Hamsa @ Hamsa Koya & Others v. Muhammed Shafi, Fahad & Royal Sundaram Alliance Insurance Co. Ltd.

MACA.No.1056/15 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945 MACA NO. 1056 OF 2015_ _AGAINST THE ORDER/JUDGMENT OPMV 154/2013 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL ,KOZHIKODE_ ## _APPELLANT/PETITIONER:_ _1 HAMSA @ HAMSA KOYA, AGED 50 YEARS, S/O.MAMMU, H.NO.221, AVIYIL PARAMBA, NADAKKAVU POST, KOZHIKODE DISTRICT, NOW RESIDING AT 3/2050, NALUKUDI PARAMM, MUNEESH HOUSE, NADAKKAVU POST, PANIKKAR ROAD, KOZHIKODE DISTRICT._ _2 FOUSIYA, AGED 40 YEARS, W/O.HAMSA @ HAMSA KOYA, HOUSE NO.221, AVIYIL PARAMBA, NADAKKAVU POST, KOZHIKODE DISTRICT, NOW RESIDING AT 3/2050, NALUKUDI PARAMM, MUNEESH HOUSE, NADAKKAVU POST, PANIKKAR ROAD, KOZHIKODE DISTRICT._ _3 MUHAMMED MUNEESH, AGED 25 YEARS, S/O.HAMSA @ HAMSA KOYA, 3/2050, NALUKUDI PARAMM, MUNEESH HOUSE, NADAKKAVU POST, PANIKKAR ROAD, KOZHIKODE DISTRICT._ _BY ADVS. SRI.R.SUDHISH_ MACA.No.1056/15 2 ## _SMT.M.MANJU_ ## _RESPONDENTS/RESPONDENTS:_ _1 MUHAMMED SHAFI, S/O.HASSAN, THANNICHAL HOUSE, POST PERUMUGHAM, FEROKE, KOZHIKODE-673 631._ _2 FAHAD, S/O.MUHAMMED ALI, ALUILAKANDI HOUSE, POST PERUMUGHAM, FEROKE, KOZHIKODE-673 631._ _3 ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, M SONS ARCADE, 4TH FLOOR, CHEROOTTY ROAD, KOZHIKODE-673 032._ _BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR._ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1056/15 3 ## **J U D G M E N T** The appellants are the petitioners in O.P.(MV).No.154 of 2013 on the file of the Motor Accidents Claims Tribunal, Kozhikode. 2. The said claim petition was submitted by them seeking compensation for the death of one Muhammed Mubeesh in a motor accident that occurred on 19.04.2012. The 1[st] and the 2[nd] appellants are the parents, and the 3[rd] appellant is the brother of the deceased. The accident occurred when the mini lorry driven by the deceased was hit by a tipper lorry bearing registration No.KL-11-AH-2543. The said tipper lorry was being driven by the 2[nd] respondent, owned by the 1[st] respondent and insured by the 3[rd] respondent. The deceased was aged 22 years at the time of the accident and was working as a driver with a monthly income of Rs.15,000/-. The claim petition was submitted in such circumstances. MACA.No.1056/15 4 3. The owner and driver of the vehicle were ex parte before the Tribunal. The 3[rd] respondent Insurance Company filed a written statement admitting the coverage of the policy but disputed the liability. The negligence, as well as the quantum of compensation, were also disputed. 4. The evidence in this case consists of Exts.A1 to A7 from the side of the appellants, and from the side of the respondents, Exts.B1 to B2 were marked. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the 2nd respondent in driving the tipper lorry, and being the insurer of the said vehicle, the 3[rd] respondent herein was held liable to pay the compensation. The quantum of compensation was fixed as Rs.5,46,000/- and the said amount was directed to be deposited by the 3[rd] respondent with interest at the rate of 8% per annum from the date of petition till realisation. This appeal is submitted by the appellants in such circumstances, seeking enhancement of the compensation. MACA.No.1056/15 5 5. Heard Smt M.Manju, learned counsel for the appellants and Sri.P. Jacob Mathew, learned counsel for the 3[rd] respondent Insurance Company. 6. The main contest in this case is concerning the quantum of compensation awarded by the Tribunal. It was pointed out that the amount awarded by the Tribunal under the head loss of dependency is grossly inadequate. According to the learned counsel for the appellant, even though the monthly income of Rs.15,000/- was claimed, the Tribunal took only a meagre amount of Rs.4,500/-. After considering the materials placed on record, including the nature of employment, date of accident, etc., I find some force in the contention of the learned counsel for the appellant. As per the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co.