Kuttiappu and others v. ICICI Lombard General Insurance Co. Ltd. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD AGRAHAYANA,** ## **1945** **MACA NO. 11 OF 2012** **AGAINST THE ORDER/JUDGMENT OPMV 175/2009 OF MOTOR ACCIDENTS** ## **CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANTS/PETITIONERS:** 1 KUTTIAPPU AGED 64 YEARS S/O.CHEKKU LATE, 2 SARASWATHY AGED 52 YEARS W/O.KUTTIAPPU 3 SINDHU AGED 30 YEARS D/O.KUTTIAPPU 4 SMITHA AGED 27 YEARS D/O.KUTTIAPPU 5 SIJI AGED 27 YEARS D/O.KUTTIAPPU,(ALL ARE RESIDING AT MULLASSERY MELE PERAZHI HOUSE, FEROKE COLLEGE POST, KOZHIKODE). BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN ## **RESPONDENTS/RESPONDENTS:** 1 NIZAR AGE AND FATHER'S NAME NOT KNOWN , RESIDING AT PULIKKAL HOUSE, ,THRIKKANNAPURAM,THAVANOOR, MALAPPURAM. 2 RAMACHANDRAN.P AGED 32 YEARS S/O.SIVANANDAN NAMBOODIRI, PERUMBALATH, MANAKKAL M.A.C.A No. 11 of 2012 2 HOUSE, ANAKKARA POST,AMSOM DESOM,MALAPPURAM - 3 ICICI LOMBARD GENERAL INS.CO.LTD. 2ND FLOOR,CITY PLAZA BUILDINGS, YMCA CROSS ROAD, KOZHIKODE. - 4 MOHAMMED HARIS S/O.ABDURAHIMAN,AGE NOT KNOWN ,RESIDING AT PALEKKODAN HOUSE, VALAKULAM POST, MALAPPURAM. 5 IBRAHIM AGED 40 YEARS S/O.CHEKKUTTY,AGED 40 YEARS, RESIDING AT PUTHUPPARANMBIL HOUSE, THOZHUVANNOOR,MALAPPURAM - 6 THE UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, SUBKA BUILDINGS, THAZHEPALAM,TIRUR ,MALAPPURAM. - 7 MUHAMMED KUNHI S/O.ABDUL KHADER,AGE NOT KNOWN,RESIDING AT H.NO.11/339, PAIVALIKE HOUSE, KASARAGOD. BY ADVS. SRI.LATHEESH SEBASTIAN JOHN JOSEPH VETTIKAD SRI.T.V. AJAYAKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No. 11 of 2012 3 ## **JUDGMENT** The appellants are the petitioners in O.P(M.V) No. 175/2009 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode. The claim petition was submitted by them seeking compensation for the death of one Udaya Bhanu, who died due to the injuries sustained in a motor accident that occurred on 07.09.2008. The deceased was aged 24 years at the time of the accident and was working as a coolie with a monthly income of Rs.8,500/-. The 1[st] and the 2[nd] appellants are the parents and the appellants 3 to 5 are the siblings of the deceased. 2. The accident occurred when the motorcycle on which the deceased was travelling as a pillion rider, was hit by a lorry bearing registration No.KL 07 N5049 driven by the 2nd respondent. The 1st respondent owned the said vehicle and it was insured with the 3rd respondent. Respondents 4 to 6 are the owner, rider and the insurer of the motorcycle. The claim petition was submitted in such circumstances. 3. The 3rd and 6th respondents, insurance companies filed written statements admitting the insurance coverage over the M.A.C.A No. 11 of 2012 4 respective vehicles. However, they disputed the negligence as well as the quantum of compensation. 4. The evidence in this case consists of Exts.A1 to A5 from the side of the appellants and no evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 2nd respondent, the driver of the lorry. Being the insurer of the said vehicle, the 3rd respondent herein was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,55,000/- and the said amount was directed to be deposited by the 3rd respondent with interest at the rate of 7% per annum with a cost of Rs.1,500/-. This appeal is submitted by the appellant seeking enhancement of compensation in such circumstances. 5. Heard, Sri.V.S Chandrasekaran, the learned counsel appearing for the appellants and Sri.Latheesh Sebastian, the learned counsel appearing for the 3[rd] respondent. 