Ajeera Beevi and Others v. Kuruvilla Mammen and Others and National Insurance Company Limited

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 ``` ``` MACA NO. 2970 OF 2009 ``` ``` AGAINST THE AWARD DATED 31.01.2008 IN O.P(M.V) NO.324/2002 OF MOTOR ACCIDENTS ``` ## **`CLAIMS TRIBUNAL, ERNAKULAM`** ## **`APPELLANTS/PETITIONERS:`** ``` 1AJEERA BEEVI, AGED 34 YEARS, W/O LATE MOHAMMED ASLAM. 2MOHAMMED SHIFAS, AGED 13 YEARS S/O.LATE MOHAMMED ASLAM, (MINOR) 3MOHOMMED FAYAZ, AGED 10 YEARS S/O.LATE MOHAMMED ASLAM, (MINOR) 4FATHIMA BEEVI, AGED 67 YEARS, W/O.LATE UMBAYI, 5SAID MOHAMMED, AGED 67 YEARS, S/O.MOHAMMED. 6SAINABA, AGED 65 YEARS, W/O.SAID- MOHAMMED, (MINORS 2 & 3 ARE REPRESENTED BY THEIR MOTHER AJEERA BEEVI, 1ST APPELLANT), ALL ARE RESIDING AT 21/162,KANNADIPARAMBIL HOUSE, K.M.P.ROAD, THANGAL NAGAR, PALLURUTHY,COCHIN-6. BY ADVS. SRI.R.SUDHISSH SMT.M.MANJU ``` ## **`RESPONDENTS / RESPONDENTS:`** ``` 1KURUVILLA MAMMEN, 28/2280, TAGORE NAGAR, KADAVANTHRA, COCHIN - 20. 2K.X.JOSEPH, S/O.XAVIER KANJIRATHINKAL HOUSE, EAST OF DON BOSCO, THATTAYIPANAMKAYI, PARAMBU, VADUTHALA P.O., COCHIN - 23. 3NATIONAL INSURANCE COMPANY LIMITED, BY ITS REGIONAL MANAGER, REGIONAL OFFICE,, MUTHOOT TOWERS, M.G.ROAD, COCHIN – 35. BY ADV SRI.LAL GEORGE ``` ``` Adv. SEBASTIAN VARGHESE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.2970 OF 2009 ``` ``` 2 ``` ## JUDGMENT ## Dated this the 07[th] day of March, 2023. The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Ernakulam (for short, ‘the Tribunal’) on 31.01.2008 in O.P.(M.V) No.324 of 2002. The appellants are petitioners before the Tribunal, who are the legal representatives of one Mr.Mohammed Aslam, who died in a motor accident occurred at 12.30 p.m on 03.11.2001 at Willingdon Island. Mr.Mohammed Aslam was pillion riding in a Scooter bearing Registration No.KL-7/AD 3654 through G.V Iyer road and a Trailer Lorry bearing Registration No.KL-7/AD 4122 hit the Scooter due to the rash and negligent driving by its driver at Sixth Cross Road Junction. The rider as well as the pillion rider were thrown on the road. They were transported to Port Trust Hospital, Willingdon Island and ``` MACA NO.2970 OF 2009 ``` ``` 3 ``` after giving first aid, was shifted to Medical Trust Hospital, Ernakulam. Sri. Mohammed Aslam was again shifted to General Hospital, Ernakulam but on the way, he succumbed to the injuries. Alleging that the motor accident was caused due to the rash and negligent driving of the Lorry by its driver and raising a claim for `10,00,000/- as compensation, the above Original Petition was filed. 2. A common award was passed in the above Original Petition and O.P.(M.V) No.202/2002 filed by the rider of the scooter, who was also injured in the motor accident. Challenge is raised only against the portion of the award whereby compensation stood awarded to the petitioners in O.P.(M.V) No.324/2002. 3. The owner, the driver and the insurer of the Trailer Lorry were arrayed as respondents 1 to 3 in the Original Petition. Though notice was served from the Tribunal on all respondents, respondent Nos.1 and 2 did ``` MACA NO.2970 OF 2009 ``` ``` 4 ``` not turn up to contest the Original Petition. Written statement was filed by the 3[rd] respondent admitting issuance of a policy having coverage for the Trailer Lorry involved, as on date of accident. It was contended that the motor accident was occurred due to the negligence of the rider of the Scooter and not due to negligence of the 2[nd] respondent. Claims of the petitioners regarding the age, occupation and the monthly income of the deceased and the quantum of compensation were disputed. 4. Evidence was adduced in common in the Original Petition mentioned above and in O.P (M.V) No.202/2002. The employer of deceased Mohammed Aslam was examined as PW1 and Exts.A1 to A13 were marked. 3[rd] respondent also obtained permission of the Tribunal to contest the claim petition by raising all statutory defences. The Tribunal appreciated the entire evidence and found on its basis that the driver of the Trailer Lorry has caused the ``` MACA NO.2970 OF 2009 ``` ``` 5 ``` motor accident by driving in a rash and negligent manner. The Tribunal also got convinced from the evidence on record that Mr.Mohammed Aslam succumbed to the injuries sustained, while being transported to the Hospital. The Tribunal also found that the petitioners as legal representatives of the victim are entitled to get compensation. A sum of `3,65,000/- was arrived at as the compensation payable and the 3[rd] respondent was directed to deposit the same with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 