Arattuthodika Moideen and Others v. The National Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944 MACA NO. 2130 OF 2010 ``` ``` AGAINST THE AWARD DATED 07.09.2005 IN O.P(M.V) NO.501/2001 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI ``` ## **`APPELLANT/PETITIONERS:`** ``` 1ARATTUTHODIKA MOIDEEN, S/O.POCKAR, VALAKULAM, KOZHICHANA (PO), TIRUR TALUK, MALAPPURAM DISTRICT. 2ARATTUTHODIKA MOHAMMEDKUTTY S/O.MOIDEEN, -DO- -DO- 3ARATTUTHODIKA PATHUMMU D/O.MOIDEEN, -DO- -DO- 4ARATTUTHODIKA HAMZA S/O.MOIDEEN -DO- -DO- 5ARATTUTHODIKA ABDULKAREEM, S/O.MOIDEEN -DO- -DO- 6ARATTUTHODIKA BASHEER, S/O.MOIDEEN -DO- -DO- (APPELLANTS 2 TO 6 WERE IMPLEADED AS PER ORDER DATED 25/08/2004 IN I.A.NO.2217/2004 AS SUPPL. PETITIONER AS THEY ARE THE LEGAL HEIRS OF THE, DECEASED SECOND PETITIONER BEFORE THE TRIBUNAL BY ADV SRI.BABU S. NAIR ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` THE NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, PANDIKKAD ROAD,, MANJERI REPRESENTED THROUGH ITS BRANCH MANAGER, PIN 676 121. ``` ``` BY ADV SRI.LAL GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ``` ``` ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A No.2130 of 2010 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 26[th] day of October, 2022** This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Manjeri (for short ‘the Tribunal’) on 07.09.2005 in O.P.(M.V.) No.501 of 2001. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status in the above Original Petition. 2. The appellants are the legal heirs of one Mr.Ibrahim who died in a motor accident occurred at 6.50 am on 28.02.1999. He was travelling in an autorickshaw from Kozhichena to Valakkulam and he sustained serious injuries when it capsized at Valakkulam. He was rushed to Medical College Hospital, Kozhikode and there he succumbed to the injuries, being fatal. Alleging that the accident was occurred due to the rash and negligent driving of the autorickshaw by its driver and claiming a sum of Rs.3,00,000/- as compensation the above Original Petition was filed. The ``` M.A.C.A No.2130 of 2010 ``` ``` 3 ``` driver, owner and insurer of the autorickshaw were arrayed as respondents 1 to 3 in the Original Petition. 3. 1[st] and 2[nd] respondents entered appearance and filed joint written statement admitting their status respectively as driver and owner of the autorickshaw involved in the accident. The averment that the 1[st] respondent was rash and negligent in driving the autorickshaw at the relevant time and thereby caused the accident was denied. 4. The 3[rd] respondent also filed written statement admitting insurance coverage of the autorickshaw at the relevant time of the accident. It was contended that the 1[st] respondent has driven the autorickshaw without a valid driving licence and by permitting him to drive the same, conditions of policy was violated by the 2[nd] respondent. 5. No oral evidence was adduced by either parties in the Original Petition. Exts.A1 to A6 series and Exts.B1 and B2 respectively were marked on the side of the petitioners and respondents. On appreciation of the above evidence, the Tribunal found the driver of the vehicle who was arrayed as 1[st] respondent responsible for the accident by his rash and ``` M.A.C.A No.2130 of 2010 ``` ``` 4 ``` negligent driving. The Tribunal also found that the petitioners being the legal heirs and dependents of the deceased are entitled to get compensation. Rs.66,700/- was also arrived at as the compensation payable to the petitioners and the 3[rd] respondent insurer was directed to deposit the same within one month from the date of the award. Interest at the rate of 6% per annum from the date of filing of the Original Petition till the date of realisation and a cost of Rs.1,500/were also ordered. Aggrieved by the quantum of compensation awarded, the petitioners before the Tribunal have approached this Court in the appeal on hand. 6. According to Smt.Smitha Babu, the learned counsel for the petitioners though it was claimed in the Original Petition seeking compensation that the deceased was aged 18 years and was working as a coolie earning Rs.5,000/- per month, the Tribunal has fixed Rs.15,000/- as his annual income and assessed