Kochu Pathumma and others v. The Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 9[TH] DAY OF JANUARY 2024 / 19TH POUSHA, 1945** ## **MACA NO. 1034 OF 2012** **AGAINST THE ORDER/JUDGMENT OPMV 1629/2008 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONERS:** 1 KOCHU PATHUMMA AGED 76 YEARS WIFE OF LATE SRI KUNJUMEETHEEN, RESIDING AT VELEEPARAMBIL HOUSE, EDAKOCHI P.O., EDAKOCHI VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. 2 SAINULABIDEEN V.K. AGED 20 YEARS S/O LATE V.K. KABEER, RESIDING AT VELEEPARAMBIL HOUSE, EDAKOCHI P.O., EDAKOCHI VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. 3 SHABINA V.K MINOR AGED 16 YEARS D/O LATE V.K. KABEER, RESIDING AT VELEEPARAMBIL HOUSE, EDAKOCHI P.O., EDAKOCHI VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. 3RD APPELLANT IS REPRESENTED BY THEIR GRAND-MOTHER 1ST APPELLANT AS NEXT FRIEND AND NATURAL GUARDIAN. BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.K.N.RAJANI SRI.J.VIVEK GEORGE ## **RESPONDENTS/RESPONDENTS:** 1 C.E.PREETH S/O EBRAHIM, CHENATHU HOUSE, PETTA, MUVATTUPUZHA, PIN 686 661. 2 SHAJIMON XAVIER S/O XAVIER, AZHIMUGHAM VEEDU, PANDIPPARA P.O., M.A.C.A No. 1034 of 2012 **==> picture [7 x 9] intentionally omitted <==** IDUKKI DISTRICT, PIN:685 515. 3 THE ORIENTAL INSURANCE COMPANY LIMITED REGIONAL OFFICE, ERNAKULAM, COCHIN-682 018. BY ADV SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No. 1034 of 2012 3 ## **JUDGMENT** The appellants were the claimants in O.P.(M.V) No. 1629/2008 on the files of the Motor Accidents Claims Tribunal, Ernakulam. The said claim petition was submitted by the appellants seeking compensation for the death of one 'Kabeer' due to the injuries sustained in a motor accident that occurred on 22.01.2008. 2. The accident occurred when the motorcycle ridden by the deceased hit against a lorry bearing registration No.KL/16B -8011 parked on the National Highway at Eramalloor without any park light. The 1[st] appellant is the mother and the appellants 2 and 3 are the children of the deceased. The deceased was aged 45 years at the time of the accident and he was working as a purchasing agent of marine foods in M/s Orchid Marine, Chandiroor with a monthly income of Rs.6,500/-. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent, the insurer of the lorry alone contested the matter, wherein they admitted the coverage of policy. However, they disputed the negligence as well as the M.A.C.A No. 1034 of 2012 4 quantum of compensation. It was also contended that the deceased was riding the motorcycle without any valid driving licence and the accident occurred due to the negligence of the deceased himself. 4. The evidence, in this case, consists of Exts.A1 to A11 from the side of the appellants, and from the side of the respondents, no evidence was adduced. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the driver of the lorry as well as the deceased. The contribution of the deceased in causing the accident was fixed as 25%. The quantum of compensation was determined as Rs.4,44,000/- and Rs.3,33,000/-, being 75% of the compensation was directed to be deposited by the 3rd respondent/insurance company with interest at the rate of 8% per annum from the date of petition till realisation. This appeal is submitted in such circumstances challenging the finding of negligence and also seeking enhancement of compensation. 5. Heard Smt.Rajani K.N, the learned counsel appearing for the appellants and Sri.A.R.George, the learned counsel appearing for the 3rd respondent/insurance company. M.A.C.A No. 1034 of 2012 5 6. The first question to be considered is regarding contributory negligence. It is evident from the records that the accident occurred when the motorcycle ridden by the deceased hit against a lorry parked on the road. Of course, it is true that the Police submitted a final report, which is marked as Ext. A10 implicating the driver of the lorry as the accused. However, after appreciating the evidence on record, the Tribunal attributed 25% contributory negligence to the deceased. In the award, a detailed description has been made by the Tribunal, with respect to the contents of the final report and the scene mahazar from which the spot of the accident is revealed. Since it is a case in which the motorcycle hit a parked lorry, the spot of the accident, as is revealed from the scene mahazar, is very much relevant. The Tribunal took note of the fact that, from the spot of the accident, there was a 5.85-meter space between the center median and the right side body of the lorry. Thus, ample space was provided by the lorry when it was parked on the road. It was in those circumstances that the Tribunal found 25% of contributory negligence on the part of the deceased. On carefully going through the aforesaid aspects, I am of the view that the finding of M.A.C.A No. 1034 of 2012 6 25% contributory negligence on the part of the deceased is a probable one. Therefore, I do not find any justification to interfere with the same. 7. The next aspect relates to the quantum of compensation. The learned counsel for the appellants contends that the monthly income taken by the Tribunal for assessing the compensation was very meager. On perusal of the records, I find force in the said contention. It is to be noted that even though a monthly income of Rs.6,500/- was claimed by the appellants, which the deceased was earning from his employment as a purchasing agent in a Marine Foods Company, the Tribunal took the monthly income as only 3,500/-. it is to be noted that the accident occurred in the year 2008. When the method of computation of monthly income evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** and **Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd. [2014 (2) SCC 735]** is taken into consideration, the monthly income of an ordinary employee even in the absence of any evidence could be M.A.C.A No. 1034 of 2012 7 taken as Rs.4,500/- in respect of an accident occurred in the year 2004. The usual method that is adopted for assessing the monthly income for the subsequent years is to add Rs.500/- per year. When such a method of computation is adopted, the monthly income in respect of an accident that occurred in the year 2008 has to be fixed as Rs.6,500/- even in the absence of any evidence. Therefore the monthly income of Rs.6,500/- claimed by the appellants appears to be a reasonable amount as the accident occurred in the year 2008. Therefore, the said monthly income is accepted. 8. The Tribunal did not make any additions towards future prospects. Whereas in the light of **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** , 25% of the monthly income has to be added for the said purpose, as he was aged 45 years. Similarly, as the deceased left behind three dependents, the deduction to be made towards personal expenses should have been 1/3 and not ¼ as done by the Tribunal. Similarly, the multiplier adopted by the Tribunal was '13', which is also not correct as he was 45 years old; the proper multiplier should have been '14'. M.A.C.A No. 1034 of 2012 **==> picture [7 x 9] intentionally omitted <==** 9. Thus, while reassessing the compensation with the revised criteria, the amount to be awarded for loss of dependency would come to Rs.9,10,000/- [(6,500 + 25%) x 12 x 14 x 2/3]. The amount already awarded by the Tribunal under this head is Rs.4,09,500/- and thus, the additional amount would come to Rs.5,00,500/. 10. The Tribunal did not award any compensation for loss of consortium, and instead, only Rs.20,000/- was granted towards loss of love and affection. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram & Others [2018 (3) KLT Online 3095 (SC)]** and **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780],** the appellants being the mother and the children of the deceased are entitled for compensation under this head at the rate of Rs.40,000/- each, thereby making a total compensation of Rs.1,20,000/-. However, it was held in **Satinder Kaur (supra)** , that, when compensation for loss of consortium is awarded, no separate compensation needs to be granted for loss of love and affection. Hence, Rs.20,000/- granted for loss of love and affection is to be adjusted against the amount awarded for loss consortium. M.A.C.A No. 1034 of 2012 **==> picture [7 x 9] intentionally omitted <==** Thus, the additional amount for the loss of consortium would come to Rs.100,000/-. 11. The amount awarded by the Tribunal towards loss of estate was Rs.2,500/- only and in the light of **Pranay Sethi (supra)** , a further sum of Rs. 12,500/- is granted. Similarly, the amount awarded towards funeral expenses was Rs.5000/- only and in the light of **Pranay Sethi (supra)** , a further sum of Rs.10,000/- is awarded. Thus, the total additional compensation receivable by the appellants is determined as Rs.6,23,000/(5,00,500 + 100,000 + 10,000 + 12,500). In the light of the aforesaid findings and observations, this appeal is allowed with the following orders. i) The finding of the Tribunal attributing 25% of contributory negligence upon the deceased is confirmed. ii) The quantum of compensation is revised by granting a further amount of Rs.6,23,000/- (Rupees six lakhs twenty-three thousand only). Out of the said amount, the 3rd respondent, being the insurer of the lorry, shall be liable to deposit Rs.4,67,250/being 75 % of the additional compensation, with interest at the rate as ordered by the Tribunal and proportionate costs within a M.A.C.A No. 1034 of 2012 **==> picture [13 x 9] intentionally omitted <==** period of three months from the date of receipt of a copy this judgment. However, it is clarified that, as the appeal was filed with a petition to condone the delay of 155 days in filing the appeal, the appellants shall not be entitled to claim interest for the additional amount pertaining to the said period of delay. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk