Bhagyeswari and others v Abdul Manaf and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944 MACA NO. 1836 OF 2010 ``` ``` AGAINST THE AWARD DATED 26.04.2010 IN O.P(M.V) NO.551/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1BHAGYESWARI, W/O.LATE HARIDAS CHANGANATHU HOUSE, VELLANGALLUR. 2RIJEESH, S/O. LATE HARIDAS, CHANGANATHU HOUSE, VELLANGALLUR. 3RIJITHA MINOR AGED 17 YEARS D/O. LATE HARIDAS, CHANGANATHU HOUSE, VELLANGALLUR., REP. BY HER MOTHER AND GUARDIAN, BHAGYESWARI, W/O. LATE HARIDAS, CHANGANATHU HOUSE,, VELLANGALLUR. *4KARTHIYANI, W/O.MANIKUTTY, M/O.LATE HARIDAS, CHANGANATHU HOUSE, VELLANGALLUR (DIED) *(DEATH OF 4TH APPELLANT IS RECORDED, AS PER ORDER DATED 07.02.2023 IN MEMO DATED 07.02.2023 IN MACA 1836/2010.) BY ADV SRI.V.BINOY RAM ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1ABDUL MANAF, S/O. V I UMMER KASIM, VELUTHEDATH PARAMBIL HOUSE, P.O.EDATHIRINJI, THRISSUR DISTRICT, PIN 680 122. 2SUNEESH, S/O. VENUGOPALA CHETTIAR, MUTHIRAPARAMBIL HOUSE, CHELOOR DESOM, MANAVALASSERY VILLAGE, THRISSUR DISTRICT, PIN 680 121. 3THE NATIONAL INSURANCE CO.LTD. MAIN ROAD, IRINJALAKUDA, PIN 680 121.. BY ADVS.SMT.DEEPA GEORGE SRI.M.A.GEORGE SRI.K.RAVI PARIYARATH SRI.G.SREEKUMAR CHELUR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1836 of 2010 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 07[th ] day of February, 2023** This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Irinjalakuda (for short ‘the Tribunal’) on 26.04.2010 in O.P(M.V) No.551/2006. 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 petitioners are legal heirs of one Mr.Haridas who succumbed to the injuries sustained in a motor accident occurred at Vellangallur on 12.09.2005. He was walking through the margin of the road and was knocked down by a Motorcycle bearing Registration No.KL-8X 7539. The rider of the Motorcycle by his rash and negligent riding has caused the accident and Mr.Haridas succumbed to the injuries following the accident. He was survived by his wife and two children and mother. Rs.6,00,000/- was claimed as compensation. The owner, rider and insurer of the Motorcycle were arrayed as ``` 3 ``` ## **`M.A.C.A.No.1836 of 2010`** respondents 1 to 3 in the original Petition seeking compensation. 4. 1[st] respondent was served with notice. Though he entered appearance, failed to file any written statement. 2[nd] respondent filed written statement denying all the averments of the petitioner in the Original Petition. The rider of the Motorcycle was contended as not rash and negligent and responsible for the accident. According to the 2[nd] respondent, the accident was caused due to the careless crossing of the road by Mr.Haridas. 5. The 3[rd] respondent had filed written statement admitting insurance coverage for the Motorcycle at the relevant time of accident. It was contended that the 2[nd] respondent who was riding the motorcycle was not holding a valid driving licence to drive it at the relevant time of the accident. 6. Before the Tribunal evidence was adduced by both sides. Exts.A1 to A4 were marked by the petitioners and Exts.B1 and B2, by the 3[rd] respondent. Permission was also obtained by the 3[rd] respondent to contest the claim petition, raising all defences statutorily available. On appreciation of ``` M.A.C.A.No.1836 of 2010 ``` ``` 4 ``` the entire evidence, the Tribunal found entitlement for the petitioners to get compensation from the respondents and arrived at Rs.2,97,000/- as the compensation payable. The 3[rd] respondent/insurer was directed to deposit the sum arrived at with interest at the rate of 7% per annum from 03.06.2006, the date of filing of the Original Petition till the date of realisation. It being established that the rider of the Motorcycle was not holding a valid driving licence to drive it, the 3[rd] respondent was permitted to get the compensation recovered after depositing it in favour of the petitioners, from the owner of the Motorcycle, who was the 2[nd] respondent in the Original Petition. 7. According to Sri.Binoy Ram.V, the learned counsel for the petitioners the Tribunal had fixed Rs.2,000/- as the monthly income on a notional basis. According to him, the petitioners have raised a claim that Mr.Haridas was earning Rs.5,000/- monthly from his job as a head load worker. The Tribunal fixed Rs.2,000/- as the monthly income notionally and therefore, is unjustified. The learned counsel canvassed for a re-fixation of monthly income on the basis of Ramachandrappa ``` M.A.C.A.No.1836 of 2010 ``` ``` 5 ``` v Manager, Royal Sundaram Alliance Insurance Company Limited [ (2011) 13 SCC 236]. The learned counsel has also pointed out that under the conventional heads of loss of consortium, loss of estate and funeral expenses also the petitioners were denied with compensation in accordance with their entitlement as per National Insurance Company Limited v. Pranay Sethi [2017 (4) KLT 662 (SC)]. The learned counsel canvassed for a re-fixation of compensation under various heads. 