Kozhissery Moyinkutty and Others v Muhammed N and Ummer Mecheri and Oriental Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 14TH DAY OF MARCH 2018 / 23RD PHALGUNA, 1939** **MACA.No. 437 of 2016** **AGAINST THE AWARD DATED 23-12-2015 IN OP(MV) NO. 298/2011 of ADDL. M.A.C.T., MANJERI** ## **APPELLANTS/CLAIMANTS:** **----------------------** - **1 KOZHISSERY MOYINKUTTY,** - **S/O.ALIKKUTTY, KOZHISSERY HOUSE, THERATTAMMAL,** - **URNGATTIRI AMSOM, P.O.URNGATTIRI, AREACODE VIA, MALAPPURAM DISTRICT.** - **2 MAMMADIYA,** - **W/O.MOYINKUTTY, KOZHISSERY HOUSE, THERATTAMMAL,** - **URNGATTIRI AMSOM, P.O.URNGATTIRI, AREACODE VIA, MALAPPURAM DISTRICT.** - **3 SUBAIR,** - **S/O.MOINKUTTY, KOZHISSERY HOUSE, THERATTAMMAL,** - **URNGATTIRI AMSOM, P.O.URNGATTIRI, AREACODE VIA, MALAPPURAM DISTRICT.** - **4 MUBEENA,** - **D/O.MOYINKUTTY, KOZHISSERY HOUSE, THERATTAMMAL,** - **URNGATTIRI AMSOM, P.O.URNGATTIRI, AREACODE VIA, MALAPPURAM DISTRICT.** - **5 SHAREEF,** - **S/O.MOYINKUTTY, KOZHISSERY HOUSE, THERATTAMMAL,** - **URNGATTIRI AMSOM, P.O.URNGATTIRI, AREACODE VIA, MALAPPURAM DISTRICT** **BY ADVS.SRI.T.K.AJITH KUMAR SRI.P.VINODKUMAR** ## **RESPONDENT(S)/RESPONDENTS:** **1. MUHAMMED N,** - **S/O.ABDULLA, MANNILE PARAMBA, CHEMBRAKATTOOR,** - **P.O.MADHAKODE, AREACODE VIA, MALAPPURAM DISTRICT (DRIVER)-676 505.** **2. UMMER MECHERI,** - **MECHERI HOUSE, KAVANOOR P.O., KAVANOOR AMSOM DESOM, ERNAD TALUK, MALAPPURAM DISTRICT (OWNER)-676505.** **3. ORIENTAL INSURANCE CO.LTD., JASEELA COMPLEX, BYE PASS JUNCTION, NILAMBUR ROAD, MANJERI AMSOM, P.O.MANJERI, MALAPPURAM DISTRICT (INSURER)-676121.** - **R3 BY ADVS. SRI.M.JACOB MURICKAN** - **SRI.JOHN DANIEL (OLAPPURA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = =** ## **M.A.C.A.No.437 of 2016(B)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 14[th] day of March, 2018_ ## **J U D G M E N T** The appellants are the petitioners in O.P. (M.V.) No.298 of 2011 of the Additional Motor Accident Claims Tribunal, Mancheri. They are the legal representatives of the deceased Mohammed Faizal, who died in a road traffic accident. The aforesaid original petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the loss caused by the death of the said Mohammed Faizal. According to the appellants, on 4.5.2009 at about 10 a.m., while the deceased was riding a motor cycle, the offending tipper lorry driven by the first respondent in a rash and negligent manner came with high speed and hit the motor cycle, causing grievous bodily injuries to the deceased Mohammed Faizal. Subsequently, he **M.A.C.A.No.437 of 2016(B)** ## **-: 2 :-** succumbed to his injuries while undergoing a treatment in the hospital. 2. The 3[rd] respondent Insurance Company opposed the said application, disputing the quantum of compensation and the cause of accident; but admitted the coverage of insurance policy at the time of accident. 3. After considering the rival contentions in view of the evidence on record, the Tribunal passed the impugned award granting an amount of `5,92,500/-, though the appellants have claimed `9,00,000/-. This appeal is filed assailing the determination of contributory negligence at 20% on the deceased and the quantum of compensation determined under various heads of claim. 4. Heard the learned counsel for the appellants and the learned standing counsel appearing for the 3[rd] respondent. **M.A.C.A.No.437 of 2016(B)** ## **-: 3 :-** 5. It is contended by the learned counsel for the appellant that the Tribunal went wrong by assessing the contributory negligence on the deceased at 20%, without any reasoning. According to the learned counsel, Exts.A1 to A3 would show that the accident was caused by the rash and negligent driving of the offending tipper lorry, by the 1[st] respondent. Further, it is contended that the Tribunal went wrong by omitting to grant compensation for 'loss of estate'. 6. On the other hand, the learned counsel for the 3[rd] respondent advanced arguments to justify the quantum of compensation and the determination of contributory negligence found by the Tribunal. Further, the learned standing counsel pointed out that the Tribunal ought to have granted `25,000/only for 'funeral expenses'. The point to be considered is, whether the compensation granted by **M.A.C.A.No.437 of 2016(B)** ## **-: 4 :-** the Tribunal is just and fair, in view of the evidence on record? 7. As rightly contended by the learned counsel for the appellant, going by paragraph 06 of the impugned award, it is seen that the Tribunal has assessed contributory negligence at 20% on the deceased without any reasoning. On the other hand, Ext.A1 First Information Report and Ext.A3 final report would show that the accident was caused by the rash and negligent driving of the offending tipper lorry by the 1[st] respondent only. So, the Tribunal is not justified in applying the principles of contributory negligence on the deceased also. Consequently, the findings whereby the Tribunal fixed contributory negligence on the part of the deceased at 20% would stand set aside. 8. The next point to be considered is, whether the Tribunal is justified in omitting to **M.A.C.A.No.437 of 2016(B)** ## **-: 5 :-** consider the claim under the heads 'loss of estate' and 'pain and sufferings'. It is not disputed that the deceased Mohammed Faizal was aged 18 years only at the time of his death and the appellants are the father, mother and siblings of the deceased, three in numbers. In view of the above fact, the Tribunal is not justified in rejecting the claim for 'loss of estate'. In the light of the decision reported in _**National Insurance Company Limited v. Pranay Sethi and Others**_ [2017(5) KHC 350 (SC)], the appellants are given `15,000/- towards 'loss of estate'. 9. It is true that the said Mohammed Faizal died on the date of accident itself, while he was undergoing treatment in the hospital. This Court is of the view that the compensation for 'pain and sufferings' cannot be rejected totally, on the ground that the said Mohammed Faizal died on the same day itself. If he has suffered pain for hours ## **M.A.C.A.No.437 of 2016(B)** ## **-: 6 :-** only, certainly, compensation could have been granted for 'pain and sufferings', though it was for a short period. Certainly, the quantum of compensation under the head 'pain and sufferings' would depend upon the duration of time between the accident and the death. Consequently, the appellants are given `10,000/- towards 'pain and sufferings'. 10. The learned standing counsel for the 3[rd] respondent contended that the quantum of compensation granted under the head 'funeral expense' is exorbitant and was against the maximum amount fixed by the Supreme Court in _**Pranay Sethi** 's_ case (supra). As rightly pointed out the learned counsel for the 3[rd] respondent, in view of the decision in _**Pranay Sethi** 's_ case (supra), the quantum of compensation granted under the head 'funeral expense' will stand reduced to `15,000/-. ## **M.A.C.A.No.437 of 2016(B)** ## **-: 7 :-** 11. It is further submitted by the learned counsel for the appellant that the quantum of compensation determined under the head 'loss of love and affection' is too low. As rightly pointed out by the learned counsel for the appellant that the Tribunal has granted `25,000/- only to the appellants, who are five in numbers under the head 'loss of love and affection'. Having regard to the number of legal representatives, who are the dependants of the deceased, the amount granted as compensation under the head 'loss of love and affection' would stand increased to `50,000/-. The total additional compensation granted in this appeal is `40,000/- [15,000 + 10,000 + 25,000 -10,000]. I have already set aside the contributory negligence at 20% found against the deceased. So, the total compensation payable to the appellant is `6,32,500/[5,92,500 + 40,000]. It is needless to say, the **M.A.C.A.No.437 of 2016(B)** ## **-: 8 :-** total compensation would carry interest, as stipulated by the Tribunal. The remaining portion of the impugned award would stand undisturbed and operative. The 3[rd] respondent Insurance Company is directed to deposit the said additional compensation with `1,18,500/- [5,92,500 - 4,74,000] also within three months from today and the appellants 1 and 2 are allowed to withdraw the aforesaid amount equally. This Motor Accident Claims Appeal is allowed accordingly to the above extent. Sd/- **K. HARILAL, JUDGE** DST //True copy// P.A. To Judge