the compensation payable on it’s basis. According to her, by the above assessment the petitioners have been denied with a just and reasonable compensation. She canvassed for reassessment of the compensation payable ``` M.A.C.A No.2130 of 2010 ``` ``` 5 ``` under the head loss of dependency by fixing a reasonable amount as the monthly income. The learned counsel has also pointed out that under the heads funeral expenses and loss of estate the Tribunal had awarded Rs.2,000/- and Rs.2,500/respectively against their entitlement for Rs.16,500/- each as per **National Insurance Company Limited. v. Pranay Sethi** [2017 (4) KLT 662 (SC)]. The learned counsel has also pointed out that the deceased was survived by his parents but the mother died during the pendency of the Original Petition and therefore, the Tribunal failed to award any sum as compensation under the head loss of consortium. The learned counsel canvassed for a modification of the compensation stands awarded under various heads, in interference. 7. This Court noticed that the accident in the case on hand was occurred in the year 1999. When a fixation of monthly income proportionate to the fixation in **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236] is adopted, Rs.2,000/- is found reasonable and that is taken into consideration. Mr.Ibrahim was a bachelor aged 18 years ``` M.A.C.A No.2130 of 2010 ``` ``` 6 ``` at the relevant time of his death. He being aged 18 years, 40% is liable to be added to the monthly income fixed, in consideration of loss of future prospects. Being a bachelor, half of the monthly income is liable to be deducted towards personal expenditure which would have been incurred by him had he been alive. Rs.1,400/- is arrived at in the aforesaid calculation. The Tribunal had taken the multiplier incorrectly as 5 whereas the multiplier appropriate in view of **Sarla Verma & Ors. v. Delhi Transport Corporation & Anr** . [2010 (2) KLT 802 (SC)] is 18. Therefore this Court is inclined to adopt 18 as the multiplier. When compensation for loss of dependency is calculated on the basis of Rs.1,400/- as the monthly income and 18 as the multiplier, Rs.3,02,400/- is arrived at. Rs.50,000/- stands awarded by the Tribunal when adjusted, Rs.2,52,400/- will be payable as additional compensation under the head loss of dependency. Since the deceased was survived by his father and mother at the time of his death, Rs.40,000/- and Rs.44,000/- respectively are payable as compensation under the head loss of consortium to the parents. Petitioners are entitled to get Rs.16,500/- each ``` M.A.C.A No.2130 of 2010 ``` ``` 7 ``` under the heads loss of estate and funeral expenses whereas the Tribunal had awarded only Rs.2,000/- and Rs.2,500/respectively under those heads. Therefore, Rs.14,500/- and Rs.14,000/- respectively are payable as additional compensation under the above heads. 8. The Tribunal has also awarded Rs.10,000/- as compensation under the head pain and suffering for which the petitioners have no entitlement to in view of **United India Insurance Company Limited vs. Satinder Kaur Alias Satwinder Kaur and Others** [(2021) 11 SCC 780]. Therefore the said amount needs to be adjusted in the total compensation arrived at now. 9. Thus a sum of Rs.3,54,900/- (Rupees Three lakh Fifty four thousand and Nine hundred only) is payable in total as additional compensation. The 3[rd] respondent being the insurer is liable to deposit the said sum with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation excluding the period of delay of 90 days in filing the appeal, which stands exempted by an order passed by this Court on 28.02.2022 in C.M.A. ``` M.A.C.A No.2130 of 2010 ``` ``` 8 ``` No.02/2010. The 3[rd] respondent shall deposit the above sum with interest fixed on it within two months from the date of receipt of a certified copy of this judgment. 10. The amount originally stands awarded by the Tribunal and the additional compensation now arrived at by this Court in total being excess of the sum claimed by the petitioners they are bound to pay the court fee, for that sum. Steps shall be taken to realise the court fee on the excess sum. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NAB