Jameela and Others v. N. Ramesh, N. Mugesh and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** ## **THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942** ## **MACA.No.734 OF 2009** ## **AGAINST THE AWARD IN OPMV 1095/2003 DATED 30-10-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/S:** |**1**|**JAMEELA**| |---|---| ||**W/O SIDHIQUE**| ||**PULICKAKUDI HOUSE,**| ||**PALLIPPURAM,, MUDICKAL P.O.,**| ||**PERUMBAVOOR.**| |**2**|**MOHAMMED SABIN (MINOR)**| ||**AGED 11 YEARS**| ||**S/O.SIDHIQUE,**| ||**PULICKAKUDI HOUSE,,**| ||**PALLIPPURAM, MUDICKAL P.O.,,**| ||**PERUMBAVOOR,**| ||**REPRESENTED BY MOTHER JAMEELA.**| |**3**|**SUMAYYA (MINOR)**| ||**AGED 8 AND HALF YEARS**| ||**DAUGHTER SIDHIQUE,**| ||**PULICKAKUDI HOUSE,,**| ||**PALLIPPURAM, MUDICKAL P.O.,**| ||**PERUMBAVOOR,,**| ||**REPRESENTED BY MOTHER JAMEELA.**| |**4**|**EBRAHIM AGED 63 YEARS**| ||**S/O.BEERAN,**| ||**PULICKAKUDI HOUSE,,**| ||**PALLIPPURAM, MUDICKAL P.O.,,**| ||**PERUMBAVOOR.**| |**5**|**NABEESA AGED 59 YEARS**| ||**W/O.EBRAHIM,**| ||**PULICKAKUDI HOUSE,, PALLIPPURAM,**| ||**MUDICKAL P.O.,, PERUMBAVOOR.**| ||**BY ADV. SRI.K.K.MOHAMED RAVUF**| MACA.No.734 OF 2009 2 ## **RESPONDENT/S:** |**1**|**N.RAMESH**| |---|---| ||**S/O NAGAIN,**| ||**1/4K, BRAHMIN STREET,**| ||**KANGEYANALLOOR,,**| ||**VELLOR-6, TAMIL NADU.(DELETED) (BROUGHT BACK)**| |**2**|**N.MUGESH**| ||**S/O.NAGIAN**| ||**NO.9, KAMARAJAR SALAI,,**| ||**VIRUGAMBAKKAM, CHENNAI-92.(DELETED) (BROUGHT BACK)**| |**3**|**NATIONAL INSURANCE CO.LTD.**| ||**D.O.II, REGIONAL MANSION,,**| ||**3RD FLOOR, 46 MOORE STREET,,**| ||**CHENNAI-600 001.**| ||**R1, R3 BY ADV. SRI.A.R.GEORGE**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.734 OF 2009 3 ## **`P.V.KUNHIKRISHNAN, J`** ``` --------------------------------------- ``` ## **`M.A.C.A. No. 734 of 2009`** ``` ------------------------------------------ Dated this the 4[th] day of March 2021 ``` ## **`JUDGMENT`** ``` The appellants are the legal heirs of deceased Sidhique. They filed O.P(M.V). No. 1095/2003 before Motor Accidents Claims Tribunal, Perumbavoor, claiming compensation under Section 166 of the Motor Vehicles Act. ``` ``` 2. The short facts of the case is like this:- Deceased Sidhique was driving vehicle bearing Registration No. KL- 8/T-6276 from south to north keeping the left side of Bangalore - Hiriyoor road and when he reached in front of Nithyananda Asram near K.R.Halli gate Hiriyoor, the offending lorry bearing Registration No. TN-04/B-6877 came from the opposite direction and hit on the right side of the mini lorry driven by the deceased and thereby the deceased sustained serious injuries and he succumbed to death. ``` MACA.No.734 OF 2009 4 ``` According to the appellants, the accident occurred due to the rash and negligent driving of the vehicle by the 2[nd] respondent before the Tribunal. Hence, Respondent Nos. 1 to 3, before the Tribunal are jointly and severally liable to pay the compensation is the contention of the appellant. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) ``` ``` 3. To substantiate the case, Exhibit A1 to A8 were marked on the side of the appellants. Exhibit B1 is the certificate of insurance policy produced by the respondent. After going through the evidence and documents, the Tribunal found that the appellants are entitled an amount of Rs.3,34,110/- (Rupees Three Lakhs Thirty Four Thousand One Hundred and Ten Only) as compensation. It is also found that the 3[rd] respondent/Insurance Company is entitled to recover the amount from Respondent Nos. 1 and 2 jointly and severally. Aggrieved by the quantum of compensation, appellants filed this appeal. ``` MACA.No.734 OF 2009 5 `4. Heard the learned counsel for the appellants and the` `learned counsel for the Insurance Company.` ``` 5. The learned counsel for the appellants raised different contentions. The 1[st] contention raised by the appellants is that the monthly income fixed by the Tribunal is too low. According to the learned counsel for the appellants, the deceased was a driver by profession and he was getting more than Rs.5,000/- per month. The Tribunal fixed the monthly notional income as Rs.2,000/-. The learned counsel submitted that even a coolie will get more than Rs.2,000/- per month. ``` `6. There is some force in the arguments of the learned` ``` counsel. InRamachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236],the Apex Court held that even a coolie will get a monthly income of Rs. 4,500/- in the year 2004. The accident in this case is happened in the year 2003 and therefore, the monthly income of the deceased can be safely fixed as Rs.4,000/-. Moreover, towards future ``` MACA.No.734 OF 2009 6 ``` prospects, 40% increase in the monthly income is to be given in the light of the decision of Apex Court inNational Insurance Co. Ltd v. Pranay Sethi [2017(4) KLT 662]. As far as the multiplier is concerned, the multiplier applicable is ‘17’ only. If that is the case, loss of dependency is to be recalculated like this:- ``` ``` 5600x12x17x3/4=Rs.8,56,800/- ``` ``` The Tribunal awarded an amount of Rs. 2,88,360/- and that is to be deducted. Therefore the appellants are entitled an additional amount of Rs.5,68,440/- (Five Lakhs Sixty Eight Thousand Four Hundred and Forty Only) towards loss of dependency. ``` ``` 7. As far as consortium is concerned, the Tribunal awarded an amount of Rs.15,000/-. Claimants are the wife, two minor children and parents of the deceased. They are entitled consortium in the light of dictum laid down in Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Others [(2018) 18 SCC 130],. Therefore, ``` MACA.No.734 OF 2009 7 ``` the appellants are entitled Rs. 2,00,000/- towards loss of consortium. The Tribunal awarded an amount of Rs. 15,000/- towards love and affection and Rs.15,000/- towards consortium and that is to be deducted from the above amount. Therefore the appellants are entitled an additional amount of Rs. 1,70,000/- (2,00,000-30,000) (Rupees One Lakh Seventy Thousand Only) towards loss of consortium. ``` ``` 8. As far as funeral expenses is concerned, an amount of Rs. 3,000/- is allowed by the Tribunal. In the light of the decision of the Apex Court inNational Insurance Co. Ltd v. Pranay Sethi [2017(4) KLT 662],the appellants are entitled Rs.12,000/- (Rupees Twelve Thousand Only) more towards funeral expenses. ``` `9. Towards loss of estate, only an amount of Rs.2,500/-` `is allowed. The appellants are entitled another amount of Rs. 12,500/- (Twelve Thousand and Five Hundred Only) towards loss of estate also.` `10. The enhanced compensation entitled by the` MACA.No.734 OF 2009 8 ## `appellant can be summarized like this:-` ||`Head`|`Amount`|| |---|---|---|---| ||`Loss of dependency `|`Rs. 5,68,440/-`|| ||`Funeral Expenses`|`Rs. 12,000 /-`|| ||`Loss of Consortium`|`Rs. 1,70,000/-`|| ||`Loss of Estate`|`Rs. 12,500/-`|| ||**`Total`**|**`Rs.7,62,940/-`**|| ``` Therefore, this appeal is allowed in part. The impugned award is modified and the appellants are entitled an enhanced compensation of Rs.7,62,940/- (Rupees Seven Lakhs Sixty Two Thousand Nine Hundred and Forty Only) with interest at the rate of 7.5% p.a, from the date of application till realisation. Respondent No.3 is directed to pay the enhanced compensation. I make it clear that respondent No.3 can recover the amount from Respondent Nos. 1 and 2. ``` ## **`Sd/-`** ## **`P.V.KUNHIKRISHNAN`** ## **`JUDGE`** ``` avs ```