Kunhabdulla and Jameela v. Oriental Insurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945 ``` ``` MACA NO. 1100 OF 2017 ``` ``` AGAINST THE AWARD DATED 27.09.2016 IN OP(MV) 735/2012 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, VATAKARA`** ## **`APPELLANTS/PETITIONERS:`** ``` 1KUNHABDULLA AGED 62 YEARS,S/O ABOOTTY, 2JAMEELA W/O KUNHABDULLA, AGED 49 YEARS (BOTH ARE RESIDING AT KINATUNKARA PADIKASALA VALAP, VATAKARA BEACH P.O. VATAKARA TALUK, KOZHIKODE DIST-673 103) BY ADVS. SRI.ZUBAIR PULIKKOOL SRI.K.LAL MOHAN ``` ## **`RESPONDENT/RESPONDENT:`** ``` THE ORIENTAL INSURANCE COMPANY LTD. DO MANJERI, JASEELA COMPLEX, BYPASS JN. NILAMBOOR ROAD, MANJERI, KERALA - 676 121 ``` ``` BY ADV SC -A.R.GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1100 OF 2017 ``` ``` 2 ``` ## **`JUDGMENT`** The appellants are the petitioners in O.P.(M.V.) No.735/2012 on the files of the Motor Accident Claims Tribunal, Vatakara. 2. The said claim petition was submitted by them seeking compensation for the death of one Shaheer in a motor accident that occurred on 04.11.2011. According to them, the accident occurred when the deceased was travelling on a motorcycle bearing Registration No.KL 11 L 6353, it was hit by an ambulance bearing Registration No.KL 18 C 1790, thereby, he sustained serious injuries. The said ambulance was being driven by the 2[nd] respondent in the claim petition and was owned by the 1[st] respondent therein. The said vehicle was insured with the respondent herein, the 3[rd] respondent in the claim petition. Even though the deceased was immediately taken to hospital, he succumbed to injuries on 14.11.2011, while he was undergoing treatment at Baby Memorial Hospital, Kozhikode. According to the appellants, the deceased was a contractor with BSNL with a monthly income of Rs.15,000/- and he was aged 24 years at the time of the accident. The claim petition ``` MACA NO. 1100 OF 2017 ``` ``` 3 ``` was submitted in such circumstances seeking compensation. 3. The respondent Insurance Company alone contested the matter by filing a written statement, wherein they admitted the policy but disputed the liability on various grounds. They also disputed the negligence and quantum of compensation. 4. The evidence in this case consists of Exts.A1 to A7 and from the side of the petitioners, and no evidence was adduced from the side of the respondents. After examining the materials placed on record, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the driver of the ambulance and being the insurer of the said vehicle, the respondent herein was held liable to pay the compensation. The amount of compensation was fixed as Rs.11,12,118/- which was rounded as Rs.11,12,120/-, and the respondent herein was directed to deposit the said amount along with interest @ 9% annum. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri. Zubair Pulikool, learned counsel appearing ``` MACA NO. 1100 OF 2017 ``` ``` 4 ``` for the appellants and Sri.A.R. George, learned counsel appearing for the respondent Insurance Company. 6. The learned counsel for the respondent Insurance Company raised a preliminary objection as to the maintainability of this appeal. It was mainly on the ground that, after the filing of this appeal, M.A.C.A. No.558/2019 was filed by the very same appellants challenging the very same award. However, later, the same was withdrawn by the appellants, and accordingly, it was dismissed as withdrawn on 04.07.2022. The learned counsel for the respondent would submit that as per Order XXIII Rule 1 of CPC, as the appellants did not obtain leave from the court to pursue this appeal while seeking withdrawal of M.A.C.A. No.558/2019, the appeal cannot be entertained. However, after considering the relevant aspects, I am of the view that Order XXIII Rule 1 cannot be made applicable to the proceedings of this appeal. This is mainly because that provision deals with the proceedings to pursue the remedy in subsequent proceedings, whereas in this case, even at the time of filing M.A.C.A. No.558/2019, this appeal was already ``` MACA NO. 1100 OF 2017 ``` ``` 5 ``` pending. According to the learned counsel for the appellants, the said appeal was mistakenly filed and immediately on realising the mistake, this appeal was withdrawn. Therefore, since what is covered by the said provision is subsequent proceedings and the present appeal was already filed and pending before this Court, the withdrawal of the subsequent appeal cannot be taken as a ground against the maintainability of this appeal. 7. There is yet another aspect. What is under challenge is an award passed under Section 166 of the Motor Vehicles Act, and the said provision is part of welfare legislation. The Tribunal, as well as this Court, has an obligation to ensure that just compensation has been received by the victim of the accident. This is a case in which the claim was put forward by the appellants for the death of their only son at the age of 24 years in a motor accident. On perusal of the amount awarded by the Tribunal, I am convinced that the amount requires reconsideration, as the amount mentioned in the award does not represent the just compensation. Therefore, on that ground also, I find that the appeal has to be ``` MACA NO. 1100 OF 2017 ``` ``` 6 ``` entertained to ensure just compensation to the victim. The technicalities shall not stand in the way of this Court while considering such claims. In such circumstances, the question raised by the learned counsel for the respondent in this regard is found against them. 8. When moving on to the quantum of compensation, the main contest of the learned counsel for the appellants is that, the amounts awarded under various heads, particularly the amount under the head of loss of dependency, were extremely on the lower side. It was pointed out that even though a monthly income of Rs.15,000/- was claimed based on Ext.A5 certificate issued by BSNL, Chombala, the Tribunal did not consider the same and has taken Rs.5,000/- as the monthly income. In the facts and circumstances of the case, I find that the same is grossly inadequate. As per the method of computation of monthly income evolved from the principles laid down by the Hon’ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v.