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment, after deducting the liability of the appellants/claimants towards Balance Court Fee, if any.

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The disbursement of additional compensation to

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MACA No.962/2013 7

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appellants/claimants shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Appellants/claimants shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Parties shall bear their respective costs.

Sd/-

M.R.ANITHA

JUDGE

shg/

Francis v. Ali

Case brief

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Francis v. Ali

Case brief

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