A. T. Ummerkoya and others v. Ashraf T.T. (deleted) and The Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA TUESDAY, THE 16TH DAY OF SEPTEMBER 2014/25TH BHADRA, 1936 MACA.No. 2964 of 2008 (F) -------------------------- AGAINST THE AWARD IN OPMV 458/2004 of PRINCIPAL M.A.C.T.,KOZHIKODE DATED 07-03-2008 APPELLANT(S): ------------- 1. A.T. UMMERKOYA, AGED 57 YEARS, S/O. KUNHAMMED HAJI. 2. RUKKIYABI, AGED 51 YEARS, W/O. UMMERKOYA. 3. FAHIMATHUL SUHARA, AGED 29 YEARS, W/O. LATE ANWAR A.T. (ALL ARE RESIDING AT RUBEENA MANZIL, KALARIKKAL PARAMBA, KUNDUNGAL, P.O.KALLAYI, CALICUT-3. SUPPL. 4. SOFNANU, AGED 5 YEARS (MINOR), D/O. LATE ANWAR, REP. BY MOTHER, FATHIMATHUL SUHARA. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): ---------------------------- 1. ASHRAF T.T., THATTAN THOTTATHIL (DELETED*) HOUSE, P.O. NOCHAD, PERAMBRA KOZHIKODE DIST. 2. THE ORIENTAL INSURANCE CO. LTD., SREENIDHI BUILDING, POST BOX NO. 27, NARAYANA NAGAR VADAKARA - 673 101. (*RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER THE ORDER DATED 27.11.13 IN I.A.NO.3145/2013 IN MACA.NO.2964/2008) R,R2 BY ADV. SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & P.V ASHA, JJ. ----------------------------------------------------M.A.C.A No.2964 of 2008-F** **---------------------------------------------------Dated this the 16[th] day of September, 2014** ## **J U D G M E N T** ## Ramachandran Nair, J. This appeal is filed by the claimants before the Motor Accidents Claims Tribunal, Kozhikode, in O.P.(MV) No.458 of 2004. They are claiming enhancement of the compensation consequent to the death of the breadwinner of their family namely, late Sri Anwar. 2. The accident occurred on 01.02.2004. He was riding a motor cycle bearing Registration No.KL 11/K 5078, which was hit by a Jeep bearing Registration No.KL 10/A 8004. He succumbed to injuries at the Medical College Hospital, Kozhikode. 3. We heard the learned counsel for the appellants Sri V.N.Ramesan Nambisan and the learned counsel for the Insurance Company Sri V.P.K Panicker. 4. The learned counsel Sri Ramesan Nambisan submitted that the Tribunal rejected Ext.A5 salary certificate for unsustainable reasons. According to the learned counsel, the 2 **M.A.C.A No.2964 of 2008-F** deceased was working as a Salesman cum Commission Agent in a lucrative business, viz., dealing of fish under PW1 a fish merchang and PW1 has proved Ext.A5 certificate which shows that the deceased was drawing Rs.6,000/- per month. It is submitted that the said evidence was discarded mainly for the reason that PW1 could not remember the building number assigned by the Panchayat to his institution and due to the fact that he has not confirmed whether there is any licence for doing the business etc. But finally a notional income has been fixed, which is too low. According to the learned counsel, the annual income fixed at Rs.22,000/- for the year 2003 is too low in the circumstances of the case and due to the fact that he was employed in fish vending business, where there is prospects of increase in the earnings in future and which fact was not at all considered by the Tribunal. 5. It is also submitted that the compensation awarded towards pain and suffering, loss of consortium and funeral expenses are also very low. Further it is submitted that the Tribunal went wrong in deducting 10% towards contributory negligence. 6. First we will consider the finding regarding the contributory negligence in para.6 of the judgment. Ext.A1 is the 3 ## **M.A.C.A No.2964 of 2008-F** copy of F.I.R and scene mahazar has also been produced, which is Ext.A3. After observing that the petitioners have not produced the driving licence of the deceased and due to the fact that the final report has also not been produced, the Tribunal took the view that the liability has to be apportioned between the Jeep driver and the deceased. The respondents' liability was restricted. 7. Our attention has been drawn to the scene mahazar and F.I.R. 8. Deceased was travelling from north to south in his motorcycle. On a reference to Ext.A1, it can be seen that the case is that after hitting the motorcycle, the Jeep went forward and hit another motor vehicle. We find from a reference to Ext.A3 scene mahazar also that, even going by the measurements taken after the accident occurred with reference to the place where the vehicles were placed, it could be conclusively held that the deceased was not on the wrong side of the road. There is no contra evidence on behalf of the respondents to prove that the deceased had contributed to the cause of the accident. It is also clear that the driver of the offending vehicle alone was arrayed as accused in a criminal case. In that view of the matter, we find that finding on issue 4 **M.A.C.A No.2964 of 2008-F** No.1 is not correct and there is no evidence to prove that the deceased had contributed to the accident and therefore there is no justification on apportioning the liability. 9. The deceased was only 27 years of age and his wife was only 25 years of age. The multiplier taken is 18 and the learned counsel for the Insurance Company rightly submitted that going by the principles laid down in **Sarla Verma (Smt) & Ors. v. Delhi Transport Corporation & Anr.