Kadeesa and Others v. Abdul Hakeem and Tata AIG General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 27TH DAY OF MAY 2019 / 6TH JYAISHTA, 1941** ## **MACA.No.1774 of 2014** **AGAINST THE AWARD IN OPMV 153/2012 of MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR DATED 31-12-2013** ## **APPELLANTS/PETITIONERS:** - **1 KADEESA** **AGED 56 YEARS** **W/O.LATE SAIDALI @ SADALAVI, KATTIPARUTHI POOKATTU HOUSE, PANAYAPURAM, PO CHELEMBRA, PIN 673 634, MALAPPURAM DISTRICT.** ## **2 MAIMOONATH** **AGED 34 YEARS** **W/O.MUHAMMED BASHEER, KATTIPARUTHI POOKATTU HOUSE, PANAYAPURAM, PO CHELEMBRA, PIN 673 634, MALAPPURAM DISTRICT.** - **3 MUHAMMED SABITH (MINOR) AGED 8 YEARS** **S/O.LATE MUHAMMED BASHEER, KATTIPARUTHI POOKATTU HOUSE, PANAYAPURAM, PO CHELEMBRA, PIN 673 634, MALAPPURAM DISTRICT.** - **4 MUBASHIR (MINOR) AGED 6 YEARS** **S/O.LATE MUHAMMED BASHEER, KATTIPARUTHI POOKATTU HOUSE, PANAYAPURAM, PO CHELEMBRA, PIN 673 634, MALAPPURAM DISTRICT.** M.A.C.A.No.1774 of 2014 ..2.. **5 AYISHA AGED 37 YEARS D/O.LATE MUHAMMED BASHEER, KUMMANGATTIL HOUSE, P.O.KUZHIMANNA, VIA.KONDOTTY, MALAPPURAM DISTRICT, [MINOR PETITIONERS 3 AND 4 ARE REPRESENTED BY THEIR MOTHER AND GUARDIAN THE 2ND PETITIONER]** **BY ADV. SRI.P.CHANDRASEKHAR** **RESPONDENTS/S: 1 ABDUL HAKEEM AGED 25 YEARS S/O.KUNHOKKU K.M., PUNNODIYIL HOUSE, SALAMATH NAGAR, P.O.PUTHUR, PALLIKKAL, MALAPPURAM673638. 2 MS.TATA AIG GENERAL INSURANCE CO.LTD. 1-501, 5TH FLOOR, BUILDING NO.4, INFINITY PARK, DINDOSHI, MALAD (E), MUMBAI, MAHARASHTRA, PIN-400097. BY ADVS. SRI.R.AJITH KUMAR (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.A.C.A.No.1774 of 2014** ## **-----------------------------------** ## **JUDGMENT** The claimants in a proceedings for compensation before the Motor Accidents Claims Tribunal have come up in this appeal challenging the award of the Tribunal. 2. One Basheer died in a motor accident took place on 22.07.2011. The deceased was travelling in an autorikshaw and the accident occurred on account of the collision of the autorikshaw with a motor car. The deceased was aged 29 years. The mother, two wives and two minor children of the deceased were the claimants in the proceedings. It is alleged by the claimants that the deceased was working in a Gulf country and the accident took place when he was on leave in India. The case set up by the claimants in the claim petition is that the accident occurred on account of the negligence of the driver of the car. A sum of Rs.18,00,000/- was claimed by way of compensation in the proceedings. The claim petition was contested by the insurer M.A.C.A.No.1774 of 2014 ..4.. of the car on the ground that the accident occurred on account of the negligence of the driver of the autorikshaw and as such, they are not liable to compensate the claimants. The Tribunal found that the accident occurred on account of the negligence of the driver of the autorikshaw as well and apportioned his negligence at 25%. As regards the quantum of compensation, the Tribunal found that the claimants are entitled to a sum of Rs.12,00,000/-. In so far it was found that the accident occurred on account of the negligence of the driver of the autorikshaw as well, the Tribunal directed the insurer of the car to deposit only 75% of the compensation determined as due to the claimants. The claimants are aggrieved by the said decision of the Tribunal. 3. Heard the learned counsel for the appellants as also the learned counsel for the insurer of the car. 4. As noted, the deceased was a passenger in the autorikshaw. It is seen that the autorikshaw was overloaded. It was carrying 9 passengers at the time of accident while its passenger capacity including its driver was only 4. It is seen M.A.C.A.No.1774 of 2014 ..5.. that it is on account of the said reason that the Tribunal found that the driver of the autorikshaw was also negligent in the matter of causing the accident and it is on that basis that the Tribunal has absolved the insurer of the car from their liability to pay 25% of the compensation. According to me, the Tribunal was not justified in absolving the insurer of the car from the liability to pay 25% of the compensation. Going by the finding rendered by the Tribunal, it is a case of composite negligence. In the case of composite negligence, the liability of the joint tort feasors is joint and several and the claimants are entitled to realise the compensation from any one of them or their insurers. The insurer of the car is, therefore, not entitled to be exonerated from the liability to the tune of 25% of the compensation, and the direction to the contrary contained in the award is liable to be set aside and I do so. 5. Coming to the correctness of the quantum of compensation fixed by the Tribunal, as noted, the mother, two wives and two minor children of the deceased were the claimants in the proceedings. It was alleged by the claimants M.A.C.A.No.1774 of 2014 ..6.. in the claim petition that the deceased was earning a sum of Rs.10,000/- per month. The Tribunal has reckoned the monthly income of the deceased only at Rs.7,500/-. The Tribunal has not taken note of the future prospects in the matter of arriving at the compensation for loss of dependency. Further, it is seen that the multiplier applied is '16', whereas the multiplier to be applied in respect of a person aged 29 is '17'. In short, the compensation payable to the claimants towards loss of dependency is liable to be revised. 6. Exhibit A19 is the passport of the deceased. Exhibit A19 indicates that the deceased was working in Saudi Arabia at the relevant time. In the light of the decisions of the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [** (2011) 13 SCC 236] and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [** (2014) 2 SCC 735] where the Apex Court has reckoned the monthly income of persons whose income could not be established by positive evidence, at Rs.4,500/- and Rs.6,500/- respectively, in the context of M.A.C.A.No.1774 of 2014 ..7.. accidents took place in the year 2004 and 2008, having regard to the fact that the accident in the instant case took place in the year 2011 and the fact that the deceased was working abroad, I am of the view that the monthly income of the deceased could have been reckoned by the Tribunal at Rs.8,500/-. If compensation for loss of dependency is worked out in that fashion, the same would come to Rs.18,20,700/(Rs.8500x140/100x12x17x3/4). The Tribunal has granted only a sum of Rs.9,60,000/- to the claimants under this head. The claimants are, therefore, entitled to a sum of Rs.8,60,700/- by way of additional compensation. The compensation granted to the claimants under other heads appear to be in order. The total compensation payable to the claimants would thus come to Rs.20,60,700/-. In the result, the appeal is allowed, re-fixing the compensation payable to the claimants at Rs.20,60,700/- and directing the second respondent to satisfy the entire award. The second respondent need pay interest on the additional amount of compensation in terms of this judgment only at the M.A.C.A.No.1774 of 2014 ..8.. rate of 7.5% per annum. The parties are at liberty to move the Tribunal for directions as regards deposit of the additional amount of compensation granted and for the disbursal thereof. Sd/- **P.B.SURESH KUMAR,** **JUDGE** kkj