Hamza and others v. Shanavas and Muhammed Rafi and National Insurance Co. Ltd.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945 ``` ``` MACA NO. 149 OF 2017 ``` ``` AGAINST THE AWARD DATED 09.07.2014 IN OP(MV)NO.1119/2013 OF MOTOR ``` ``` ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE ``` ## `APPELLANTS/PETITIONERS IN O.P.(M.V.)` ``` 1HAMZA, AGED 52 YEARS, S/O.AHAMED KOYA, RESIDING AT BAITHUL AFZAL HOUSE, PALLIKANDY PUTHIYANGADI (P.O.), KOZHIKODE, PIN-673021 2SOUJATH @ SHOUJATH, AGED 45 YEARS, W/O.HAMZA, RESIDING AT BAITHUL AFZAL HOUSE, PALLIKANDY PUTHIYANGADI (PO), KOZHIKODE, PIN-673021 3HARSHAD, AGED 26 YEARS, S/O.HAMZA, RESIDING AT BAITHUL AFZAL HOUSE, PALLIKANDY PUTHIYANGADI (P.O.), KOZHIKODE, PIN-673021 4HARSHITHA @ ARSHITHA, AGED 24 YEARS, D/O.HAMZA, RESIDING AT BAITHUL AFZAL HOUSE, PALLIKANDY PUTHIYANGADI (P.O.), KOZHIKODE, PIN-673021 ``` ``` BY ADV SRI.K.MUHAMMED SALAHUDHEEN ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1SHANAVAS, S/O.ABDUL LATHEEF, PALLIKKANDY HOUSE, KOYA ROAD, PUTHIYANGADI (PO), KOZHIKODE, PIN-673021 2MUHAMMED RAFI, AGED 22 YEARS, S/O.SHANAVAS,PALLIKKANDY HOUSE, (P.O.) PUTHIYANGADI, PALLIKANDY BEACH, KOZHIKODE-673021 3NATIONAL INSURANCE CO. LTD. 4TH FLOOR, PARCO TOWER, P.M.THAJ ROAD, P.B.NO.207, KOZHIKODE-673001 R1 AND R2 BY ADVS.SRI.E.NARAYANAN R3 BY.ADV.SRI.SEBASTIAN VARGHESE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.149 of 2017 ``` ``` 2 ``` ## **`JUDGMENT`** ``` Dated this the 03[rd] day of November, 2023 ``` The appeal on hand is directed against an award passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short, ‘the Tribunal’) on 09.07.2014 in O.P(M.V) No.1119 of 2013. Appellants are the petitioners before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 1 to 4 and respondents 1 to 3 in accordance with their status in the Original Petition. 3. As per the allegations in the Original Petition, one Mr.Afzal met with a motor accident at 10 p.m on 10.01.2013. While walking along the Beach Road, he was knocked down by a Motorcycle bearing Registration No.KL-11-AP-2498 and thereby sustained serious injuries. He was rushed to Baby Memorial Hospital, Kozhikode and was treated there as inpatient for several days but succumbed to the injuries on 20.01.2013. A sum of `10,00,000/was claimed as ``` M.A.C.A.No.149 of 2017 ``` ``` 3 ``` compensation from the owner, the rider and the insurer of the offending Motorcycle, who were arrayed as respondents 1 to 3 in the Original Petition. 4. Petitioners and respondents adduced documentary evidence respectively as Exts.A1 to A7 series and Exts.B1 and B2. The Tribunal found on the basis of the evidence adduced as above that the rider of the Motorcycle has caused the motor accident by his rash and negligent driving. The Tribunal also arrived at a sum of `4,84,627/- as the total compensation payable in favour of the petitioners on account of the death of Mr.Afzal. It directed the 3[rd] respondent, insurer of the Motorcycle to deposit the amount in favour of the petitioners with interest accrued on it at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation alongwith proportionate costs. 5. Aggrieved by the quantum of compensation stood awarded by the Tribunal, the appeal on hand is filed by the petitioners. The main grievance projected by the learned counsel for the petitioners was that the monthly income was ``` 4 ``` ## **`M.A.C.A.No.149 of 2017`** not fixed by the Tribunal in accordance with the fixation of the monthly income by the Apex Court in the case of a Coolie worker in **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236].** According to him, if fixed in that manner, `9,000/would have been the appropriate notional income and there would also be variance in calculation of compensation towards loss of dependency. 6. According to the learned counsel, the Tribunal failed to award just and reasonable compensation under the conventional heads in accordance with the fixation by the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)].** Accordingly, he seeks for modification of the compensation under those heads. 7. The learned counsel for the 3[rd] respondent has contended on the contrary that `25,000/- and `5,000/respectively stood awarded by the Tribunal as compensation towards loss of love and affection and pain and suffering are liable to be deducted from the additional compensation that ``` M.A.C.A.No.149 of 2017 ``` ``` 5 ``` would be arrived at in the appeal on hand, since the petitioners are disentitled for that. 8. It is noticed from the impugned award that the monthly income was taken by the Tribunal as `3,500/-. The petitioners claimed the deceased as a Coolie worker earning Rs.600/- per day. In the absence of any evidence adduced by the petitioners, the Tribunal took `3,500/- as the monthly income on a notional basis and compensation for loss of dependency was calculated on its basis. `9,000/- is re-fixed as the monthly income of the petitioner, it being a sum proportionate to the monthly income fixed by the Apex Court in **Ramachandrappa** supra. Since the victim of the motor accident was aged 20 years at the relevant time of his death, the correct multiplier applicable being '18' is adopted for the purpose of calculation. Since he was a self employed man, 40% is also added to the monthly income in consideration of loss of his future prospects due to his untimely death. He being a bachelor, half of the monthly income is also liable to be deducted while calculating compensation, having due regard to ``` M.A.C.A.No.149 of 2017 ``` ``` 6 ``` the personal expenditure, he would have to incur, had he been alive. When compensation for loss of dependency is calculated afresh on the basis of the factors modified now as well as those adopted by the Tribunal, maintained, `13,60,800/- [(`9,000/- + `3,600/-) x 12 x 18 x 1/2)] is arrived at. `3,78,000/- already stood awarded by the Tribunal when adjusted against, petitioners will get `9,82,800/- as additional compensation. 9. As compensation towards loss of estate, the Tribunal failed to award any sum and this Court awards `16,500/- the sum for which they are entitled to as per the direction issued by the Apex Court in **Pranay Sethi** supra. The Tribunal has awarded only `15,000/- as compensation towards funeral expenses and therefore, `1,500/- more is also awarded under that head. 10. The Tribunal failed to award compensation for loss of consortium in favour of the parents of the deceased. The victim who died in the motor accident was survived by his parents and siblings. The siblings are not entitled to get any compensation towards loss of consortium, but the parents are entitled to. ``` M.A.C.A.No.149 of 2017 ``` ``` 7 ``` Therefore, they will get `88,000/- (`44,000/- x 2) as compensation towards loss of consortium. 11. When calculated in the above manner afresh, `10,88,800/- is arrived at, out of which, `30,000/- (`25,000/+ `5,000/-) is the compensation stood awarded by the Tribunal towards loss of love and affection and pain and suffering, for which the petitioners have no entitlement to. Those amounts when deducted from the total compensation arrived at, the petitioners will get `10,58,800/- [(`9,82,800/- + `16,500/- + `1,500/- + `88,000/-) - (`30,000/-)] (Rupees Ten lakh fifty eight thousand eight hundred only) as additional compensation, which will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation excluding 780 days of delay occurred in filing the appeal on hand. 3[rd] respondent shall pay the additional compensation arrived at now, with interest accrued on it within a period of two months, from the date on which a certified copy of this judgment is received in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. ``` M.A.C.A.No.149 of 2017 ``` ``` 8 ``` On deposit being made, the 3[rd] respondent is also entitled to get recovery of the compensation amount from respondents 1 and 2 after it being deposited in favour of the petitioners, based on the finding of the Tribunal that the 2[nd] respondent was not holding a valid driving licence to ride the Motorcycle at the relevant time of the motor accident. 12. The total compensation awarded in favour of the petitioners being excess than the total compensation claimed by them, the Tribunal shall also see that proportionate court fee is realised from the petitioners while disbursing the compensation in their favour. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** MJL