K.K. Pareedmusiliyar, MC Nabeesa and K.P. Jaffer v. The New India Assurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA, 1945 MACA NO. 3491 OF 2019 ``` ``` AGAINST THE AWARD DATED 23.09.2017 IN O.P(M.V) NO.542/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1K.K.PAREEDMUSILIYAR AGED 68 YEARS S/O. KUNJUMARAYKKAR 2MC NABEESA, AGED 56 YEARS W/O. K.K.PAREEDMUSILIYAR 3K.P.JAFFER, AGED 28 YEARS S/O. K.K.PAREEDMUSILIYAR (ALL THE APPELLANTS/ PETITIONERS RESIDING AT KARIPPANKULAM HOUSE, IDUKKUPARA GOVINDAPURAM P.O., MUTHALAMADA, CHITTUR TALUK, PALAKKAD) BY ADV SRI.BABY MATHEW ``` ## **`RESPONDENT/3RD RESPONDENT:`** ``` THE NEW INDIA ASSURANCE CO. LTD, REP BY DIVISIONAL OFFICER, NS TOWERS, 1ST FLOOR, NEAR STADIUM BUS STAND, COIMBATORE ROAD, KUNNATHURMEDU, PALAKKAD DISTRICT-678 001 (INSUREER OF LORRY BEARING REG NO.KL-17C-592) POLICY NO. 76110081130000023942 VALID FROM 20/09/2013 TO 19/09/2014 BY ADVS. SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` HEARING ON 22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.3491 of 2019 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 22[nd] day of November, 2023** The appeal on hand is originated from an award passed by Motor Accident Claims Tribunal, Palakkad (for short ‘the Tribunal’) on 23.09.2017 in O.P.(M.V.) No.542/2015. The appellants are the petitioners before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondent No.3 in accordance with their status in the Original Petition. 3. The Tribunal has passed the impugned award for a sum of ₹11,15,000/- and directed the 3[rd] respondent to pay it in favour of the petitioners alongwith interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of deposit and proportionate costs. In the above Original ``` M.A.C.A.No.3491 of 2019 ``` ``` 3 ``` Petition a sum of ₹25,00,000/was claimed as compensation for the death of one Mr.Jabbar in a motor accident who was aged 23 years at the relevant time. 4. As per the averments in the Original Petition, the motor accident was occurred at 9 p.m. on 21.11.2013 when a Lorry bearing Registration No. KL 17C-592 hit on a Motorcycle ridden by Mr.Jabbar from Kambrathuchalla to Pothanpadam. He sustained serious injuries and was immediately taken to Aabind Hospital, Kollengode. He was referred therefrom to District Hospital, Palakkad, where he was declared dead. The motor accident was allegedly occurred due to the rash and negligent driving of the Lorry by the 2[nd] respondent. The registered owner and the insurer of the Lorry were also arrayed as respondents 1 and 3 in the Original Petition. ``` M.A.C.A.No.3491 of 2019 ``` ``` 4 ``` 5. Respondents were served with notice and all of them entered appearance and filed written statement. 3[rd] respondent in it’s written statement admitted insurance coverage of the Lorry bearing Registration No.KL-17C-592 at the relevant time of the motor accident but denied all other averments of the petitioners in the Original Petition. Compensation claimed was also disputed for it’s exorbitant nature and lack of basis. 6. Before the Tribunal, petitioners marked Exts.A1 to A14 in evidence. Respondents did not adduce any evidence. Based on the above evidence, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the Lorry by the 2[nd] respondent. A sum of ₹11,15,000/- was also arrived at as the total compensation payable to the petitioners. The 3[rd] ``` M.A.C.A.No.3491 of 2019 ``` ``` 5 ``` respondent/insurer was directed to deposit the sum arrived at with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of deposit alongwith proportionate costs. 7. The prime contention raised by the learned counsel for the petitioners was that the monthly income of the deceased fixed as ₹6,000/-notionally, is too low. In the FIS marked in evidence as Ext.A1, the brother of the deceased who had lodged it has stated that the deceased was engaged in the manufacture of hollow bricks. According to him, Ext.A14 was also produced, where the monthly wages of the victim was certified by his employer as ₹15,000/-. According to him, the evidence adduced as above were discarded by the Tribunal while fixing the monthly income and therefore, is unjustified. It was urged by the learned counsel that the parents of the deceased are entitled ``` M.A.C.A.No.3491 of 2019 ``` ``` 6 ``` to get compensation towards loss of consortium but the Tribunal failed to award it. The learned counsel contended furthermore that the sums stood awarded by the Tribunal as compensation under various other heads are also inadequate and disproportionate to the injuries sustained and therefore, interference is inevitable. 8. The learned counsel for the 3[rd] respondent contended on the contrary that compensation was awarded under several heads without considering their entitlement for the same. The learned counsel pointed out further that ₹25,000/- each stood awarded by the Tribunal as compensation towards funeral expenses and loss of estate are over and above the sums for which petitioners are entitled to. The Tribunal has also awarded ₹75,000/- as compensation towards loss of love and affection in favour of petitioners 1 to ``` M.A.C.A.No.3491 of 2019 ``` ``` 7 ``` 3, which they are not entitled to. Being parents of the deceased, petitioners 1 and 2 are entitled to get a sum of `44,000/- each as compensation towards loss of consortium. According to the learned counsel, the Tribunal went wrong in awarding compensation towards loss of love and affection in favour of petitioners 1 and 2. The learned counsel pointed out furthermore that the petitioners are not entitled to get compensation towards pain and suffering. 9. According to the learned counsel, the Tribunal fixed the monthly income on a notional basis, in the absence of any reliable evidence to establish the same. According to him, the Tribunal is justified in fixing `6,000/- as the monthly income. 10. It is noticed from the impugned award that ₹25,000/- each was awarded as compensation towards funeral expenses and loss of estate. As per ``` M.A.C.A.No.3491 of 2019 ``` ``` 8 ``` the guidelines of the Constitution Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)],** petitioners are entitled only to get ₹16,500/- each as compensation under the above heads. Therefore, the Tribunal has awarded an excess sum of ₹8,500/- under each of those heads and therefore are liable to be deducted from the total additional compensation that would be arrived at in the appeal on hand. It is also found that the Tribunal has awarded ₹50,000/- (in favour of petitioners 1 and 2) and ₹15,000/respectively as compensation towards loss of love and affection and pain and suffering. It is settled that petitioners are not entitled to get compensation towards pain and suffering and petitioners 1 and 2 are not entitled to get any compensation under the head loss of love and affection. Therefore, ₹15,000/- and ``` M.A.C.A.No.3491 of 2019 ``` ``` 9 ``` ₹50,000/- stood awarded by the Tribunal respectively under those heads are also liable to be deducted from the total additional compensation that would be arrived at in the appeal on hand. 11. 3[rd] petitioner in the Original Petition was the only sibling of the deceased and therefore, ₹25,000/stood awarded by the Tribunal as compensation towards loss of love and affection in his favour is maintained. 12. Petitioners 1 and 2, being the parents of the deceased are entitled to get ₹44,000/- each as compensation towards loss of consortium and thus ₹88,000/- (₹44,000/- x 2) is arrived at. 13. The monthly income was fixed by the Tribunal as ₹6,000/- which in the view of this Court is too low. Statement given by the first informant while lodging Ext.A1 cannot be treated as evidence. Ext.A14 was ``` M.A.C.A.No.3491 of 2019 ``` ``` 10 ``` issued by the Secretary of Bhadariyya Juma Masjid Committee, Muthalamada. In the Original Petition, ₹25,000/- was claimed as the monthly income of the deceased. But in Ext.A14, the monthly income was certified as ₹15,000/-. Though the petitioners claimed that the victim of the motor accident has an employer, Ext.A14 was not proved through him. Moreover, the monthly income claimed by the petitioners in the Original Petition as well as that certified in Ext.A14 also differ. For starting a manufacturing unit of hollow bricks, license is mandatory to be obtained from an appropriate authority. Unfortunately that was not obtained, produced and marked in evidence. In above circumstances, the victim of the motor accident was not considered as a worker engaged in manufacturing hollow bricks under the alleged employer. ``` M.A.C.A.No.3491 of 2019 ``` ``` 11 ``` 14. Nevertheless, the monthly income fixed as ₹6,000/- being too meagre, when viewed in the backdrop of the year of motor accident as 2013, this Court is inclined to fix ₹10,000/- as his monthly income. The Tribunal has added 50% to the monthly income in consideration of loss of future prospects. As per the guidelines in **Pranay Sethi** (supra) only 40% is liable to be added. When 40% is added to the monthly income in consideration of loss of future prospects ₹14,000/- (₹10,000/- + 40% of ₹10,000/-) is arrived at. The multiplier of ‘18’ adopted by the Tribunal being correct for the age of a victim of 23 years, is maintained. When compensation for loss of dependency is calculated afresh with the factors modified as above, ₹15,12,000/- (₹14,000/- x 12 x 18 x ½) is arrived at. ₹9,72,000/- already awarded by the Tribunal as compensation, when adjusted against ``` M.A.C.A.No.3491 of 2019 ``` ``` 12 ``` the sum now arrived at, petitioners will get ₹5,40,000/- (₹15,12,000/- - ₹9,72,000/-) as additional compensation under that head. ₹25,000/- each stood awarded by the Tribunal as compensation towards loss of love and affection in favour of petitioners 1 & 2 and ₹15,000/-, as compensation towards pain and suffering, when deducted, ₹5,46,000/- [(₹5,40,000/+ ₹88,000/-) - (₹15,000/-+ ₹8,500/- + ₹8500/- + ₹50,000/-)] (Rupees five lakhs forty six thousand only) is arrived at as the additional compensation payable in favour of the petitioners. 15. 3[rd] respondent being the insurer shall deposit the additional compensation arrived at as above, with interest fixed at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation, excluding 610 days, being the delay occurred in filing the appeal on hand. 3[rd] respondent ``` M.A.C.A.No.3491 of 2019 ``` ``` 13 ``` shall pay the compensation in favour of the petitioners within two months from the date on which a certified copy of this judgment is received. The disbursal of the amount shall be in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. The apportionment of additional compensation shall also be in accordance with the direction of the Tribunal in the award under challenge. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NAB