5. According to Sri.Sudhish.R, the learned counsel, the Tribunal failed to award just and reasonable compensation for which the petitioners are entitled to under the head loss of estate, funeral expenses and loss of consortium. According to him, the compensation payable to the petitioners under the above heads was fixed by the ``` MACA NO.2970 OF 2009 ``` ``` 6 ``` Constitution Bench of the Apex Court in National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)] and therefore petitioners are entitled for that. According to him, the employer of the deceased was examined as PW1 and through him, Ext.A13 was also marked in evidence. Accordingly, he canvassed for a reconsideration of the above evidence and substitution of `4,000/- in the place of `2,500/- fixed as the monthly income of the deceased. 6. The learned counsel has also canvassed for addition of 40% to the monthly income fixed in consideration of loss of future prospects taking into account of the untimely death of the deceased at an age below 40 years and working on fixed salary. ¼[th] of the monthly income was also urged to be deducted in consideration of personal expenditure liable to be met with, had he been alive. ``` MACA NO.2970 OF 2009 ``` ``` 7 ``` 7. As compensation towards loss of love and affection and pain and suffering `10,000/- each was awarded by the Tribunal, which according to the learned counsel, the petitioners are disentitled to. The learned counsel thus seeks for exclusion of those sums from the additional compensation payable. 8. The motor accident in question was occurred in the year 2001. Petitioner claimed to be a Store Keeper in a Private Firm and his salary was certified in Ext.A13 certificate as `4,000/-. His employer was examined as PW1. The evidence of PW1 being unconvincing and the veracity of Ext.A13 being doubtful, the Tribunal fixed only `2,500/- as the monthly income of the deceased. `2,500/fixed by the Tribunal undoubtedly is a lower sum and therefore, refixed as `3,000/-. The Tribunal failed to add 40% to the monthly income in consideration of loss of future prospects and to deduct any amount towards ``` MACA NO.2970 OF 2009 ``` ``` 8 ``` personal expenditure of the deceased. The Tribunal is erred in doing so. Age of the deceased being 38 years, 15 is adopted as the multiplier. 1/4[th] is also deducted in consideration of personal expenditure. 9. When compensation for dependency is re-assessed on the basis of the modified factors as above, `5,67,000/- (`4,200/- x 12 x 15 x ¾) is arrived at. `3,20,000/- stood awarded by the Tribunal when adjusted against the sum now arrived at, petitioners will get `2,47,000/- as additional compensation. 10. As compensation towards funeral expenses and loss of estate, `5,000/- and `10,000/- respectively were awarded by the Tribunal. As already discussed with, petitioners are entitled to get `16,500/- each under the above heads. Therefore, `11,500/- and `6,500/- are payable as additional compensation under those heads. The parents in law of the deceased were also impleaded as ``` MACA NO.2970 OF 2009 ``` ``` 9 ``` petitioners 5 and 6. Evidence is not forthcoming to show that they are also staying alongwith the victim at the relevant time of his death due to the motor accident. Other petitioners being the wife, two minor children and mother of the deceased are entitled to get `44,000/- each as compensation towards loss of consortium and therefore, `1,76,000/- (`44,000/- x 4) is payable in total. `10,000/stood already awarded by the Tribunal as compensation under that head has to be adjusted against and therefore, the petitioners will get `1,66,000/- as total additional compensation under that head. 11. In the above manner of re-assessment, `4,31,000/- is arrived at. `10,000/- each stood awarded by the Tribunal towards loss of love and affection and pain and suffering when deducted from the above sum arrived at as payable, the petitioners will get a total sum of `4,11,000/(Rupees Four Lakh Eleven Thousand only) [(`2,47,000/- + ``` MACA NO.2970 OF 2009 ``` ``` 10 ``` `11,500/- + `6,500/- + `1,66,000/-) - (`10,000/- + `10,000/-) as additional compensation. The amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation excluding 373 days, being the period of delay occurred in filing the appeal. The 3[rd] respondent shall pay the sum awarded now as additional compensation with interest fixed, within a period of two months from the date on which a certified copy of this judgment is received as per the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. Sd/MARY JOSEPH JUDGE ``` JJ ```