JAMEELA and others v UNITED INDIA INSURANCE CO. LTD. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 29TH DAY OF OCTOBER 2013/7TH KARTHIKA, 1935** **MACA.No. 1728 of 2009 (C)** **-------------------------------------[AGAINST THE AWARD DATED 11-12-2007 IN O.P(M.V).NO.1141/2003 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,MANJERI]** **............** ## **APPELLANTS/PETITIONERS:** **-----------------------------------------** **1. JAMEELA, W/O.LATE C.P.UNNI MOIDEEN, CHAKKIPPARAMBAN HOUSE, THEKKUMPURAM, P.O.THUVVUR, MALAPPURAM DISTRICT.** **2. KHAIRUNNEESA, D/O.LATE UNNI MOIDEEN, DO. DO.** **3. YOUNUS BABU, S/O.LATE UNNI MOIDEEN, DO. DO.** **4. SAREENA, (MINOR), D/O.LATE UNNI MOIDEEN,** - **DO. DO.** **5. SALMANUL FARIS, (MINOR), S/O. LATE UNNI MOIDEEN, DO. DO.** **6. C.P.AHAMMED, F/O.UNNI MOIDEEN, DO. DO.** **7. AYISHA, W/O.C.P.AHAMMED,** - **DO. DO., (MINOR APPELLANTS 4 & 5 ARE REP.BY GUARDIAN MOTHER, 1ST APPELLANT).** **BY ADVS.SRI.K.M.SATHYANATHA MENON, SRI.M.V.ANANDAN, SRI.C.J.SOLOMAN.** ## **RESPONDENTS/RESPONDENTS:** **-----------------------------------------------** **1. UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE, ARATA BUILDING, COURT ROAD, P.O.MANJERI.** **Prv.** ## **M.A.C.A. NO.1728/2009-C:** **2. POOVIL AVARAN HAJI, S/O.AYAMUTTY, P.O.THARISS, KARUVARAKUNDU.** **3. POONKULATHIL AMINA, W/O.POOVIL AVARAN HAJI, P.O.THARISS, KARUVARAKUNDU.** **R1 BY ADV. SRI.A.R.GEORGE, R2 & R3 BY ADV. SRI.VINOD VALLIKAPPAN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** --------------------------------------------------------------MACA No.1728 of 2009 --------------------------------------------------------------Dated this, the 29[th] day of October 2013 ## Judgment ## Siri Jagan, J. The claimants in OP(MV) No.1141/2003 before the Motor Accidents Claims Tribunal, Manjeri, are the appellants herein. They filed the OP, claiming compensation for the death of C.P.Unni Moideen, the husband of the first appellant, the father of appellants 2 to 5 and son of appellants 6 and 7, who died in an accident caused by the negligent driving of a vehicle, owned and driven by the son of respondents 2 and 3, who also died in the accident and insured with the first respondent. The appellants claimed compensation for the death of their breadwinner. The Tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows : MACA No.1728/09 2 ||Head of claim|Amount awarded<br>Rs.| |---|---|---| |1|Transport to hospital|1,000.00| |2|Funeral expenses|2,000.00| |3|Damage to clothing|250.00| |4|Extra nourishment & bystander's expenses|300.00| |5|Pain and suffering|5,000.00| |6|Loss of consortium|5,000.00| |7|Loss of love and affection|5,000.00| |8|Loss of estate|2,500.00| |9|Loss of dependency|240,000.00| ||Total|2,61,050.00| But, the Tribunal exonerated the insurance company from liability on the ground that the policy was only one issued for satisfying the provisions of the Motor Vehicles Act and the deceased was a pillion rider in the motor cycle, who is not covered by the policy. Dissatisfied with the findings of the Tribunal on the question of exoneration of liability of the Insurance Company and the quantum of compensation, the appellants have field this appeal. 2. The accident was on 08.02.2003. The deceased died on 10.02.2003 because of the injuries suffered by him in the accident. He was 44 years old at the time of his death. The appellants claimed that he was running a business and was earning a monthly income of Rs.5,000/-. But, the Tribunal arbitrarily fixed his monthly income only as Rs.2,000/-, is the first contention. MACA No.1728/09 3 The second contention is that although there were more than four claimants, the Tribunal deducted 1/3[rd] for the personal expenses of the deceased, which could have been only 1/4[th] , as per the decision of the Supreme Court in **Sarla Varma v. Delhi Transport Corporation** (2010(2) KLT 802 (SC). It is further submitted that the compensation awarded by the Tribunal under the head 'pain and sufferings' is on the lower side. The compensation for loss of consortium of the 1[st] appellant wife and for loss of love and affection of the other claimants and loss of estate are also on the lower side, is the other contention. The learned counsel for the appellant therefore, seeks enhancement of compensation under all heads. 3. We have heard the learned counsel for the insurance company as well as the learned counsel for respondents 2 and 3. The learned counsel for respondents 2 and 3 argues in support of their respective contentions. 4. We have considered the rival contentions in detail. 5. Of course, there is no evidence regarding the monthly income of the deceased. But, the accident was on MACA No.1728/09 4 8.2.2003 and the deceased was aged 44 years at the time of the accident. He claimed to have been running a business. Taking into account these facts, we are inclined to fix the monthly income of the deceased as Rs. 3000/-, instead of Rs. 2000/-, fixed by the Tribunal. Although the 2[nd] appellant is 22 years old, still, we are of opinion that even excluding him, there were more than four dependants for the deceased. Therefore, only one-fourth could have been deducted for the personal expenses of the deceased. But, we find that the multiplier adopted by the Tribunal is 15, whereas as per decision in _**Sarla Verma's case**_ (supra), it could have been only 14. Calculating the loss of dependency on the basis of these inputs, the compensation under that head would be Rs. 3,78,000/- (Rs. 3000 x 12 x 14 x ¾) instead of Rs.2,40,000/awarded by the Tribunal. The difference would be Rs. 1,38,000/-. Insofar as the 1[st] appellant was only 40 years old at the time of death of her husband, we are inclined to enhance the compensation for loss of consortium to Rs. 25,000/- from Rs. 5,000/-, awarded by the Tribunal. Likewise, since the children and aged parents lost the love and affection of the deceased, we are MACA No.1728/09 5 inclined to enhance the compensation for loss of love and affection to Rs. 30,000/- from Rs. 5000/- awarded by the Tribunal. We increase the compensation for loss of estate to Rs.5000/- and the compensation for pain and sufferings to Rs.10,000/-. Adding together, the appellants would be entitled to additional compensation of Rs. 1,90,500/-, over and above what has been awarded by the Tribunal. 6. As far as the question of liability of the insurance company is concerned, the policy issued by the 1[st] appellant is only one to satisfy the requirements of the provisions of the Motor Vehicles Act. It is settled law that a pillion rider in a motor cycle is not covered by a policy issued for satisfying the provisions of the Act unless it is a comprehensive/package policy. Although in the award, it is stated that it is a “B” policy, after perusing the copy of the policy, we are satisfied that the same is a policy issued only to satisfy the provisions of the Motor Vehicles Act. That being so, we do not find anything wrong with the finding of the Tribunal that the insurance company is not liable to indemnify the owner of the vehicle for the compensation found to be payable by the owner of MACA No.1728/09 6 the vehicle. Of course, the learned counsel for respondents 2 and 3 would contend that they are liable only to the extent of the property inherited by them from the deceased owner-cum-driver of the motor cycle. But, respondents 2 and 3 have not chosen to take that contention either before the Tribunal or before this Court by filing a cross objection. Accordingly, we leave that question open. In the above circumstances, we modify the impugned award to the extent of awarding additional compensation of Rs. 1,90,500/- with interest at the rate of 9% per annum from the date of claim petition till date of payment. The appeal is disposed of as above. **S.SIRI JAGAN, JUDGE** ## **K.RAMAKRISHNAN,JUDGE** sta MACA No.1728/09 7 MACA No.1728/09 8