Kunhimuhammed, Pathumma, Ashitha K.V. and Muhammed Askar K.V. v. The Manager, Royal Sundaram Alliance Insurance Co. Ltd. (and others)

``` MACA NO. 1346 OF 2013 ``` 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945 ``` ## **`MACA NO. 1346 OF 2013`** ``` AGAINST THE AWARD DATED 18.02.2013 IN OP(MV)NO.425/2011 OF ``` ## **`MOTOR ACCIDENT CLAIMS TRIBUNAL,KALPETTA`** ## **`APPELLANTS/PETITIONERSS:`** ``` 1KUNHIMUHAMMED, AGED 53 YEARS (FATHER OF THE DECEASED ASIF K.V.) 2PATHUMMA, AGED 52 YEARS (MOTHER OF THE DECEASED ASIF K.V.) 3ASHITHA K.V., AGED 25 YEARS SISTER OF THE DECEASED ASIF K.V. 4MUHAMMED ASKAR K.V. S/O.KUNHIMUHAMMED, BROTHER OF THE DECEASED ASIF K.V., (ALL ARE RESIDING AT KOORIMANNIL VILANGAPURAM HOUSE, MANDAD POST, KUTTAMANGALAM, VYTHIRI TALUK. ``` ``` BY ADV SMT.CELINE JOSEPH ``` ## **`RESPONDENT/RESPONDENT NO.3:`** ``` THE MANAGER ``` ``` ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD., R.V.TRADE CENTRE, IIIRD FLOOR, PATTURAIKAL JUNCTION, NEAR KARTHIEEYANI NURSING HOME, THRISSUR-680020. ``` ## `SRI.P.JACOB MATHEW` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1346 OF 2013 ``` 2 ## ZIYAD RAHMAN, A.A, J ## M.A.C.A No. 1346 of 2013 th Dated this the 29 day of January, 2024 ## JUDGMENT The appellants are the petitioners in OP(MV)No.425/2011 on the files of the Motor Accidents Claims Tribunal, Kalpetta. 2. The said claim petition was submitted by the appellants seeking compensation for the death of one Asif, due to the injuries sustained in a motor accident that occurred on 24.09.2011. According to the appellants, the accident occurred when the pickup lorry driven by the deceased was hit by another lorry bearing registration No.KL-10R/9421 driven by the first respondent in the claim petition in a rash and negligent manner. The second respondent in the claim petition was its owner and it was insured with the third respondent/Insurance Company. According to the appellants, the deceased was aged 25 years at the time of the accident and was a heavy vehicle driver with a monthly income of Rs.16,000/-. The first and second appellants are the parents of the deceased and the third and fourth appellants are the siblings of the deceased. The ``` MACA NO. 1346 OF 2013 ``` 3 ## claim petition was submitted in such circumstances. 3. The first and second respondents in the claim petition filed written statements denying negligence on the part of the first respondent. However, they admitted their respective capacities as driver and owner of the said vehicle. They also contended that the vehicle was validly insured with the third respondent. 4. The third respondent filed a written statement contending that the vehicle was being used without a valid fitness certificate and the police charge-sheeted under Section 56 read with Section 192 of the Motor Vehicles Act for the same. They also disputed the quantum of compensation seriously, even though the existence of a valid policy for the vehicle was admitted. 5. The evidence in this case consists of oral testimony of PW1 and as documentary evidence, Exts.A1 to A10 were marked from the side of the appellants. No evidence was adduced from the side of the respondents. 6. After the trial, the Tribunal came to the conclusion ``` MACA NO. 1346 OF 2013 ``` 4 that the accident occurred due to negligence on the part of the first respondent in the claim petition, in driving the lorry. It was also found that there was a violation of policy conditions since the vehicle was being plied without any valid permit. Therefore, the primary liability to pay compensation was imposed on the third respondent and they were granted the right to recover the said compensation from the first respondent in the claim petition. The quantum of compensation was fixed as Rs.5,31,000/- (Rupees Five Lakhs Thirty-one Thousand only), and the respondent herein was directed to deposit the said amount along with interest @ 7.5% per annum from the date of petition till realisation, subject to the right of recovery as referred to above. This appeal is submitted by the appellants in such circumstances seeking enhancement of compensation. 7. Heard Adv.Smt.Celine Joseph, the learned counsel appearing for the appellants and Adv.P.Jacob Mathew, the learned counsel appearing for the respondent-Insurance Company. 