Allowed

Badharudheen & Anr. v. Deepu K. Mathew & Ors.

Kerala HC24 Mar 2023MACA/1503/2011

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a low compensation award of Rs.1,50,000 in a motor accident death claim. Holding that a two-year-old child cannot be contributorily negligent, the Court set aside the 25% deduction, remitted the matter for recalculation, and directed the insurer to deposit enhanced compensation of Rs.4,21,000 with interest.

What did the court decide?

Enhanced compensation of Rs.4,21,000 directed to be deposited by the insurer to the appellants with interest at 8% per annum.

Badharudheen & Anr. Vs Deepu K. Mathew & Ors. — Motor Accident Claims | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THEHONOURABLEMRS.JUSTICESOPHYTHOMAS
FRIDAY,THE24THDAYOFMARCH2023/3RDCHAITHRA,1945

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MACANO.1503OF2011

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OP(MV)No.962/2007 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM APPELLANTS/PETITIONERS:

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1BADHARUDHEEN,36YEARS,S/O.SULAIMAN,
AMBALATHHOUSE,KOOTTALAP.O,HILLPADY,THRISSUR
(FATHEROFDECEASED).

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2 SHARIFA @ SHERINA, AGED 30 YEARS, W/O.BADHARUDHEEN,(MOTHER OF DECEASED). -DO-

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BY ADV SRI.SHEJI P.ABRAHAM

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RESPONDENTS/RESPONDENTS:

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1 DEEPU K. MATHEW, AGED 25 YEARS, S/O.MATHEW VARGHESE, KAVUMPADY DESOM, MANNARKKADU, PIN 687 772, PALAKKAD. (DRIVER OF LORRY BEARING REG.NO.TN-23/F-6581) (NO RELIEF SOUGHT AGAINST R1).

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2K.A.ASHAINMAR,AGEANDFATHER'SNAMENOT
KNOWNNO.141,ASADNAGAR,KARUMBAKADI,COIMBATORE,
TAMILNADU,PIN-600017.,(ONWEROFLORRYBEARING
REG.NO.TN-23/F-6581)

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3IFFCO-TOKIOGENERALINSURANCECO.LTD.,
NO.28(OLDNO.195)ISTAND2NDFLOOR,NORTHUSMANROAD,
T.NAGARCHENNAI600017.,POLICYNO.35665447VALID
FROM24.7.2006TO23.7.2007.

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BYADVS.

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SRI.P.JACOBMATHEW
SRI.MATHEWSJACOB,SR.
SMT.SEENAVASUKODANAD

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THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY
HEARDON24.03.2023,THECOURTONTHESAMEDAYDELIVEREDTHE
FOLLOWING:

MACA 1503 of 2011

J U D G M E N T

The claimants in OP(MV) No.962 of 2007 on the file of the Motor Accidents Claims Tribunal, Ottapalam, are the appellants herein, challenging the impugned award on the ground of inadequacy of compensation.

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The appellants filed the above OP(MV) under Section 166 of the Motor Vehicles Act, claiming compensation for the death of their two year old son named Ashique, who was pillion riding in a motorcycle along with his parents. When they reached Kombazha, TN-23/F-6581 lorry driven by the 1^st respondent, in a rash and negligent manner, knocked them down and the children of the appellants/claimants lost their lives in that accident. Though the appellants approached the Tribunal claiming compensation of Rs.3,50,000/-, the Tribunal awarded only Rs.1,80,000/- and after deducting 25% towards contributory negligence, an amount of Rs.1,50,000/- was awarded to the appellants. Challenging the inadequacy of the compensation awarded, claimants are before this Court in this appeal.

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The 1^st respondent was the driver of the offending vehicle, 2^nd respondent was its owner and 3^rd respondent was its Insurer.

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MACA 1503 of 2011

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The death of the child Ashique in the accident and the Policy of the offending vehicle are not in dispute.

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Respondents 1 and 2 did not contest and they were set ex

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parte . The 3^rd respondent-Insurer admitted the Policy. But,

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according to them, the accident occurred due to the negligence of the rider of the motorcycle.

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Before the Tribunal, PW1 was examined and Exts A1 to A19 were marked.

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Now let us see whether any interference is warranted in

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the impugned award as claimed by the appellants.

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Heard learned counsel Sri.Sheji P. Abraham appearing for

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the appellants and learned counsel Sri.P.Jacob Mathew appearing for the 3^rd respondent.

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The deceased was a two year old boy. Relying on the decision in Kurvan Ansari v. Shyam Kishore Murmu [(2021) SCC Online SC 1060], notional annual income of Rs.30,000/- can be fixed and adopting multiplier of 15, loss of dependency can be assessed as Rs.4,50,000/-.

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Towards loss of consortium, the parents are eligible to get

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Rs.44,000/- each including 10% hike for the delay of every three

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MACA 1503 of 2011

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years. So they will get Rs.88,000/- in total.

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Towards loss of estate and funeral expenses, as per the

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decision National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680] , the appellants are eligible to get Rs.16,500/- each including 10% hike for the delay of every three years. So they will get Rs.33,000/-.

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Since the deceased was a child aged only two years, learned Tribunal went wrong in attributing contributory negligence of 25% to deduct 25% of the compensation amount and that finding is liable to be set aside.

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The appellants are entitled to get a total amount of Rs.5,71,000/- (4,50,000+88,000+33,000) without any deductions, on account of alleged contributory negligence. Rs.1,50,000/-

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awarded by the Tribunal is liable to be deducted from the award amount.

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Head of claim	Amount awarded by the Tribunal	Amount awarded in appeal	Difference to be drawn as enhanced compensation
Loss of
dependency	…..	Rs.4,50,000/-	Rs.4,50,000/-

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MACA 1503 of 2011

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Loss of consortium	……	Rs.88,000/-	Rs.88,000/-
Loss of estate	……	Rs.33,000/-	Rs.33,000/-
Total			Rs.5,71,000/-

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Amount awarded by the Tribunal is Rs.1,50,000/-

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Balance eligible as enhanced compensation = Rs. 4,21,000 /- (5,71,000-1,50,000)

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So, the appellants are eligible to get the enhanced compensation of Rs.4,21,000/[(4,50,000 + 88000 + 33000) - 1,50,000].

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The liability of the Insurer to compensate the appellants is not under challenge. So, the 3^rd respondent-Insurer is directed to deposit the enhanced compensation of Rs.4,21,000/- in the Bank account of appellants 1 and 2, in equal share, with interest @ 8% per annum, from the date of petition till the date of deposit (excluding 122 days of delay in filing the appeal), within two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the

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MACA 1503 of 2011

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liabilities, if any, of appellants 1 and 2, towards Tax, balance court

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fee and legal benefit fund.

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The appeal is allowed accordingly. No order as to costs.

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Sd/-

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SOPHY THOMAS JUDGE

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DSV/25.03.2023.

Badharudheen & Anr. v. Deepu K. Mathew & Ors.

Case brief

What is this about?

What did the court decide?

Badharudheen & Anr. v. Deepu K. Mathew & Ors.

Case brief

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