** [(2009) 6 SCC 121] whereby the Apex court has held that the correct multiplier would be 17 and therefore we adopt the same. Coming to the earnings of the deceased, what is claimed is Rs.6,000/- per mensem in the application for compensation. The occupation is shown as a fish merchant cum commission agent and salesman. His occupation as such stands proved by the evidence of PW1. But Ext.A5 certificate was not accepted by the Tribunal for non production of the licence for doing the business by PW1 and for not mentioning the number of the building of the Panchayat and also for non production of the registers relating to the employees etc. Evidently as far as the business, namely fish vending is concerned, it will fetch a regular income to persons engaged in the business. In view of the prevailing circumstances, we are of the view that it can be considered that it is a flourishing business 5 **M.A.C.A No.2964 of 2008-F** with a regular income. There may be variations in the income but, the true circumstances cannot be discarded at all. Except that the fluctuation in the market may vary the earnings of a person, it cannot be disputed that one will get a regular income. The question is whether Ext.A5 should be accepted in toto as it is vehemently relied upon by the learned counsel for the appellants, whereas the learned counsel for the 2[nd] respondent insurance company Sri Panicker submitted that the evidence is insufficient. 10. We have considered the rival contentions. Of course the fact that the deceased was engaged in business in fish is not at all disproved in evidence. Therefore it will be reasonable for the Court to assess the income and fix the multiplicand accordingly. In a matter like this, where compensation is to be awarded consequent on the death of a person, a likely increase in the earnings in future is also a factor which could be considered by the Court. Even though the learned counsel for the Insurance Company Sri Panicker submitted that when lump sum payment is being claimed by the applicant such a consideration need not be given, we are of the view that the said component cannot be ignored by the Tribunal or by this Court in arriving at just compensation. 6 **M.A.C.A No.2964 of 2008-F** 11. After considering the evidence of PW1 as well as the averments in the application for compensation and also considering the prospects of increase in the earnings in future, we are of the view that Rs.5,000/- can be fixed as reasonable monthly income of the deceased from the business. 12. In that view of the matter, we refix the compensation in the following manner. After taking Rs.5,000/- as the monthly income and after reducing 1/3 towards the personal expenses of the deceased, the yearly earnings, viz., the contribution to the appellants will be Rs.40,000/- and the multiplier being 17, the amount to be awarded towards dependency will be Rs.6,80,000/-. 13. It is seen that the deceased succumbed to injuries in the Medical College Hospital and therefore we fix Rs.10,000/- as the amount towards pain and suffering. Towards loss of consortium, going by the judgment of the Apex Court in **Rajesh v. Rajbir Singh (SC)** [2013(3) KLT 89 (Supreme Court)], the reasonable amount would be Rs.1,00,000/- and we adopt the same. Going by the very same decision, the amount awarded towards funeral expenses by the Tribunal in this case is very low and we enhance the amount to Rs.25,000/- accordingly. What is awarded by the Tribunal towards transportation charges is Rs.1,000/- and we fix the same amount. Accordingly we refix the 7 **M.A.C.A No.2964 of 2008-F** total compensation as shown below: i) Dependency : Rs.6,80,000.00 ii) Pain & suffering : Rs. 10,000.00 iii) Loss of consortium : Rs.1,00,000.00 iv) Funeral expenses : Rs. 25,000.00 v) Transportation : Rs. 1,000.00 ------------------------Total : Rs.8,16,000.00 ========= (Rupees Eight lakhs sixteen thousand only) The insurance company will satisfy the same, after adjusting the amounts already paid under the impugned award. 14. We find from the award of the Tribunal that an amount of Rs.80,000/- was apportioned for the minor supplemental applicant. Thereafter the balance amount has been divided into two equal shares. In the light of the fact that we have fixed the total compensation as Rs.8,16,000/-, an amount of Rs.2,15,000/- will be deposited in favour of the minor and it will be kept as a Fixed Deposit in a Nationalised Bank to be drawn by her on attaining majority. 15. From the remaining amount, an amount of Rs.1,50,000/- will be apportioned in favour of appellants 1 and 2, who are the parents of the deceased and the remaining will be paid to the wife of the deceased, namely the 3[rd] appellant. We 8 **M.A.C.A No.2964 of 2008-F** direct the Insurance Company to issue cheques in favour of the appellants for the balance amount payable, within a period of three months. The appellants are also directed to pay the balance court fee in tune with the total compensation arrived at by this Court. 16. We are of the view that interest awarded at the rate of 7.5% per annum is very low and we fix it as 9% per annum from the date of the petition to the date of payment in accordance with the decision reported in **Kaushnuma Begum v. New India Assurance Co. Ltd.** [(2001) 2 SCC 9]. The appeal is allowed accordingly. No costs. _Sd/-_ _**T.R.RAMACHANDRAN NAIR Judge**_ _Sd/-_ _**P.V.ASHA Judge**_ rtr/ /true copy/ P.S to Judge