6. The only dispute in this case is relating to the quantum of compensation. According to the learned counsel for the appellants, the amounts awarded under various heads, particularly 5 M.A.C.A No. 11 of 2012 under the head of loss of dependency, were inadequate. After considering the materials placed on record, I find force in the said contention. It is seen that the Tribunal has taken only Rs.2,500/as the monthly income, which appears to be grossly inadequate. Of course, it is true that, even though the deceased was claimed to be a coolie, no evidence was adduced to substantiate the same and there is nothing on record to prove the monthly income as well. However, in the light of the method of computation 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], the monthly income for the person in respect of an accident occurred in the year 2008 can be reasonably fixed as Rs.6,500/-. Therefore, the said amount is fixed in this case as well. 7. Another aspect to be noticed is that the Tribunal did not make any additions towards future prospects. In the light of **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)], 40% of the monthly income ought to have been M.A.C.A No. 11 of 2012 6 added towards future prospects as the deceased was aged 24 years at the time of the accident. Moreover, as the deceased died as a bachelor, a deduction of 50% towards personal expenses ought to have been made. While reassessing the compensation with the above revised criteria the compensation payable under the head of loss of dependency would come to Rs.9,82,800/[(6,500+40%) x12x18x1/2)]. The amount already awarded by the Tribunal comes to Rs.1,35,000/- and thus, the additional compensation receivable by the appellants for loss of dependency would be 8,47,800/-. 8. The Tribunal has awarded only Rs.3000/- towards funeral expenses, whereas the proper amount to be awarded under this head is Rs.15,000/-. Therefore a further sum of Rs.12,000/- is awarded. Similarly, no amount is seen awarded towards loss of estate and therefore, Rs.15,000/- is awarded under the said head in the light of **Pranay Sethi** (supra). 9. The next head to be considered is the loss of consortium. No amount is seen awarded by the Tribunal under the said head. The appellants 1 and 2, being the parents of the deceased, are entitled to compensation at the rate of 40,000/- M.A.C.A No. 11 of 2012 7 each in the light of the principles laid down by the Honourable Supreme Court in **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur** [(2021) 11 SCC 780] and **Magma General Insurance Co.Ltd. v. Nanu Ram & Others** [2018 (3) KLT Online 3095 (SC)]. However, as it was held in **Satinder Kaur** (supra) that, when compensation is awarded in loss of consortium, no other amount needs to be granted for loss of love and affection, the amount of Rs.5,000/- awarded by the Tribunal for loss of love and affection is to be deducted. Thus, the additional compensation for the loss of consortium is determined as Rs.75,000/-. Accordingly, the total compensation receivable by the appellants is fixed as Rs.9,49,800/-(8,47,800 +12,000 + 15,000 + 75,000). In the light of the aforesaid observation and findings, this appeal is allowed. The award dated 25.03.2010 passed by the Principles Motor Accidents Claims Tribunal, Kozhikode in O.P(M.V) No. 175/2009 is hereby modified by granting an additional compensation of Rs.9,49,800/- (Rupees Nine lakhs forty nine thousand and eight hundred only) and the said amount shall be deposited by the 3[rd] respondent insurance company along with M.A.C.A No. 11 of 2012 **==> picture [7 x 9] intentionally omitted <==** interest at the rate as ordered by the Tribunal and with proportionate costs within a period of three months from the date of receipt of the copy of this judgment. It is clarified that, as the appeal was filed with a delay of 479 days, the 3[rd] respondent insurance company shall be at liberty to exclude the said period while computing the interest on the additional compensation. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk