K.C. Kunhi Mohammed & Others v. Mohanan & P. Subaida & The Oriental Insurance Company Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 30TH JULY, 2008 / 8TH SRAVANA, 1930 **– MACA.No. 192 of 2003 B** (O.P(MV) No.318/2000 on the file of the Motor Accidents Claims Tribunal, Ottappalam.) ## APPELLANTS/PETITIONERS: ----------------------------------- 1. K.C.KUNHI MOHAMMED, S/O.KURUVANNA KUNHAVARA, KURUVANNA HOUSE, ARAKKURUSSI AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT. ## 2. UMMATHUNNI UMMA, W/O.K.C.KUNHIMOHAMMED, - 'DO' 'DO' 'DO' 3. SALEENA, W/O.LATE K.ABDUL NAZAR, - 'DO' 'DO' 'DO' 4. MOHAMMED MUFEED, AGED 3 YEARS (MINOR) S/O.LATE K.ABDUL NAZER, 'DO' 'DO' 'DO' (REPRESENTED BY FATHER'S FATHER, GUARDIAN AND NEXT FRIEND, K.C.KUNIMOHAMMED, (1ST APPELLANT) BY ADV. SRI.SANTHEEP ANKARATH RESPONDENTS/RESPONDENTS IN OP (MV) NO.318/2000: --------------------------------------------------------------------- 1. MOHANAN, S/O.KUNHUNNI VAIDIAR, MATTUMMATHODI HOUSE, POST PANG, VIA. KOLATHOOR, MALAPPURAM DISTRICT. 2. P.SUBAIDA, W/O.KUTTI HASSAN, MELATHIL HOUSE, KOOTTILANGADI (POST), MALAPPURAM DISTRICT, PIN - 676 506. :-2-: ## M.A.C.A.NO.192 OF 2003 3. THE ORIENTAL INSURANCE COMPANY LIMITED, JASEELA COMPLEX, NILAMBUR ROAD, MANJERI (POST), MALAPPURAM DISTRICT, PIN - 676 121. BY ADV. SRI.MATHEWS JACOB (SR.) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON 30/07/2008 DELIVERED THE FOLLOWING: ## **C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ.** ## **--------------------------------------------M.A.C.A.No. 192 of 2003 - B --------------------------------------------Dated this the 30[th] day of July, 2008** ## **J U D G M E N T** ## **Mohanan,J:** Aggrieved by the insufficient amount of compensation awarded by the Motor Accidents Claims Tribunal, Ottappalam in O.P.(MV) No.318 of 2000, the appellants therein have approached this Court by filing the above appeal. 2. On the death of Abdul Nazar in a motor vehicle accident occurred on 19.8.1999 at about 8 a.m. near Aryancavu junction at Mannarkkad-Palakkad road, the appellants/petitioners, who are father, mother, wife and child of the deceased Abdul Nazar, filed a claim petition under Section 166 of the Motor vehicles Act for a total compensation of Rs.15,00,000/-. First and second respondents are the driver and owner of the vehicle which was involved in the accident. Third respondent is the insurer. ## **M.A.C.A NO.192 OF 2003** ## **:-2-:** 3. During the trial of the above claim petition, Pws.1 and 2 were examined from the side of the claimants and marked Annexures A1 to A31 on their side. From the side of respondents, only Ext.B1 was marked. Finally the Tribunal had fixed the compensation as Rs.7,24,700/- and petitioners were allowed to recover the said amount with interest at the rate of 9% from the date of petition till realisation. It is the said award impugned in this appeal as it is insufficient. 4. We have heard the learned counsel for the appellants as well as respondents. 5. It is the case of appellants/petitioners that they were planters and the deceased was having plantain and also used to plant rubber for others for reward and they claimed that his income will come more than Rs.10,000/- per month. They got another case that he was a person who was looking after the plantations as well as driving the vehicles in their house. It is the case of the appellants that because of his death, PW-1 was ## **M.A.C.A NO.192 OF 2003** ## **:-3-:** constrained to employ one Manager as well as one Driver so as to make up the loss occurred due to the death of Abdul Nazar and the Tribunal failed to award any amount under that count. The learned Tribunal assessed the income of the deceased as Rs.3,000/- as the deceased was a planter who died in a motor vehicle accident while he was driving a jeep. In order to arrive such a conclusion, the Tribunal placed reliance on the decision reported in **New India Assurance Co.Ltd.** v. **Dahyaben Jayantilal Panchal** (2000 ACJ 957). Out of Rs.3000/-, Rs.1000/- is deducted towards the personal expenses of the deceased. The net income fixed is Rs.2000/- and by applying the correct multiplier as 17, the Tribunal fixed the compensation towards loss of dependency as Rs.4,08,000/-. The appellants miserably failed to establish the income of the deceased, otherwise than fixed by the Tribunal, based upon any concrete evidence. Therefore, according to us, the compensation fixed towards dependency seems to be fair and reasonable. ## **M.A.C.A NO.192 OF 2003** ## **:-4-:** 6. The Tribunal had already allowed an amount of Rs.2,42,000/- as per the bills produced by the claimants. The deceased was in the hospital for 168 days, but the were hospital expenses including the bystanders expenses fixed as Rs.25,200/- which seems to us to be very low and therefore, we are of the opinion that the compensation under the said head has to be increased to the tune of **Rs.35,200/-** . Under the head of suffering and pain, the amount fixed by the Tribunal seems to be very low and hence, we are inclined to enhance the amount and refix the same as **Rs.40,000/-** against Rs.25,000/- **.** Under the head towards loss of love, care and protection, the Tribunal has ordered only Rs.2,500/-. The same has to be fixed as **Rs.5,000/-** . The third petitioner is a young lady who lost her husband on her young years. Considering her age towards the loss of consortium, we fix the same as **Rs.25,000/-** against Rs.10,000/- fixed by the Tribunal. The Tribunal had already awarded a sum ## **M.A.C.A NO.192 OF 2003** ## **:-5-:** of Rs.5,000/- to the fourth petitioner towards loss of love and affection and guidance of his father. We feel that the amount so fixed by the Tribunal is liable to be enhanced at **Rs.10,000/-.** Accordingly, it is refixed as Rs.10,000/-. 7. In the result, this appeal is disposed of allowing the petitioners/appellants to recover and realise a sum of **Rs.47,500/-** (Rupees Forty Seven Thousand Five Hundred only) as additional compensation with 7.5% interest from the date of filing of the petition till the date of realisation from the third respondent. The third respondent is directed to deposit the additional compensation awarded by us within a period of three months from the date of receipt of a copy of this judgment. ## **C.N.RAMACHANDRAN NAIR, Judge** ## **V.K.MOHANAN, Judge** MBS/ ## **M.A.C.A NO.192 OF 2003** ## **:-6-:** ## **C.N.RAMACHANDRAN NAIR** **& V.K.MOHANAN, JJ.** -------------------------------------------- M.A.C.A.NO. 192 OF 2003 -------------------------------------------- J U D G M E N T DATED: 30-07-2008 ## **M.A.C.A NO.192 OF 2003** **:-7-:**