Jisha and others v. Hasker, Gladwin and National Insurance Company Ltd., MACA No. 2077 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA,** ## **1943** **MACA NO. 2077 OF 2013** **AGAINST THE AWARD DATED 08.02.2013 IN OPMV 519/2012 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANTS/PETITIONERS:** 1 JISHA, W/O BABURAJAN (LATE) AGED 37 YEARS 2 GOVIND P.C. (MINOR) AGED 12 YEARS S/O LATE BABURAJAN, D.O.B 29.4.1999. 3 NRITHA P.C. (MINOR) AGED 8 YEARS D/O LATE BABURAJAN, D.O.B. 11.2.2004 MINORS REPRESENTED BY MOTHER/LEGAL GUARDIAN JISHA, ALL RESIDING AT PADINJARE POOLAKKANDI HOUSE, 33, MALAPARAMBU, KOZHIKODE. BY ADVS. SRI.AVM.SALAHUDIN SMT.EMIL STANLEY ## **RESPONDENTS/RESPONDENTS:** 1 HASKER S/O MOHAMMED, AGE NOT KNOWN, RESIDING AT EDAKANDATHIL HOUSE, PUTHUPARAMBU P.O., EDARIKKODE, MALAPPURAM. 2 GLADWIN AGED 20 YEARS W/O JOY, RESIDING AT KUTTIKKATTIL HOUSE, SUN VIEW P.O., KANAKAMALA, THRISSUR. 3 NATIONAL INSURANCE COMPANY LTD. 2ND FLOOR, NOOR COMPLEX, P.B.NO.811, MAVOOR ROAD, KOZHIKODE. FOR R3 SRI C.M.JOSEPH, STANDING COUNSEL FOR R1 BY ADV SRI.NOORJI NOUSHAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.2077/2013 2 ## _**A. BADHARUDEEN, J.**_ ================================ _M.A.C.A No.2077 of 2013_ ================================ _Dated this the 25[th] day of November, 2021_ ## _**J U D G M E N T**_ Appellants are the petitioners in O.P(MV).No.519/2012 on the file of the Principal Motor Accident Claims Tribunal, Kozhikode and they are challenging award dated 08.02.2013 arraying original respondents as respondents herein whereby the Tribunal granted Rs.5,89,500/- as against the claim of Rs.7 lakh. 2. Heard both sides. 3. The specific case put up by the appellants/petitioners, who are the wife and children of deceased Baburajan, before the Tribunal is that Baburajan died in a motor accident occurred on 18.08.2011 at about 8.30 while he was travelling as a pillion rider on a motor cycle through Kozhikode-Wayanad public road. It was their further case that the accident occurred solely due to the rash and negligent driving of the 2nd respondent, the rider of M.A.C.A.No.2077/2013 3 another motorcycle which hit the motor cycle in which the deceased was a pillion rider. 4. Respondents 1 and 2 were set exparte by the Tribunal. The 3rd respondent filed written statement and admitted policy while disputing quantum of compensation. 5. The Tribunal anxiously considered the rival claims relying on documents marked as Exts.A1 to A5 on the part of the appellants/petitioners and Exts.B1 to B3 on the part of the 3rd respondent. 6. The learned counsel for the appellants would submit that the quantum of compensation arrived at by the Tribunal is on lower side. According to the learned counsel, Rs.25,000/- was claimed as the monthly income of the deceased being a Cine Artist. But the learned counsel fairly conceded that no substantial evidence is adduced to prove this contention. Therefore, it is submitted by the learned counsel further that the monthly income following the ratio in [(2011) 13 SCC 236], _**Ramachandrappa v.**_ M.A.C.A.No.2077/2013 4 _**Manager, Royal Sundaram Alliance**_ and [AIR 2014 SC 1052 : (2014) 2 SCC 735], _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd.**_ is to be taken. It is true that in Ramachandrappa's case ( _supra_ ) the Apex Court fixed Rs.4,500/- as the monthly income of a coolie during 2004. By giving permissible addition, the monthly income of the deceased can be fixed at Rs.8,000/-. 25% addition also to be made towards future prospects following the ratio in [(2017) 16 SCC 680], _**National Insurance Company Limited v. Pranay Sethi & Ors.**_ Hence Rs.10,000/- [8000 + 2000 (8000X25/100) is taken as the monthly income of the deceased for calculating the compensation under the head loss of dependency. Hence the loss of dependency would be: 10000 X 12 X 13 X 2/3 = 10,40,000/-, out of which the Tribunal Granted Rs.5,20,000/- and the balance amount of **Rs.5,20,000/more** is granted under the head **loss of** . **dependency** 7. The learned counsel for the appellants canvassed M.A.C.A.No.2077/2013 5 increase under the conventional heads also following the ratio in 's case . _**Pranay Sethi**_ ( _supra_ ) 8. Going by the award, it appears that the Tribunal granted Rs.8,000/- alone towards funeral expenses. Therefore, **Rs.7,000/- more** is granted under this head. Similarly, the Tribunal granted Rs.10,000/- alone under the head loss of estate. Therefore, **Rs.5,000/- more** is granted under this head. Coming to **loss of consortium** , the Tribunal granted only Rs.10,000/though petitioners 1 to 3, being the wife and children of the deceased, together entitled to get Rs.1,20,000/- and therefore **Rs.1,10,000/- more** is granted under this head following the ratio in _**Pranay Sethi**_ 's case ( _supra_ ). 9. The learned counsel for the insurance company canvassed deduction under the head pain and suffering and loss of love and affection following the ratio in [AIR 2020 SC 3076], _**United India Insurance Co. Ltd. v. Satinder Kaur**_ . 10. The Tribunal granted pain and suffering to the tune of M.A.C.A.No.2077/2013 6 Rs.15,000/- and loss of love and affection to the tune of Rs.25,000/-. The said heads are impermissible following the ratio in _**Satinder Kaur**_ ( _supra_ ). Therefore, **Rs.40,000/-** granted under these heads is **deducted** . 11. In the result, the appeal is allowed in part. It is held that the appellants/petitioners are entitled to get Rs.6,02,000/(Rupees Six lakh two thousand only) as enhanced compensation and the award impugned is modified as above with the same rate of interest granted by the Tribunal from the date of petition till the date of deposit or realisation. 12. The insurance company is directed to issue cheque for Rs.4,915/- (Rupees Four thousand nine hundred and fifteen only) towards court fee for the enhanced amount of compensation in the name of M.A.C.T, Thrissur within two months. The insurance company is directed to deposit the balance amount in the name of the appellants in the proportion fixed by the Tribunal within two months from today and the appellants are at M.A.C.A.No.2077/2013 7 liberty to release the same, on deposit. 13. It is submitted by the learned counsel for the insurance company that pay and recovery right was granted in relation to the award amount passed by the Tribunal and therefore the insurance company shall be given right of recovery in relation to the enhanced amount also. Going by the award, the submission appears to be correct. Therefore, it is specifically ordered that the insurer can recover the enhanced compensation also after depositing the same in the name of the appellants. It is ordered further that the right of recovery granted herein is liable to be revisited by the Tribunal while proceeding with execution proceedings for recovery of the amount, if the driver or the owner of the offending vehicle produce effective Driving Licence to the satisfaction of the Tribunal concerned after notice and providing opportunity of hearing to the counsel for the insurance Company. On satisfying possession of valid and effective driving licence by the driver of the offending vehicle, M.A.C.A.No.2077/2013 8 the Tribunal can record the said fact and ignore the recovery hereby granted and close the execution proceedings without proceeding further to recover the amount in view of this judgment. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_