[2014 (2) SCC 735],** even in the absence of any evidence, the monthly income of an ordinary employee can MACA.No.1056/15 6 be fixed as Rs.4,500/-in respect of an accident that occurred in the year 2004. In this case, it is discernible from the Annexure A7 driving license of the deceased that he was authorized to drive the vehicle from 2008 onwards. He also had authorization to drive transport vehicles. More importantly, at the time of the accident, the deceased was driving a mini lorry. All these aspects would fortify the contention of the appellants that he was a driver by profession. Since the same is skilled employment, a slightly higher income than usually taken for ordinary employees can be accepted. In this regard, it is to be noticed that in **Manusha Sreekumar v. United India Insurance Co.Ltd. [2022 (5) KLT** **OnLine 1024 (SC)],** the Honourable Supreme Court took the monthly income of a driver as Rs.15,600/-, in respect of an accident occurred in the year 2015 by placing reliance upon the statutory notification issued by the Government of Kerala, fixing the minimum wage for a driver. Therefore, the said notification can be taken as a basic document to determine the monthly income in this case. Thus, as the accident in this case occurred in MACA.No.1056/15 7 the year, 2012, I deem it appropriate to fix an amount of Rs.12,000/- as the monthly income in this case. When reassessing the compensation for loss of dependency with the above revised monthly income and by applying the other relevant criteria, as contemplated by the Honourable Supreme Court in **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)],** the amount would come to Rs.18,14,400/[12000+40% x 12 **x** 18 x 1/2]. After deducting Rs.4,86,000/-, the amount already awarded by the Tribunal, the additional amount would come to Rs.13,28,400/- 7. In addition to the aforesaid amount, a further amount of Rs.7,000/- is to be granted under the head of loss of estate as the amount awarded by the Tribunal is only Rs.8,000/-. It is seen from the records that no amount is granted towards the loss of consortium. As per the principles laid down in **Magma General Insurance Co.Ltd. v. Nanu Ram & Others [2018 (3) KLT Online 3095 (SC)]** and **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760],** 1[st] and 2[nd] appellants are MACA.No.1056/15 8 entitled to compensation for loss of consortium at the rate of RS 40,000/- each. Therefore, an amount of Rs.80,000/- is granted under this head. 8. At this juncture, the learned counsel for the appellant would point out that the Tribunal has already awarded an amount of Rs.25,000/- towards loss of love and affection. It was pointed out that when compensation for loss of consortium is awarded, no separate compensation needs to be awarded under the head of loss of love and affection. As the said contention raised by the learned counsel for the Insurance Company is in tune with the principles laid down by the Honorable Supreme Court in **Satinder Kaur (supra)** and **New India Assurance Co.Ltd.v. Somwati and Others [(2020) 9 SCC 644],** it has to be accepted, and therefore, Rs.25,000/- has to be deducted. Similarly, towards funeral expenses, Rs.25,000/- is granted by the Tribunal, which is in excess by Rs.10,000/- and the same is also to be deducted. Thus, the total additional compensation MACA.No.1056/15 9 receivable by the appellant is Rs.13,80,400/[(1328400+7000+80,000)-(10000+25000)]. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 05.11.2013 passed by the Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV).No.154 of 2013 is hereby modified by granting an addition of Rs.13,80,400/- (Rupees thirteen lakhs eighty thousand and four hundred only) and the 3[rd] respondent Insurance Company is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal within a period of three months from the date of receipt of a copy of this judgment. As there was a delay of 274 days in filing the appeal, it is clarified that the Insurance Company shall be entitled to exclude the said period while computing the interest on the additional compensation. Sd/- ## **ZIYAD RAHMAN A.A.** ## **JUDGE** DG/18.10.23