Ayissu A.K. and others v. United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945** ## **MACA NO. 77 OF 2016** **AGAINST THE ORDER/JUDGMENT OPMV 84/2011 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL VADAKARA** ## **APPELLANT/PETITIONERS:** 1 AYISSU A.K. AGED 52 YEARS W/O.MUHAMMED(LATE)R/A.RUBSA HOUSE, KADALOOR P O, KOYILANDY TALUK, KOZHIKODE DISTRICT 2 RASEENA AGED 27 YEARS W/O.ABDUL SHUKKOOR(DECEASED)R/A.RUBSA HOUSE, KADALOOR P O, KOYILANDY TALUK, KOZHIKODE DISTRICT 3 NAJA FATHIMAMINOR D/O.ABDUL SHUKKOOR(DECEASED)REPRESENTED BY 2ND APPELLANT RASEENA,R/A.RUBSA HOUSE, KADALOOR P O, KOYILANDY TALUK, KOZHIKODE DISTRICT BY ADV SRI.V.N.RAMESAN NAMBISAN ## **RESPONDENT/RESPONDENT NO 3:** UNITED INDIA INSURANCE CO.LTD. ASHIQUE TOWERS, NARANGAPURAM, THALASSERY, KANNUR, REP BY ITS BRANCH MANAGER, PIN 670101 BY ADVS. K.SHERIN MOHAN AGINOV MATHAPPAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 M.A.C.A No.77 of 2016 ## **JUDGMENT** The appellants are the petitioners in O.P.(M.V) No.84/2011 on the files of the Motor Accidents Claims Tribunal, Vatakara. The said claim petition was submitted by them seeking compensation for the death of one Abdul Shukkoor due to the injuries sustained in a motor accident that occurred on 12.10.2010. 2. According to claimants, the accident occurred when the motorcycle ridden by the deceased was hit by a stage carriage bearing registration No. KL 58 B-2547, driven by the 2[nd] respondent in the claim petition, owned by the 1[st] respondent in the claim petition and was insured with the 3[rd] respondent in the claim petition, the respondent herein. The deceased was aged 30, at the time of the accident, and he was working as a salesman with a monthly income of Rs.7,500/-. The 1[st] appellant is the mother, 2[nd] appellant is the wife, and the 3[rd] appellant is the daughter of the deceased. The claim petition was submitted seeking a total compensation of Rs.10,00,000/-. 3. The respondent herein alone contested the matter by filing a written statement wherein they admitted the coverage of 3 ## M.A.C.A No.77 of 2016 policy in respect of the vehicle but disputed the liability on various grounds. The negligence as well as the quantum of compensation, were also seriously disputed by them. 4. The evidence in this case consists of Exts. A1 to A11 from the side of the appellants, and Ext.B1 was marked from the side of the respondents. After examining the materials placed on record, the Tribunal came to the finding that the accident occurred due to the sole negligence on the part of the driver of the stage carriage and being the insurer of the vehicle, the respondent herein was held liable to pay the compensation. The quantum of compensation was fixed as Rs.7,25,296/- and the said amount was directed to be deposited by the respondent herein with the interest of 7.5% per annum from the date of petition till realisation. This appeal is submitted by the appellants being dissatisfied with the quantum of compensation. 5. Heard, Sri. V.N Ramesan Nambisan, the learned counsel appearing for the appellants and Smt. K Sherin Mohan, the learned counsel appearing for the respondent/Insurance company. 6. The learned counsel for the appellants challenges the quantum of compensation awarded under various heads as, 4 ## M.A.C.A No.77 of 2016 according to him, the same was inadequate. On the other hand, the learned counsel for the respondent would point out that, on several conventional heads, the amounts awarded are on the higher side, and the same requires reconsideration. 7. When it comes to the compensation under various heads, the first aspect to be noticed is the amount awarded under the head of loss of dependency. For the purpose of computing the same, the Tribunal took the monthly income of the deceased as Rs.4,000/-. According to the learned counsel for the appellants, the monthly income so fixed is grossly inadequate. It was pointed out that, he was working as a salesman, and to substantiate the same, Ext.A8 salary certificate issued by the employer was produced and marked. While considering the aforesaid question, the crucial aspect to be noticed is that as per the method of computation evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236] and **Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd.** [2014 (2) SCC 735], the monthly income of an ordinary employee, in the absence of any 5 ## M.A.C.A No.77 of 2016 evidence can be fixed as Rs.4,500/- in respect of an accident that occurred in the year 2004. For determining monthly income for the subsequent years, Rs.500/- per year can be added. While adopting the said method, which appears to be very reasonable and practical, the monthly income in this case can be fixed as Rs.7,500/-, which is also the monthly income claimed by the appellants. Therefore, the said amount is fixed for the said purpose. While reconsidering the monthly income with 40% addition towards future prospects, the amount would come to Rs.14,28,000/- [(7,500+40%) x12x17x2/3]. The amount already awarded under the said head is Rs.5,44,000/- and thus the additional amount would come to Rs.8,84,000/-. 8. When moving on to the other heads, it can be seen that no amount is granted towards damage to clothing, even though an amount of Rs.3,000/- was claimed. In the facts and circumstances of the case, I award an amount of Rs.2,000/- under the said head. 9. Similarly, toward loss of consortium, the amount awarded by the Tribunal is only 50,000/- whereas going by the principles laid down in **National Insurance Company Ltd. v.** 6 ## M.A.C.A No.77 of 2016 **Pranay Sethi** [2017 (4) KLT 662 (SC)] and **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur** [(2021) 11 SCC 780], all the appellants are entitled to compensation under this head at the rate of Rs.40,000/- each thereby making it as Rs.1,20,000/-. Therefore, an additional compensation of Rs.70,000/- is to be awarded under this head, and it is ordered accordingly. 10. The learned counsel for the respondent/insurance company would point out at this juncture that an amount of Rs.30,000/- is awarded under the head of loss of love and affection, which was not warranted. The said contention has to be accepted in the light of the principles laid down in **Sathinder Kaur’s case (supra),** wherein it was held that, when compensation is awarded for loss of consortium, a separate amount need not be granted for loss of love and affection. Therefore, the said amount of Rs.30,000/- is deducted. 11. Similarly, an amount of Rs.35,000/- is granted for pain and suffering, which is also on the higher side as per the settled position of law. However, an amount of Rs.10,000/- is granted 7 M.A.C.A No.77 of 2016 under this head as notional compensation. Thereby, there is an excess of Rs.25,000/- under this head 12. Similarly, the amount awarded under the head of loss of estate is Rs.35,000/-. When the principles laid down in **Pranay Sethi's** case (supra) are applied, the amount should be only Rs.15,000/-. Thus, there is an excess of Rs.20,000/- under this head. Therefore, while reassessing the compensation, in the light of the above modifications, the additional compensation receivable by the appellants is fixed as Rs.8,81,000/- [ (8,84,000+2,000+70,000) – (30,000+25,000+20,000) ]. In the light of the aforesaid findings and observations, this appeal is allowed, the award dated 23.10.2013 in O.P.(M.V) No. 84/2011 passed by the Motor Accidents Claims Tribunal, Vatakara is hereby modified by granting an additional compensation of Rs.8,81,000/- (Rupees eight lakhs eighty one thousand only) to the appellants and the respondent herein is directed to deposit the said amount along with interest at the rate of Rs.8% per annum from the date of petition till realization and proportionate cost. It is further clarified that, as the appeal was filed with a petition to condone the delay of 689 days, the respondent shall be at liberty 8 M.A.C.A No.77 of 2016 to exclude the said period while computing the interest on the additional compensation. Sd/- **ZIYAD RAHMAN A.A JUDGE** rpk