8. The only question that arises for consideration is whether any enhancement of compensation is warranted. On ``` MACA NO. 1346 OF 2013 ``` 5 careful perusal of the records, I find that on several heads, the amount awarded by the Tribunal as compensation is on the lower side and requires reconsideration. The first head to be taken into consideration is compensation for disability. Even though an amount of Rs.16,000/- was claimed as monthly income and to substantiate the same, Ext.A8 certificate was marked by examining the employer as PW1, the Tribunal took the monthly income as Rs.5000/-, which appears to be, very low. It is to be noted that, the fact that the deceased was a heavy vehicle driver is evident from the accident itself, as he was found to be driving the heavy vehicle at the relevant time. In Manusha Sreekumar v. United India Insurance Co. Ltd [2022 (5) KLT OnLine 1024 (SC)] the Hon’ble Supreme Court was pleased to fix the monthly income of a driver, on the basis of the wages fixed by the State Government as per Motor Transport Workers payment of Fare Wages Act, 1971 and the notification issued thereunder, as Rs.15,600/-, in respect of an accident occurred in the year 2015. In this case, the evidence of PW1, which is supported by Ext.A8, is to the effect the deceased was getting a daily wage of Rs.550/-. In the light of the observations made by ``` MACA NO. 1346 OF 2013 ``` 6 the Manusha Sreekumar case (supra) and also the evidence in the form of Ext.A8, the monthly income can be fixed as Rs.13,000/- in this case. As the deceased was aged 25 years, the multiplier applicable is 18 and an addition of 40% of the income is to be made towards future prospects. As the deceased died as a bachelor, the deduction towards personal expenses is 50%. While reassessing the compensation in the above criteria, the amount of compensation for loss of dependency would come to Rs.19,65,600/- (Rupees Nineteen Lakhs Sixty-five Thousand Six Hundred only). [(13,000 + 40%) X 12 X 18 X ½]. The amount already awarded by the Tribunal is Rs.5,10,000/- and thus, the additional compensation under the head of loss of dependency would come to Rs.14,55,600/- (Rupees Fourteen Lakhs Fifty-five Thousand Six Hundred only). 9. The amounts awarded by the Tribunal towards loss of estate and funeral expenses were Rs.5000/- each and in the light of the National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], the proper amount should have been Rs.15,000/- each. Therefore, further amounts of Rs.10,000/- each are awarded under the said heads. The Tribunal did not award ``` MACA NO. 1346 OF 2013 ``` 7 any compensation for the loss of consortium. In the light of the Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130] and United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and others [ (2021) 11 SCC 780], the first and second appellants being the parents of the deceased were entitled to compensation @ Rs.40,000/- each. However, it is seen that an amount of Rs.5000/- is awarded towards the loss of love and affection. It was held in Satwinder Kaur’s case (supra) when compensation for loss of consortium is awarded, no separate compensation needs to be granted for love and affection. Therefore, the amount of Rs 5,000/- is adjusted towards the amount fixed as compensation for the loss of the consortium. Thus, the additional amount under this head would be Rs.75,000/-. Thus, the total additional compensation would come to Rs.15,50,600/- (Rupees Fifteen Lakhs Fifty Thousand and Six Hundred only) [14,55,600 + 10,000 + 10,000 + 75,000]. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 18.02.2013 in OP(MV)No.425/2011 passed by the Motor Accidents Claims Tribunal, Kalpetta is hereby modified by granting an additional ``` MACA NO. 1346 OF 2013 ``` 8 compensation of Rs.15,50,600/- (Rupees Fifteen Lakhs Fifty Thousand Six Hundred only). The third respondent/Insurance Company is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that, this Court did not interfere with the right of recovery granted to the third respondent. It shall be open to recover the additional compensation from the second respondent. sd/- ZIYAD RAHMAN, A.A, JUDGE R.AV