Abdurahiman and others v. Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 19TH DAY OF FEBRUARY 2016/30TH MAGHA, 1937** **MACA.No. 1518 of 2015 () ------------------------AWARD IN OP(MV) 1984/2006 OF M.A.C.T., KOZHIKODE DATED 28.03.2009** ## **APPELLANT(S)/PETITIONERS :** **-------------------------** **1. ABDURAHIMAN, S/O. AMMED, AGED 67 NAMBYARATH MEETHAL HOUSE, ARIKKULAM POST, KOYILANDY VIA, KOZHIKODE-673 322.** **2. BASHEER, S/O. ABDURAHIMAN, AGED 38, NAMBYARATH MEETHAL HOUSE, ARIKKULAM POST, KOYILANDY VIA, KOZHIKODE-673 322.** **3. RASHEED, S/O. ABDURAHIMAN, AGED 34, NAMBYARATH MEETHAL HOUSE, ARIKKULAM POST, KOYILANDY VIA, KOZHIKODE-673 322.** **4. SHAMEEJA, W/O. JALEEL, AGED 30, NAMBYARATH MEETHAL HOUSE, ARIKKULAM POST,** **KOYILANDY VIA, KOZHIKODE-673 322.** **BY ADV. SMT.K.V.RESHMI** **RESPONDENT(S)/3RD RESPONDENT :** **------------------------------** **THE ORIENTAL INSURANCE CO. LTD. DIVISIONAL OFFICE, SEEMA BUILDING, G.H.ROAD, KOZHIKODE-673 001.** **BY ADV. SRI.R.AJITH KUMAR (128/84) SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BKA/-** ## **P.R. RAMACHANDRA MENON, & ANIL K. NARENDRAN, JJ.** -------------------------------------------------- M.A.C.A. No. 1518 of 2015 -------------------------------------------------Dated this the 19[th] day of February, 2016 ## **J U D G M E N T** ## Anil K. Narendran, J. The appeal is for enhancement of the compensation awarded by the Tribunal in respect of the death of one Nafeesa, pursuant to a road traffic accident occurred on 09.09.2006, on a petition filed by her legal heirs under Section 166 of the MV Act. 2. The factual position revealed from the proceedings is that the deceased was proceeding along the road and while so, when she reached the place of occurrence, she was knocked down by an autorikshaw, bearing Reg.No.KL-18-1987, causing serious injuries leading to death, which led to the claim petition filed by her legal heirs before the Tribunal seeking compensation. Respondents 1 to 3 are the owner, driver and insurer of the vehicle respectively. M.A.C.A. No. 1518 of 2015 ..2.. 3. Respondents 1 and 2 have filed written statement, disputing the liability to pay compensation. The nature of contention raised by the respondent Insurance Company was mainly on quantum and negligence. 4. The evidence adduced before the Tribunal consists of Exts.A1 to A3 from the part of the appellants. No oral or documentary evidence was adduced by the respondents. 5. Based on the relevant materials on record, the Tribunal arrived at a finding that the respondents are jointly and severally liable to compensate the appellants and proceeded to fix the compensation accordingly. 6. Coming to the quantum of compensation payable, the case projected by the appellants/claimants before the Tribunal was that the deceased was a worker in Kudumbasree and was earning 1,500/- per month.₹ Referring to the serious consequences resulted because of the death, a total sum of 3,00,000/- was claimed₹ accordingly. But, the Tribunal observed that the M.A.C.A. No. 1518 of 2015 ..3.. occupation/income was not properly proved and accordingly, only 18,000/- was fixed as notional annual₹ income of the deceased for working out compensation under different heads. Awarding amounts under different heads, total compensation was fixed as 1,70,000/-, which₹ was directed to be satisfied with interest @ 7% per annum from the date of petition till satisfaction. The liability, accordingly, was mulcted upon the shoulders of the respondent insurer. 7. Inadequacy of the compensation awarded by the Tribunal is the subject matter of challenge in this appeal. 8. Heard the learned counsel for the appellants and the learned counsel for the respondent insurer. 9. The amounts awarded by the Tribunal under different heads as given in paragraph 8 are as follows; Dependency ₹1,56,000/Pain and suffering ₹5,000/Consortium ₹5,000/Transportation ₹1,500/Funeral expenses ₹2,500/---------------Total ₹1,70,000/======= M.A.C.A. No. 1518 of 2015 ..4.. 10. At the time of the accident, the deceased was aged 45 years and she was survived by her husband aged 58 years and children aged 29, 25 and 21 years respectively, who are the appellants in this appeal. The appellants claimed that at the time of the accident, the deceased was a worker in Kudumbasree and earning a monthly income of 1,500/-. Considering the facts that₹ the accident occurred in the year 2006 and at the time of the accident, the deceased was aged 45 years, who was earning her livelihood as a worker in the Kudumbasree, we deem it appropriate to refix her notional income as ₹3,000/-. After deducting 1/3rd of the notional monthly income towards personal and living expenses of the deceased and applying the multiplier of '13', dependency compensation is reworked as 3,12,000/- (3000 x 12 x 13₹ x 2/3). After deducting the amount of ₹1,56,000/awarded by the Tribunal towards dependency, the balance compensation comes to **₹1,56,000/-** and we award the same. 11. Towards pain and suffering, the Tribunal M.A.C.A. No. 1518 of 2015 ..5.. awarded only a sum of 5,000/-. Considering the fact that₹ the deceased succumbed to the injuries after undergoing excruciating pain, we deem it appropriate to award a sum of 15,000/- towards pain and suffering, entitling the₹ appellants to get an additional compensation of **₹10,000/-** under this head. 12. Towards loss of consortium, the Tribunal awarded only a meagre sum of 5,000/-. In the case on₹ hand, the deceased was aged 45 years at the time of the accident and the 1[st] appellant, who was her husband, was 58 years. Therefore, following the principles laid down by the Apex Court in **Rajesh** v. **Rajbir Singh** [2013 (3) KLT 89 SC] and explained by the Division Bench of this Court in **Valsamma** v. **Biju Jose** [2014 (1) KLT 10], we deem it appropriate to award a compensation of 50,000/-₹ towards loss of consortium. Thus, the appellants will be entitled to get an additional compensation of **₹45,000/-** towards loss of consortium. 13. Towards loss of love and affection, no amount is awarded by the Tribunal. Following the principles laid M.A.C.A. No. 1518 of 2015 ..6.. down in **Rajesh** 's case (cited supra), and explained in **Valsamma** 's case (cited supra), we deem it appropriate to grant a sum of **₹50,000/-** under this head. 14. Towards funeral expenses, the Tribunal awarded only a meagre sum of 2,500/-. The accident is₹ of the year 2006. Following the principles laid down in **Rajesh** 's case (cited supra), we deem it appropriate to refix the compensation under this head as 20,000/-.₹ Thus, the appellants will be entitled to get an additional sum of **₹17,500/-** . 15. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation, which requires no enhancement in this appeal. 16. Accordingly, the appellants will be entitled to get an additional total compensation of **₹2,78,500/-** (Rupees two lakh seventy eight thousand and five hundred only) in this appeal together with interest at the rate of 9% per annum from the date of petition. Since the policy is admitted, we direct the respondent M.A.C.A. No. 1518 of 2015 **==> picture [20 x 9] intentionally omitted <==** insurance company to satisfy the additional compensation awarded in this appeal together with interest @ 9% per annum from the date of petition till deposit, except for the period of delay of 2153 days in filing the appeal, which was condoned by virtue of the common order passed on 10.02.2016. Deposit shall be effected before the Tribunal within one month from the date of receipt of copy of this judgment. The appeal is disposed of accordingly. Sd/- **P.R. RAMACHANDRA MENON JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** bka/- //True copy// PA to Judge