** ``` MACA NO. 1100 OF 2017 ``` ``` 7 ``` ## **Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] the monthly income of an ordinary employee even in the absence of any evidence has to be fixed Rs.4,500/- in respect of an accident occurred in the year 2004. For the subsequent years, an addition has to be made @ Rs.500/- per year. When adopting such a method of computation, which is reasonable and logical, the compensation of an ordinary employee, even in the absence of evidence, has to be taken as Rs.8,000/- in respect of an accident that occurred in the year 2011. However, in this case, it is evident that the deceased was working as a contractor, and the Ext.A5 certificate was produced before the Tribunal. Even though the Tribunal did not doubt the genuineness, it was not accepted because of the reason that it was a contract employment, which was supposed to end at the completion of the tenure mentioned therein. Since the genuineness of Ext.A5 is not in doubt, I am of the view that some relevance has to be given to the figure mentioned therein. Of course, the fact that it was based on a contract for a limited period is also to be taken into consideration. However, even when ``` MACA NO. 1100 OF 2017 ``` ``` 8 ``` considering the aforesaid aspect, the income to be determined has to be higher than the amount calculated as per the principles laid down in **Ramachandrappa’s and Syed Sadiq’s** cases. Thus, in the facts and circumstances of the case, I deem it appropriate to fix it as Rs.10,000/-. As the deceased was aged 24 years, an addition of 40 % has to be made towards future prospects and since he was a bachelor, a deduction of 50% is to be made towards the personal expenses. While reassessing the compensation with the above criteria, the amount would come to Rs.15,12,000/-([ (10000 + 40%) x 12 x 18 x1/2]. The amount already awarded by the Tribunal under this head is Rs.8,10,000/- and therefore, the additional amount under this head would come to Rs.7,02,000/- 9. The learned counsel for the respondent at this juncture would point out that the amount awarded under the head of funeral expenses and pain and suffering were on the higher side and no amount should have been granted for loss of love and affection. When considering the aforesaid contentions in the light of the principles laid down in **National Insurance Company Ltd. v. Pranay Sethi** ``` MACA NO. 1100 OF 2017 ``` ``` 9 ``` [(2017) 16 SCC 680], **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [ 2020 (3) KHC 760], and **New India Assurance Company Ltd. v. Somwati & Ors.** [(2020) 9 SCC 644], I find some force. As far as the funeral expenses are concerned, the actual amount payable is Rs.15,000/-, whereas the amount awarded is Rs 25,000/-. Therefore, Rs.10,000/is excess, and the same is ordered to be reduced. Similarly, regarding pain and suffering, the amount awarded is Rs.40,000/which appears to be on the higher side. Of course, it is true that the deceased died after hospitalization for ten days. Therefore, a nominal amount has to be granted, and it is fixed as Rs.10,000/-. Such an assessment would result in an excess compensation of Rs.30,000/- under the said head, and the same has to be deducted. Similarly, towards loss of love and affection, the Tribunal granted an amount of Rs.50,000/-. However, as per the principle’s laid down in **Satinder Kaur’** s case and **Somwati’s case** , the compensation to be paid to the parents on the death of their child is under the head of loss of consortium, which is at the rate of ``` MACA NO. 1100 OF 2017 ``` ``` 10 ``` Rs.40,000/- each. It is also a well-settled position that when the compensation for loss of consortium is awarded, no separate compensation needs to be granted for loss of love and affection. Therefore, while awarding compensation under the head of loss of consortium as Rs.80,000/- (4000 x 2), I deem it appropriate to adjust Rs.50,000/- already granted under the head of loss of love and affection with the said amount. Thus, the additional compensation would come to Rs.30,000/-. 10. The amount awarded under the head of loss of estate is only Rs.5,000/- and in the light of the principles laid down in **Pranay Sethi’s** case, it has to be enhanced by a further sum of Rs.10,000/-. 11. Thus, while reassessing the compensation in the light of the above observation, the additional amount receivable by the appellants would come to Rs.7,02,000/- [(7,02,000 + 30,000 + 10,000) – (10,000 + 30,000)]. Thus, in the light of the aforesaid observations and findings, this appeal is allowed. The award dated 27.09.2016 in O.P.(M.V.) ``` MACA NO. 1100 OF 2017 ``` ``` 11 ``` No.735/2012 is modified by granting an additional compensation of Rs.7,02,000/- (Rupees seven lakhs and two thousand only), which shall be deposited by the respondent Insurance Company along with interest @ 8% per annum from the date of petition till realisation within a period of three months from the date of receipt of a copy of this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs