FOUSIYA, SABITH, AYISHA, ABDUL VAHAB v SEBY CHAKKIATH, MANIKANDAN, UNITED INDIA INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 12TH DAY OF AUGUST 2016/21ST SRAVANA, 1938** **MACA.No. 1501 of 2015 () -------------------------** **AGAINST THE AWARD IN OPMV 5/2010 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD DATED 03-09-2013** **APPELLANT(S)/PETITIONERS :** **-------------------------** **1. FOUSIYA,AGED 26 YEARS** - **W/O. LATE ABDUL SAMMAD, SKV HOUSE, KATTAYAM STREET, PUDUNAGARAM POST, CHITTUR TALUK, PALAKKAD DISTRICT.** **2. SABITH,AGED 7 YEARS** **S/O.LATE ABDUL SAMMAD, SKV HOUSE, KATTAYAM STREET, PUDUNAGARAM POST, CHITTUR TALUK, PALAKKAD DISTRICT.** **(THE SECOND APPELLANT BEING A MINOR IS REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN, THE MOTHER, THE FIRST APPELLANT).** **3. AYISHA, AGED 58 YEARS** - **W/O.ABDUL VAHAB, SKV HOUSE, KATTAYAM STREET, PUDUNAGARAM POST, CHITTUR TALUK, PALAKKAD DISTRICT.** **4. ABDUL VAHAB, AGED 71 YEARS** - **S/O. KANIRAVUTHER, SKV HOUSE, KATTAYAM STREET, PUDUNAGARAM POST, CHITTUR TALUK, PALAKKAD DISTRICT.** **BY ADVS.SRI.BINOY VASUDEVAN SMT.P.G.BABITHA** ## **RESPONDENT(S)/RESPONDENTS :** ## **---------------------------** **1. SEBY CHAKKIATH** **AGE AND FATHER'S NAME NOT KNOWN, CHAKKIATH HOUSE, ELAVOOR, ANKAMALY, ERNAKULAM-683 102** **2. MANIKANDAN** **S/O. RAMAN, AGED 30 YEARS,KATIKULAM, ATHIMANI, VANDITHAVALAM, CHITTUR POST- 678 101** **3. UNITED INDIA INSURANCE CO. LTD.** **K.G.TOWERS, 1ST FLOOR, THRISSUR ROAD, ANGAMALY P.O., ERNAKULAM-683 102** **R3 BY ADV. SRI.M.A.GEORGE R2 BY ADV. SRI.SYAM J SAM** **R3 BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## P.N.RAVINDRAN, J. & P.V.ASHA, J. ------------------------------- M.A.C.A.NO.1501 OF 2015 ------------------------------Dated this the 12[th] day of August, 2016. ## JUDGMENT ## P.V.ASHA, J. This appeal is filed by the legal heirs of deceased Abdul Sammad. They are the claimants in OP(MV) No.5/2010 before the Motor Accidents Claims Tribunal, Palakkad. The Tribunal awarded a total compensation of Rs.8,94,000/- (Rupees eight lakhs ninety four thousand only) with 9% interest per annum, as against the claim for a sum of Rs.11,00,000/-. The challenge is against the said award on the ground that the compensation awarded is only meager. The relevant facts are as follows: 2. A motor vehicle accident occurred on 20.6.2009 at about 7.00.a.m involving a motor cycle bearing registration No.TN-37/M5557 and a tanker lorry bearing registration No.KL-07/AD 2926. In this accident Abdul Sammad who was 2 M.A.C.A.NO.1501 OF 2015 riding the motor cycle sustained serious injuries to his head, chest abdomen and pelvis. Immediately after the accident he was taken to the District hospital at Palakkad, but he succumbed to the injuries. He was aged only 28 years at the time of death. 3. The appellants claimed that the deceased was assisting his father in running a shop and he was earning an income of Rs.8,000/- per month. The Tribunal fixed his monthly income as Rs.3,500/- and awarded a sum of Rs.7,14,000/- towards loss of dependency. The learned counsel for the appellants submit that the income reckoned by the Tribunal is too low considering the cost of living and the wages prevailing at the relevant time; the compensation awarded under the head loss of affection is not adequate and no amount is awarded towards pain and suffering. 4. Heard learned counsel appearing for the appellant as well as learned counsel appearing for the insurance company. 3 M.A.C.A.NO.1501 OF 2015 5. Considering the cost of living at the relevant time and the fact that the deceased was assisting the running of a shop, we are of the view that it was only reasonable to fix the monthly income at least at the rate of Rs.6000/-. The deceased was 28 years at the time of accident. The multiplier to be applied is 17 and since he had to look after his wife and child, one-third of the expenses have to be deducted. Therefore adding 50% of monthly income towards future prospects, the total compensation payable under the head loss of dependency will come to Rs.12,24,000/- (Rupees twelve lakhs twenty four thousand only) { 6000 x 150 x 17 x 12 x 2 } . 100 3 6. The further claim is with respect to the compensation awarded under the head of loss of love and affection. The Tribunal awarded only Rs.50,000/- . The 2[nd] appellant lost his father at the age of 2. Going by the judgment of the Apex Court in **Rajesh & Ors vs. Rajbir Singh & Ors** reported in **2013 (3) KLT 89 (SC),** at least a sum 4 M.A.C.A.NO.1501 OF 2015 of Rs.1,00,000/- should have been awarded under the head of loss of love and affection and we modify the same accordingly. The Tribunal did not award any amount towards pain and suffering. A sum of Rs.10,000/- should have been just and we therefore award a sum of Rs.10,000/- under this head. 7. Accordingly the additional compensation would be a sum of Rs. (12,24,000-7,14,000)=5,10,000- towards loss of dependency; a sum of Rs.(1,00,000-50,000)=50,000/towards loss of love and affection and a sum of Rs.10,000 towards pain and sufferings. Thus the total enhancement will come to a sum of Rs. 5,70,000/, thereby modifying the total compensation as Rs. (8,94,000+5,70,000)=14,64,000/-. The enhanced compensation will carry interest @ 9% per annum from the date of petition till realization. 8. It is seen that the tribunal has directed payment of Rs.2,56,333/- along with interest to the mother. We are of the view that the mother cannot be said to be a dependent of 5 M.A.C.A.NO.1501 OF 2015 the deceased, especially when the deceased’s father is alive and he is earning income by running the shop, for which the deceased was assisting. In the above circumstances, we modify the said direction of the Tribunal directing that the share due to her need be only a sum of Rs.2,56,333/-without interest. A sum of Rs.25,000/- is seen apportioned to the 4[th] claimant, the father. We are of the view that the appellants 3 and 4 need be granted the respective amounts without interest and the entire balance amount along with interest on the entire compensation, shall be apportioned to appellants 1 and 2-the widow and son equally. A sum of rupees one lakh shall be released to 1[st] appellant, if not released so far. The respective shares of appellants 1 and 2 shall be deposited in fixed deposit in a nationalized bank till the son-the 2[nd] appellant attains majority, with liberty to 1[st] appellant to draw interest accruing on her share. 9. The insurance company shall deposit the said amount along with interest within three months from the date 6 M.A.C.A.NO.1501 OF 2015 of receipt of a copy of this judgment. The appellants shall remit the court fee towards the enhanced compensation, in case it is deficient. The award passed by the Tribunal is modified to the above extent and appeal is allowed accordingly. There shall be no order as to cost. P.N.RAVINDRAN (Judge) P.V.ASHA (Judge) sks/19.8.2016 7 M.A.C.A.NO.1501 OF 2015