8. The learned counsel for the 1[st] and 2[rd] respondents failed to submit any arguments in the appeal on hand. 9. This Court is noticed that the Tribunal has fixed Rs.2,000/- as the monthly income on a notional basis. As per the claim of the petitioners Mr.Haridas was a head load worker earning Rs.5,000/- monthly. In Ramachandrappa supra the Apex Court had fixed Rs.4,500/- as the monthly income of a coolie worker who had met with a motor accident in the year 2004. Rs.4,500/- being the monthly income claimed by the petitioners, it is fixed for the purpose of arriving at the compensation payable to the petitioners. ``` M.A.C.A.No.1836 of 2010 ``` ``` 6 ``` 10. The deceased being aged 37 years, the learned counsel canvassed for an addition of 40% to the monthly income fixed in consideration of loss of future prospects. Only when it is established by evidence that the deceased is self employed or employed permanently addition can be made to the monthly income in consideration of loss of future prospects. In the case on hand the petitioners failed to adduce evidence on the nature of the employment of the deceased and therefore, the argument advanced is discarded being untenable. 11. The Tribunal has adopted 16 as the multiplier. The correct multiplier for a person of the age 37 years is 15 and that is adopted. The deceased being survived by four members, 1/4[th ] is liable to be deducted in consideration of the personal expenditure of the deceased. When compensation for loss of dependency is calculated on the basis of the above factors, Rs.6,75,000/- is arrived at as compensation payable. Rs.2,56,000/- stands awarded by the Tribunal when adjusted against, the petitioners will get Rs.4,19,000/- as additional compensation. ``` M.A.C.A.No.1836 of 2010 ``` ``` 7 ``` 12. Under the head loss of consortium, each of the four surviving members are entitled to get Rs.44,000/-. But, it is submitted by the learned counsel for the appellants that the 4[th] appellant died during the pendency of the appeal. Therefore this Court is inclined to maintain Rs.15,000/- stands awarded by the Tribunal under the head loss of consortium. Other three appellants are entitled to get Rs.44,000/- each and when calculated in the above manner, Rs.1,32,000/- is arrived at as compensation payable towards loss of consortium. For Rs.7,000/and Rs.15,000/- (22,000/- in total) awarded by the Tribunal towards pain and suffering and loss of love and affection, the petitioners are not entitled to, and therefore, it needs to be deducted from the total additional compensation now arrived at as payable for loss of consortium (Rs.1,32,000/- Rs.22,000/-). Therefore, Rs.1,10,000/- will be the additional compensation payable under the head loss of consortium. Under the head funeral expenses, the petitioners are entitled to get Rs.16,500/-. Rs.3,000/- stands awarded when adjusted against, the petitioners will get Rs.13,500/- as additional ``` M.A.C.A.No.1836 of 2010 ``` ``` 8 ``` compensation. Towards compensation for loss of estate, the Tribunal failed to award any sum and therefore Rs.16,500/- is awarded. 13. When calculated in the above manner, the petitioners will get Rs.5,59,000/- as additional compensation. The said 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. The 3[rd] respondent shall deposit the additional compensation with interest and the original compensation stands awarded by the impugned award with interest fixed on it (if not already paid) within in a period of two months from the date of receipt of a certified copy of this judgment. The appeal being filed, delayed by 26 days, the 3[rd] respondent is exonerated from paying interest for the period. 14. The contention raised by the 3[rd] respondent that the the 2[nd] respondent was not holding a valid driving licence being established before the Tribunal, the 3[rd] respondent was permitted by the Tribunal to recover the compensation after depositing in favour of the petitioners. Therefore, 3[rd] respondent after depositing the additional sum now awarded ``` 9 ``` ## **`M.A.C.A.No.1836 of 2010`** with interest fixed on it, is also entitled to recover it, from the 1[st] respondent. 15. Since the total compensation awarded being excess of the claim, in the Original Petition, the petitioners shall pay the Court Fee due on the excess amount. The Tribunal shall take necessary steps to realise the additional Court Fee payable while allowing disbursement of the compensation in favour of the petitioners. MACA stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB