Ali and Nafeesa v. P. C. Ahammed, The New India Assurance Co. Ltd., and Kadeeja

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 6[TH] DAY OF JULY 2022 / 15TH ASHADHA, 1944 MACA NO. 1364 OF 2009** **AGAINST THE AWARD OP(MV) No.3828/2002 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANTS/PETITIONERS IN O.P.(M.V):** 1 ALI, S/O.ABDURAHIMAN KUTTY, AGED 56 YEARS. 2 NAFEESA W/O. ALI, AGED 51 YEARS. (ALL ARE RESIDING AT KUNNUMMAL HOUSE, KALANTHIRI MANIPURAM, P.O, PATTINIKARA, KOZHIKODE.) BY ADV. SMT.LATHA PRABHAKARAN ## **RESPONDENTS/RESPONDENTS & 3RD PETITIONER IN O.P.(MV):** 1 P.C.AHAMMED, URULIKUNNUMMAL HOUSE, P.O. VAVAD, VIA KODUVALLY, KOZHIKODE. 2 THE NEW INDIA ASSURANCE CO. LTD. TRIPURI BUILDING, EAST NADAKKAVU, KOZHIKODE. 3 KADEEJA, W/O. LATE ABDURAHIMAN, AGED 27 YEARS, RESIDING AT KUNNUMMAL HOUSE,, KALANTIRI MANIPURAM, P.O.PATTINIKARA, KOZHIKODE. BY ADV. SRI.P.K.BABU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.1364 of 2009** 2 ## **JUDGMENT** The original petitioners 1 and 2 in O.P.(M.V) No.3828/2002 on the file of Motor Accidents Claims Tribunal, Kozhikode, are the appellants herein and in this appeal they impugn award dated 05.07.2008 in the above case. The respondents 1 and 2 are the owner-cum-driver and insurer respectively. The 3[rd] respondent is the 3[rd] petitioner before the Tribunal. **==> picture [397 x 10] intentionally omitted <==** appellants as well as the Insurance Company. 3. Brief facts of the case: On 13.11.2002, one Abdurahiman met with an accident, while he was riding on his motorcycle bearing registration No.KL-11/H-3338 from Thamarasseri to Kunkam, when he was hit by a lorry bearing registration No.KL-11/A-3166, driven by the 1[st] respondent in a rash and negligent manner. As a result, Abdurahiman sustained serious injuries. Although he was taken ## **M.A.C.A No.1364 of 2009** **==> picture [7 x 9] intentionally omitted <==** to Medical College Hospital, Kozhikode, soon after the accident, he succumbed to the injuries. Appellants are the parents of deceased Abdurahiman and the 3[rd] respondent herein is the wife of Abdurahiman. They filed application under Section 166 of the Motor Vehicles Act claiming compensation of Rs.10,00,000/-. 4. The 2[nd] respondent, Insurance Company filed written statement disputing the negligence as well as quantum of compensation. 5. The Tribunal acting on documentary evidence marked as Exts.A1 and A4 after finding 50% negligence on the part of the 1[st] respondent and 50% negligence on the part of Abdurahiman (the deceased), assessed Rs.2,05,000/- as compensation and granted Rs.1,53,750/- with 7% interest. But no apportionment seen effected in between the original petitioners. 6. The learned counsel for the appellants would urge that the finding of 50% contributory negligence on the part of Abdurahiman as against ## **M.A.C.A No.1364 of 2009** **==> picture [7 x 9] intentionally omitted <==** Ext.A2 police charge, attributing negligence on the part of the 1[st] respondent, the driver of the lorry cannot be sustained in the eye of law since no convincing evidence available in this matter to find contributory negligence against the deceased. 7. On perusal of Ext.A2 charge, the police alleged negligence on the part of the 1[st] respondent. The Tribunal found contributory negligence disbelieving the police charge for unsustainable reasons. Since the police charge is against the 1[st] respondent, I am of the view that the Tribunal wrongly found contributory negligence on the part of the deceased also, without sufficient evidence to rebut the police charge. Therefore, the said finding stands set aside. 8. Coming to the quantum of compensation, the appellants claimed Rs.6,000/- as the monthly income of the deceased as a ticket checker in private service bus. But the Tribunal fixed ## **M.A.C.A No.1364 of 2009** 5 Rs.16,500/- as yearly income and calculated 'loss of dependency' based on the same. 9. Admittedly, this is an accident of the year 2002. Therefore, applying the ratio in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ : **(2011) 13 SCC 236,** I am of the view that Rs.3,500/- is to be fixed as the monthly income and I fix the same as such. Following the ratio in _**National Insurance Company Ltd. v. Pranay Sethi**_ **: (2017) 16 SCC 680,** 40% addition is liable to be given in this case since the deceased was aged below 40 years at the time of accident. 10. In this case, though certified copy of post-mortem certificate is produced to prove that Abdurahiman died in consequence of the accidental injuries, the same not seen marked by the Tribunal and no finding in that regard also could be gathered from that record. Therefore, postmortem certificate got marked as Ext.A6 in this ## **M.A.C.A No.1364 of 2009** **==> picture [7 x 9] intentionally omitted <==** appeal, since it is stated in the award that documents up to Ext.A5 got marked. 11. Since the age of the deceased is 24 years in the post-mortem certificate and no serious challenge raised as regards the age, the Tribunal accepted the same and the multiplier is fixed at '18' following the ratio in _**Sarla Verma v. Delhi**_ _**Transport Corporation**_ **: (2009) 6 SCC 121** . Therefore, the 'loss of dependency' is recalculated as follows: **==> picture [344 x 13] intentionally omitted <==** **==> picture [398 x 14] intentionally omitted <==** respondent are entitled to get compensation under conventional heads. It is noticed that the Tribunal granted Rs.2,000/- under the head 'funeral expenses'. Therefore, **Rs.15,000/-** is granted under the head 'funeral expenses', following the ratio in _**Pranay Sethi's**_ case (supra) _**.**_ No amount granted under the head 'loss of estate' by the Tribunal. Therefore, ## **M.A.C.A No.1364 of 2009** ## 7 **Rs.15,000/-** is granted under the head 'loss of estate'. No amount granted by the Tribunal under the head 'loss of consortium', though the appellants 1, 2 and 3[rd] respondent are together entitled to get Rs.1,20,000/- @ Rs.40,000/- each, following the ratio in _**Pranay Sethi's**_ case (supra). Therefore, **Rs.1,20,000/-** is granted under the head 'loss of consortium'. 13. It is noticed further that the Tribunal granted Rs.5,000/- under the head 'pain and sufferings' and Rs.10,000/- under the head 'loss of love and affection'. Following the ratio in _**United India Insurance Co. Ltd v. Satinder Kaur**_ **@** ## **Satwinder Kaur and others : 2020 (3) KHC 760,** Rs.15,000/- granted under the heads 'pain and sufferings' and 'love and affection', is not liable to be granted. 14. Since the contributory negligence found by the Tribunal stands set aside, the entire amount is liable to be deposited by the 2[nd] 8 ## **M.A.C.A No.1364 of 2009** respondent, the Insurance Company. 15. In the result, this appeal is allowed. It is ordered that the appellants and the 3[rd] respondent together are entitled to get Rs.8,55,600/- as compensation, out of which Rs.1,53,750/- was granted by the Tribunal and the balance amount of **Rs.7,01,850/-** (Rupees Seven Lakh One Thousand Eight Hundred and Fifty Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the 2[nd ] respondent, Insurance Company from the date of petition till the date of deposit or realisation, excluding interest for the period of 109 days in filing this appeal as ordered in the order dated 16.12.2021 in C.M.Application No.1560/2009. The insurer is directed to deposit the entire amount along with interest, in the name of appellants and 3[rd] respondent in equal proportion, within two months from today. On deposit, the ## **M.A.C.A No.1364 of 2009** **==> picture [7 x 9] intentionally omitted <==** appellants and 3[rd] respondent are entitled to release the same. Sd/- **A.BADHARUDEEN, JUDGE.** ww