Fathima Saidu Mohammed (through legal heirs) v. Mohammed Rasheed and The Oriental Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE A.M.BABU WEDNESDAY, THE 29TH DAY OF MARCH 2017/8TH CHAITHRA, 1939 MACA.No. 1257 of 2010 ( ) -------------------------OPMV 1239/2006 of M.A.C.T.,KOTTAYAM DATED 29-08-2009 APPELLANT(S): - ------------------ 1. FATHIMA SAIDU MOHAMMED, MADUKOLIPARAMBIL, KMA, JUNCTION,KANJIRAPILLY. (DIED. APPELLANTS 2 & 3 ARE RECORDED AS THE LEGAL HEIRS AS PER JUDGMENT DATED 29.3.2017) 2. M.S.BASHEER, -DO- -DO- 3. M.S.SALIM -DO- -DO- ## BY ADV. SRI.THOMAS K.C.KUNNATHOOR RESPONDENT(S): - -------------- 1. MOHAMMED RASHEED, PAINAPPALLIL, KANJIRAPILLY, NOW RESIDING AT PAINAPPALLIL, MANARCADU, KOTTAYAM. 2. THE ORIENTAL INSURANCE COMPANY LTD, KOTTAYAM. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) BY SRI.V.S.AFSAL KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMACHANDRA MENON & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - M.A.C.A. 1257 of 2010 - - - - - - - - - - - - - - - - Dated : 29[th] March, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## Ramachandra Menon, J. - 1.The factual position in the memo dated 16.3.2015 filed on behalf of the appellant is recorded. - 2.The appellants were claimants before the Tribunal. The grievance projected in this Appeal is two fold. Firstly, as to the quantum of compensation awarded by the Tribunal and secondly, that the Insurer of the vehicle has been wrongly exonerated by the Tribunal. - 3.Heard the learned counsel for the appellants and the learned counsel appearing for the Insurer; besides the learned counsel appearing on behalf of the owner-cum-driver of the Mini lorry involved in the accident. - 4.On 18.5.2006, the deceased was proceeding along **MACA.1257/10** 2 the K.K road and when he reached the place of occurrence, a Mini lorry bearing No.KL 5/C 7441 driven by the 1[st] respondent knocked him down, causing fatal injuries leading to his death, which was sought to be compensated by the legal heirs by filing a claim petition before the Tribunal. 5.The 1[st] respondent filed a written statement pointing out that there was no negligence on his part and that he had valid driving licence and badge, which were valid upto 30.12.2006. The contention of the Insurance Company was that, the 1[st] respondent was not having any valid driving licence and badge and hence negligence was attributed on him. No oral evidence was adduced on either side. The evidence consists of Exts.A1 to A5 marked on the side of the claimants and Exts.B1 and B2 marked on the side of the respondents. The Tribunal, based on the materials on record, particularly the charge sheet, arrived at a finding that the accident was solely because of the negligence on the part **MACA.1257/10** 3 of the driver of the Mini lorry. - 6.The amounts awarded by the Tribunal under different heads are as given below : |Head|Amount awarded bythe Tribunal| |---|---| |Transport to hospital|Rs.1000.00| |Funeral expenses|Rs.3000.00| |Loss of love and affection|Rs.10000.00| |Loss of consortium|Rs.10000.00| |Compensation for loss of dependency|Rs.75000.00| |Total|Rs.99999.00| The compensation awarded was directed to be satisfied with interest at the rate of 7% per annum from the date of filing of the petition, till payment by the 1[st] respondent/owner-cumdriver. - 7.The insurer was exonerated from the liability. The reasoning in paragraph 8 of the Award is that, despite the pleadings raised by the 2[nd] respondent/Insurer that the driver was not having valid and effective driving licene or **MACA.1257/10** 4 badge, it was never produced by the 1[st] respondent or tendered any other evidence and hence no liability could be mulcted upon the Insurer. We find it very difficult to accept the said proposition. When the Insurance Company contended that the 1[st] respondent was not having any valid driving licence at the relevant time, there was a contention on the part of the 1[st] respondent as raised in the written statement that he was having a valid driving licence and the badge which was valid till 30.12.2006. It is also to be noted that, there was no such case for the Police that the vehicle was being driven without any licence/badge. On the other hand, Ext.A2 reveals that the driver was having a valid licence and badge on the relevant date. Since the Tribunal has relied on Ext.A2 charge sheet and such other materials, there was no reason to take a different turn in the case of the driving licence. A copy of the licence has been placed before this court for perusal. In so far as no attempt was made by the Insurer to procure the relevant particulars in relation to **MACA.1257/10** 5 the licence, if at all there was any doubt or dispute, the plea raised by the Insurance Company remains only a 'bald plea' and without any substance. The materials on record support the case of the claimant and that of the 1[st] respondent, the owner-cum-driver of the vehicle. As such, we set aside the finding of the Tribunal in this regard and hold that the liability is to be cleared by the Insurance Company, by virtue of the Policy issued in respect of the vehicle concerned. - 8.Coming to the quantum of compensation payable; the deceased was an octogenarian. Hence, the multiplier adopted by the Tribunal as '5', is sufficient and quite appropriate. The total dependency compensation worked out comes to Rs.75,000 (Rs.15,000/- x 5); which appears to be quite reasonable and does not warrant any interference. - 9.The compensation awarded towards 'funeral expenses', 'Loss of love and affection' and the **MACA.1257/10** **==> picture [7 x 9] intentionally omitted <==** 'Loss of consortium' are only Rs.3,000, Rs.10,000/- and Rs.10,000 respectively which, according to us, is on the lower side. It is to be noted that the accident was in the year 2006. However, the deceased being a person who was fit enough to walk along the road on his own even at that stage, it could also be said that he could have lived for some more years peacefully and hence the compensation awarded by the Tribunal requires to be enhanced. Following the law laid down by the Supreme Court in Rajesh v. Rajbir Singh (2013 (3) KLT 89), as explained by this Court in Valsamma v. Binu Jose (2014 (1) KLT 10), this Court finds it appropriate to award a further sum of Rs.7,000/- towards 'funeral expenses' and a further sum of Rs.40,000/towards 'loss of love and affection' and a further sum of Rs.40,000/- towards 'loss of consortium' as well. Thus, the total balance compensation payable would come to Rs.87,000/-, which shall be satisfied with interest at the rate of 9% per annum from the date of petition filed before the Tribunal, till realization. The ## **MACA.1257/10** 7 due amount shall be deposited by the respondent/Insurance Company along with the amount already awarded by the Tribunal at the earliest, at any rate, within 'one month' from the date of receipt of a copy of this judgment. On effecting the deposit as above, it will be open for the appellant to have the amount withdrawn. Appeal stands allowed to the said extent. No cost. Sd/- ## **P.R.RAMACHANDRA MENON Judge** ## **Sd/-** ## **A.M.BABU Judge** Mrcs/29.3 //True copy// P.S to Judge