Abdul Vahid S/O Abdul Rahuman and Others v. The Manager, New India Assurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH FRIDAY, THE 30TH DAY OF SEPTEMBER 2016/8TH ASWINA, 1938 MACA.No. 1786 of 2016 () ------------------------AGAINST THE AWARD IN OPMV 1190/2006 of I ADDL.MACT, KOLLAM DATED 13-01-2011 APPELLANT(S)//PETITIONERS: ------------------------- 1. ABDUL VAHID S/O. ABDUL RAHUMAN, AGED 64 YEARS, SHEEBA MANZIL, EDACHEPPALLY, ERAVIPURAM, KOLLAM 2. SHEEJA AGED 40 YEARS, D/O. ABIDA BEEVI, SHEEBA MANZIL, EDACHEPPALLY, ERAVIPURAM, KOLLAM 3. SHEEBA AGED 38 YEARS, D/O. ABIDA BEEVI, SHEEBA MANZIL, EDACHEPPALLY, ERAVIPURAM, KOLLAM BY ADVS.SRI.PRATHEESH.P SMT.RENY ANTO RESPONDENT(S)//3RD RESPONDENT: ------------------------------ THE MANAGER, NEW INDIA ASSURANCE COMPANY LTD. NEW INDIA ASSURANCE CO.LTD, 741/A, OPPOSITE NEW MUNICIPAL BUS STAND, THRIPUNITHURA, ERNAKULAM. BY ADV. SMT.P.LISSY JOSE. BY ADV. SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.1786 OF 2016 ==========================** Dated this the 30[th] day of September, 2016 ## **JUDGMENT** _Ravikumar, J._ This appeal is preferred by the claimants in O.P.(MV). No.1190 of 2006 on the files of the Additional Motor Accidents Claims Tribunal-I, Kollam on feeling aggrieved by and dissatisfied with the quantum of compensation granted thereunder. They filed the said claim petition under section 166 of the Motor Vehicles Act seeking compensation for the death of one Abida Beevi who was the wife of the first appellant and the mother of appellants 2 and 3. She died in a motor vehicle accident occurred on 24.8.2006 while travelling as a pillion rider on a motor cycle ridden by the first appellant. It was knocked down by a car bearing Reg.No.KL-07/AN 6737, driven by **M.A.C.A.1786/2016** 2 the second respondent. Consequently, Abida Beevi sustained injuries and later, she succumbed to the injuries. 2.Before the Tribunal, no oral evidence was adduced by both sides and on the side of the appellants, Exts.A1 to A12 were got marked. No documentary evidence was also adduced by the respondents. The Tribunal, on consideration of the evidence on record and rival contentions, passed the impugned award whereunder a total compensation of `3,72,000/- was granted along with interest @ 7.5% per annum from the date of the petition till realisation. It is dissatisfied with the quantum of compensation and seeking for its enhancement that the captioned appeal has been preferred. 3.We have heard Sri.P.Pratheesh, the learned counsel appearing for the appellants and Smt.P.Lissy Jose, the learned counsel appearing for the insurance company. Obviously, there is no dispute regarding the accident, cause of the accident as negligence from the part of the **M.A.C.A.1786/2016** 3 second respondent who drove the offending vehicle at the time of the accident and also the insurance coverage of the offending vehicle at the time of the accident. In such circumstances, the only question to be considered in this appeal is whether or not the appellants are entitled to get enhanced compensation. 4.The learned counsel for the appellants submitted that the Tribunal ignored the averments in the claim petition that the deceased was a cashew worker besides being housewife and was having an income of `4,500/- and notionally fixed the monthly income meagrely at `3,000/-. It is the erroneous fixation of the monthly income that virtually deprived the appellants just compensation, it is submitted. It is further contended that the Tribunal granted only meagre amounts under the heads 'funeral expenses', 'loss of love and affection' and 'loss of consortium', in total disregard to the settled position of law on the question of grant of compensation under such heads. **M.A.C.A.1786/2016** 4 5.Per contra, the learned counsel for the respondent-insurance company submitted that the Tribunal cannot be found fault with, in notionally fixing the monthly income of the deceased, for calculation purpose, at `3,000/- in the light of the decision of the Hon'ble Apex Court in **Lata Wadhwa v. State of Bihar [AIR 2001 SC 3218].** Following the decision in **Lata Wadhwa** 's case, this Court in **Krishnadas v. Henry Joseph [2011 (4) KLT 716]** also fixed the monthly of the housewife as `3,000/-. Though the appellants have taken up the contention that the deceased was a cashew worker and was earning `4,500/-, they failed to establish the said contention regarding occupation and income. In the said circumstances, the Tribunal treated the deceased only as a housewife and fixed the monthly income following the aforesaid decisions. Evidently, the accident involved in **Krishnadas'** s case occurred on 24.8.2002 and the one involved in **Lata Wadhwa** 's case occurred earlier than it. The accident in this case occurred on 24.8.2006. In such circumstances, we are of the view that it is only proper to fix the **M.A.C.A.1786/2016** 5 monthly income of the deceased for calculation purpose as `4,000/- . It is fixed accordingly. There is no dispute regarding the fixation of multiplier by the Tribunal as it was correctly fixed with reference to the age of the deceased as 13. Taking into account the number of dependents, ⅓ of the income was deducted towards personal expenses of the deceased which she would have incurred had she been alive. Following the same formula but with the re-fixed monthly income, the appellants would be entitled to get an amount of `1,04,000/additionally (4000x12x13x⅔-312000). It is granted. Considering the adequacy of the compensation granted by the Tribunal under the head funeral expenses and loss of consortium, it is only appropriate to refer to the decision of the Hon'ble Apex court in **Rajesh and others v. Rajbir Singh and others [(2013) 9 SCC 54].** In the said decision, it was held that in the absence of proof for higher expenses, a minimum of `25,000/- has to be granted towards funeral expenses. The Tribunal granted only `5,000/- and in such circumstances, we are inclined to grant `20,000/- more towards funeral expenses. It is **M.A.C.A.1786/2016** 6 granted. In the light of the said decision, towards loss of consortium, in a claim for compensation for death filed under section 166 of the M.V.Act, the surviving spouse is entitled to get a minimum of `1,00,000/-. The Tribunal granted only `10,000/-. In such circumstances, we are inclined to grant `90,000/- more to the first appellant under the head loss of consortium. Towards 'pain and suffering', the Tribunal granted an amount of `10,000/-. We are inclined to grant `10,000/- more under the said head considering the nature of the injuries and the duration of the period she had to suffer before succumbing to such injuries. Towards loss of love and affection, the Tribunal granted only an amount of `10,000/-. Appellants 2 and 3 are the daughters of the deceased. They were not minors at the time of the accident. In such circumstances, we are inclined only to grant `10,000/- additionally under that head. Towards damage to clothing, the Tribunal granted only an amount of `500/-. The nature of the injuries would reveal that the dresses worn by the deceased must have been damaged in the accident. In such **M.A.C.A.1786/2016** 7 circumstances, we are inclined to grant `500/- more under the said head. In the light of the discussions as above, the appellants are entitled to get an additional compensation of `2,34,500/-. It is awarded. The additional compensation will carry 8% interest from the date of the petition till realisation. The insurance company is directed to deposit the said amount within two months from the date of receipt of a copy of this judgment. It is made clear that out of the said amount, the first appellant alone will be entitled to get `90,000/granted under the head loss of consortium and appellants 2 and 3 only are entitled to get `10,000/- granted as additional compensation under the head loss of love and affection. The balance amount shall be shared among the appellants in the ratio 2:1:1. There will be no order as to costs. **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** ## **spc/** # **M.A.C.A.1786/2016** 8 **M.A.C.A.1786/2016** 9 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.1786/2016** 10