Ayisabi and Others v United India Insurance Company Ltd. and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` TUESDAY, THE 4[TH] DAY OF JULY 2023 / 13TH ASHADHA, 1945 MACA NO. 515 OF 2008 ``` ``` AGAINST THE AWARD DATED 13.03.2007 IN O.P(M.V) NO.1725/1999 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1P.AYISABI, W/O.(LATE) ABDURAHIMAN @ KOYA, AGED 66 YEARS, PULLANGADATH HOUSE, CHERUVANNUR VILLAGE, POST NALLALAM, KOZHIKODE. 2P.BASHEER, S/O.(LATE) ABDURAHIMAN @ KOYA, AGED 44 YEARS, PULLANGADATH HOUSE, CHERUVANNUR VILLAGE, POST NALLALAM,, KOZHIKODE. 3P.HAJARA D/O.(LATE) ABDURAHIMAN @ KOYA, AGED 42 YEARS, PULLANGADATH HOUSE, CHERUVANNUR VILLAGE, POST NALLALAM, KOZHIKODE. 4P.YOOSAF, S/O.LATE ABDURAHIMAN @ KOYA, AGED 39 YEARS, PULLANGADATH HOUSE, CHERUVANNUR VILLAGE, POST NALLALAM, KOZHIKODE. (REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, P.BASHEER, THE PETITIONER NO.2 HEREIN.) 5P.SAHEERA, D/O.LATE ABDURAHIMAN @ KOYA, AGED 33 YEARS, PULLANGADATH HOUSE, CHERUVANNUR VILLAGE, POST NALLALAM, KOZHIKODE. BY ADVS.SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1U.USMAN, S/O.NOT KNOWN, URUNIAN PRAMBIL HOUSE, PAZHAMALLUR POST, MALAPPURAM DISTRICT. 2THE UNITED INDIA INSURANCE CO. LTD. BRANCH OFFI NADAKKAVE, UPHILL, MALAPPURAM. 3R.RAJESH, S/O.K.B.RAMANAN, SWAPNA HOUSE, MANNATH ROAD, PERUNNA POST, CHANGANASSERY, KOTTAYAM DISTRICT. ``` ``` R2 BY ADV SRI.P.K.MANOJKUMAR,SC ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD`** ``` ON 04.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.515 of 2008 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 04[th] day of July, 2023** The appeal on hand is directed against an award passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short ‘the Tribunal’) on 13.03.2007 in O.P(M.V) No.1725/1999. 2. 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 Original Petition. 3. The appellants are the petitioners before the Tribunal who are none other than the legal representatives of one Mr.Abdurahiman @ Koya who sustained fatal injuries in a motor accident occurred at about 9.40 p.m on 04.04.1999 and lateron succumbed to the injuries on the same day. He was ``` M.A.C.A.No.515 of 2008 ``` ``` 3 ``` returning home after attending prayers in a Mosque at Areekad and while walking through the side of the road, was knocked down by a Bus bearing Registration No.KL-10F-9243. The offending Bus was overtaking another Bus and in that process it hit Mr.Abdurahiman. He was immediately rushed to Medical College Hospital, Kozhikode and while undergoing treatment there, he succumbed to the fatal injuries. His wife, two sons and two daughters as legal representatives of him preferred the Original Petition seeking for a total sum of `2,00,000/- as compensation. 4. The registered owner and the insurer were arrayed in the Original Petition as respondents 1 and 2. Lateron the driver of the offending Bus was also impleaded in the Original Petition as additional 3[rd] respondent. All respondents were served with ``` M.A.C.A.No.515 of 2008 ``` ``` 4 ``` notice. 1[st] and additional 3[rd] respondent did not turn up to contest the Original Petition. Respondent No.2 filed written statement raising contentions mainly that the driver of the offending Bus was not holding a valid and effective driving license at the relevant time of the motor accident and he stood chargesheeted by the police for that violation under Section 3(1) of the Motor Vehicles Act, 1988 (for short ‘the MV Act’) and that Mr.Abdurahiman had his own contribution towards the motor accident by crossing the road negligently. Compensation claimed under various heads is also disputed for its exorbitance and want of basis. Nevertheless, the issuance of a policy for the offending vehicle covering the date of motor accident was admitted. The 2[nd] respondent had also availed permission of the Tribunal to contest the claim petition by availing all statutory defences. ``` M.A.C.A.No.515 of 2008 ``` ``` 5 ``` 5. Before the Tribunal, petitioners marked Exts.A1 to A3 in evidence. No evidence was let in by the 2[nd] respondent. On appreciation of the documentary evidence adduced by the petitioners as above, the Tribunal arrived at a finding that the motor accident in question was occurred due to the rash and negligent driving of the Bus bearing Registration No.KL-10F-9243 by its driver who was arrayed in the Original Petition as additional 3[rd] respondent. On a detailed evaluation of the medical documents on record, the Tribunal found that Mr.Abdurahiman died on account of the fatal injuries received by him in the motor accident and the petitioners are his legal representatives. The Tribunal arrived at `60,000/- as the total compensation payable to the petitioners and directed the 2[nd] respondent to pay the same after ``` M.A.C.A.No.515 of 2008 ``` ``` 6 ``` deducting the interim compensation stood awarded by it under Section 140 of the MV Act, with interest at the rate of 6% per annum from 21.08.1999, the date of filing of the Original Petition till the date of realisation alongwith proportionate cost. It stood established before the Tribunal that the additional 3[rd] respondent was driving the Bus at the relevant time without a driving licence and therefore, the 2[nd] respondent was permitted to have the compensation amount recovered from the 1[st] and additional 3[rd] respondent after depositing the same in favour of the petitioners. 6. Contention mainly raised against the quantum of compensation stood awarded by the Tribunal was that it is not just and reasonable. According to him, the Tribunal fixed the annual income as `15,000/- on a notional basis for arriving ``` M.A.C.A.No.515 of 2008 ``` ``` 7 ``` at the compensation payable to the petitioners. According to him, the Tribunal ought to have based a higher sum as the annual income of the deceased for calculation of the compensation. It was urged that compensation was not awarded towards loss of consortium and funeral expenses as per the direction issued by the Constitution Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and others** [2017 (4) KLT 662 (SC)]. According to him, compensation towards loss of estate was declined in toto. The learned counsel canvassed for grant of compensation under the conventional heads in tune with the fixation of those in **Pranay Sethi** supra. The learned counsel also canvassed for modification and enhancement of the annual income and calculation of compensation for loss of dependency on its basis. ``` M.A.C.A.No.515 of 2008 ``` ``` 8 ``` 7. It is pertinent to note from the impugned award that interim compensation has been awarded by the Tribunal in favour of the petitioners under Section 140 MV Act and it has also been received by them. 8. The Tribunal has taken `15,000/- as the annual income of the deceased. True that the deceased was aged 70 years and the 1[st] petitioner, his wife was aged 57 years at the relevant time of the motor accident. Petitioners 2 to 5 are the children who survived him and they claimed to be aged 35 years, 33 years, 30 years and 24 years respectively. A claim was also raised by them in the Original Petition that they are dependents of the deceased. 9. Contention was raised by the learned counsel for the 2[nd] respondent that petitioners other ``` M.A.C.A.No.515 of 2008 ``` ``` 9 ``` than the 1[st] petitioner cannot be treated as dependents of the deceased, being majors aged above 30 years at the relevant time. The contention of the learned counsel in the context was, 50% is appropriate to be deducted from the monthly income while calculating the compensation payable. The claim of the petitioners in the Original Petition that all of them are dependents of the deceased and therefore 1/4[th] is also to be deducted from the monthly income in consideration of the expenditure liable to be met with by the victim, had he been alive. 10. `15,000/- considered by the Tribunal as the annual income of the deceased appears to this Court unjust and unreasonable. True that the motor accident was occurred in the year 1999 and the deceased was aged 70 years. But, it is revealed ``` M.A.C.A.No.515 of 2008 ``` ``` 10 ``` from the records of the case that the motor accident was occurred while Mr.Abdurahiman was returning from a Mosque by foot after attending the prayers there. Therefore it stood established that even at the age of 70 years he was healthy and capable to move on his own. Therefore, `2,000/- is fixed as his monthly income and thus `24,000/- (`2,000/- x 12) is considered as his annual income. The multiplier adopted by the Tribunal was ‘5’ and it being correct is maintained. Compensation for dependency when calculated afresh with the above modified factors, `90,000/- (`2,000/- x 5 x 12 x 3/4) is arrived at. `50,000/- stood awarded by the Tribunal when adjusted against, the petitioner will get `40,000/(`90,000/- - `50,000/-) as additional compensation. 11. As per the direction issued by the Constitution Bench of the Apex Court in **Pranay** ``` M.A.C.A.No.515 of 2008 ``` ``` 11 ``` **Sethi** supra, petitioners are entitled to get `44,000/- per head, as compensation towards loss of consortium provided they come within the category of spouse, children and parents with reference to their relation with the deceased and `16,500/- each as compensation towards loss of estate and funeral expenses. As already stated, the Tribunal failed to award any sum as compensation towards loss of estate. Having due regard to the entitlement of the petitioners, compensation under funeral expenses is modified to `16,500/-. `2,000/stood awarded by the Tribunal as compensation towards funeral expenses when adjusted against, petitioners will get `14,500/- as additional compensation under that head. Petitioners will also get `16,500/- as compensation towards loss of estate. All the petitioners being entitled to get ``` M.A.C.A.No.515 of 2008 ``` ``` 12 ``` `44,000/- each as compensation towards loss of consortium, `2,20,000/- (`44,000/- x 5) is arrived at as the total compensation. `2,000/- stood awarded by the Tribunal when adjusted against, petitioners will get `2,18,000/- (`2,20,000/- - `2,000/-) as additional compensation. It is found that `5,000/- was awarded by the Tribunal as compensation towards pain and suffering. Petitioners being disentitled to that, is deducted from the total compensation arrived at as payable additionally. 12. In the above manner of assessment afresh, petitioners will get `2,84,000/- (Rupees Two lakhs eighty four thousand only) [(`40,000/- + `2,18,000/- + `16,500/- + `14,500/-) - `5,000/-] as total additional compensation and it will carry interest at the rate of 7.5% per annum from the ``` M.A.C.A.No.515 of 2008 ``` ``` 13 ``` date of filing of the Original Petition till the date of realisation. The 2[nd] respondent was already exonerated by this Court from paying interest for 163 days of delay occurred in filing the appeal on hand, vide order passed on 28.02.2023 in C.M.Application No.01/2008 and therefore, the 2[nd] respondent is held, not liable to pay interest for that period. 13. The 2[nd] respondent shall pay the additional compensation arrived at by this Court with interest accrued on it, within a period of two months from the date on which a certified copy of this judgment is received, in favour of the petitioners in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. 14. Since the total compensation awarded in favour of the petitioners exceeds the total claim ``` M.A.C.A.No.515 of 2008 ``` ``` 14 ``` raised by the petitioners, the petitioners are liable to pay additional court fee in proportion to the compensation awarded in excess. The Tribunal shall see that the additional court fee is realised from the petitioners . 15. In view of the factum established before the Tribunal that the additional 3[rd] respondent was driving the offending bus without authorisation to drive the same, the 2[nd] respondent is permitted to have recovery of the additional compensation alongwith interest and costs after depositing it in favour of the petitioner, from 1[st] and additional 3[rd] respondent. M.A.C.A stands allowed accordingly. **MARY JOSEPH** **JUDGE** NAB