MACA No. 1221 of 2018 & MACA No. 4167 of 2017

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 22[ND] DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 ``` ``` MACA NO. 1221 OF 2018 AGAINST THE AWARD DATED 27.05.2016 IN OP(MV) 67/2013 OF ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL III/ADDITIONAL DISTRICT JUDGE IV, KOZHIKODE ``` ## **`APPELLANT/1ST RESPONDENT:`** ``` JAYARAMAN NAIR(DECEASED) AGED 67 YEARS, S/O.APPUNNI NAIR,11/253, KOYILOTHU HOUSE, P.O.KUNNANTHARA, UIILIYERI, KOZHIKODE (DT)-673 327 (R.C.OWNER OF KL-56-B-6003 CAR) ``` ``` *ADDL.2GIRIJA O. AGED 58 YEARS, W/O.LATE JAYARAMAN NAIR, UTHRADAM HOUSE, KUNNANTHARA (P.O). KOYILANDY (VIA), KOZHIKODE (DT), PIN-673327. ``` ``` *ADDL.3JISHA K, AGED 39 YEARS, D/O.LATE JAYARAMN NAIR, SREESHYLAM HOUSE, IRUVALLUR (P.O), CHELANNUR, CALICUT, PIN- 673 616. ``` ``` *ADDL.4JENYA, AGED 35 YEARS, D/O. LATE JAYARAMAN NAIR, SREESHYLAM HOUSE, IRUVALLUR (P.O), CHELANNUR, CALICUT, PIN- 673616. *(ADDITIONAL APPELLANTS 2 – 4 IMPLEADED AS LEGAL HEIRS OF DECEASED APPELLANT AS PER ORDER DATED 22.06.2023 IN IA 1/2023 IN MACA 1221/2018) ``` ``` 2 ``` ## **`MACA NO. 1221 OF 2018 & MACA NO. 4167 OF 2017`** ``` BY ADVS. SANTHARAM.P K.A.MOHAMED HARIS REKHA ARAVIND P.G.GOKULNATH ``` ## **`RESPONDENTS/CLAIMANTS & RESPONDENTS 2-4:`** - `1 FATHIMAKUTTY @ PATHUMMAKUTTY AGED 66 YEARS, W/O.LATE AHAMMED, (WIFE OF DECEASED) VALIYAMANNANKAVIL HOUSE, MANNANKAVE(P.O), KOZHIKODE-673614.` - `2 ISMAIL AGED 50 YEARS S/O.LATE AHAMMED, (SON OF DECEASED) VALIYAMANNANKAVIL HOUSE, MANNANKAVE(P.O), KOZHIKODE-673614.` - `3 RASIYA AGED 47 YEARS W/O.MUHAMMATH, (DAUGHTER OF DECEASED) OORALIKKANDI HOUSE, KOTTUR, KOZHIKODE, PIN-673614.` - `4 KASIM AGED 44 YEARS S/O.LATE AHAMMED, (SON OF DECEASED) VALIYAMANNANKAVIL HOUSE, MANNANKAVE(P.O), KOZHIKODE-673614.` - `5 ABDU RAHIMAN AGED 51 YEARS S/O.KOYA, RAROTHIDATHIL(H), POZHILANKITHAZHA, P.O.KUNNATHARA, KOZHIKODE (DT)-673327` - `6 NATIONAL INSURANCE CO.LTD. NOOR COMPLEX, ARAYIDATHUPALAM, MAVOOR ROAD, KOZHIKODE-673 004, PROPOSAL NO.20086344 VALID FROM 24.12.2010 TO 23.12.2011 (INSURER OF KL-56-B-6003 CAR)` ``` MACA NO. 1221 OF 2018 & MACA NO. 4167 OF 2017 ``` ``` 3 ``` ``` 7ABDUL RAHIMAN S/O.HAMSA, KUNJAYANKANDI (H) KAPPAD (P.O), KOZHIKODE (DT) PIN– 673304. ``` ``` BY ADVS. SRI.AVM.SALAHUDIN SRI.K.B.ARUNKUMAR E.M. JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.12.2023, ALONG WITH MACA.4167/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1221 OF 2018 & MACA NO. 4167 OF 2017 ``` ``` 4 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 22[ND] DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 MACA NO. 4167 OF 2017 ``` ``` AGAINST AWARD DATED 27.05.2016 IN OP(MV) 67/2013 OF ADDL MOTOR ACCIDENT CLAIMS TRIBUNAL III/ ADDL. DISTRICT JUDGE ``` ## **`IV, KOZHIKODE`** ## **`APPELLANTS/PETITIONERS:`** - `1 FATHIMAKUTTY @ PATHUMMAKUTTY W/O LATE AHAMMED, AGED 68 YEARS, (WIFE OF DECEASED)` - `2 ISMAIL S/O LATE. AHAMMED, AGED 52 YEARS, (SON OF DECEASED)` - `3 RASIYA W/O MUHAMMATH, AGED 49 YEARS, (DAUGHTER OF DECEASED)OORALIKKANDI HOUSE, KOTTUR, KOZHIKODE.` ``` 4KASIM S/O LATE AHAMMED, AGED 46 YEARS,(SON OF DECEASED), 1ST, 2ND & 4TH PETITIONERS ARE RESIDING AT VALIYA MANNANKAVIL HOUSE,MANNANKAVE (P.O.), KOZHIKODE, PIN.673614 ``` ``` BY ADV SRI.AVM.SALAHUDIN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1JAYARAMAN NAIR (DIED) S/O APPUNNI NAIR, AGE NOT KNOWN, 11/253, KOYILOTHU HOUSE, P.O.KUNNANTHARA, ULLIYERI, KOZHIKODE, PIN – 673327 ``` ``` MACA NO. 1221 OF 2018 & MACA NO. 4167 OF 2017 ``` ``` 5 ``` ``` 2ABDU RAHIMAN S/O KOYA, AGED 53 YEARS, RAROTHIDATHIL HOUSE, POZHILANKITHAZHA P.O., KUNNATHARA, KOZHIKODE, PIN – 673327 ``` - `3 NATIONAL INSURANCE CO.LTD NOOR COMPLEX, ARAYIDATHUPALAM, MAVOOR ROAD,KOZHIKODE, PIN.673004` ``` 4ABDUL RAHIMAN S/O HAMZA, KUNJAYANKANDI (H), KAPPAD PO, KOZHIKODE, PIN – 673304 ``` - `*ADDL.5 GIRIJA O.` ``` AGED 58 YEARS, W/O.LATE JAYARAMAN NAIR, UTHRADAM HOUSE, KUNNANTHARA (P.O.), KOYILANDY (VIA), KOZHIKODE (DT), PIN-673327. ``` ``` *ADDL.6JISHA K, ``` ``` AGED 39 YEARS, D/O.LATE JAYARAMN NAIR, SREESHYLAM HOUSE, IRUVALLUR (P.O), CHELANNUR, CALICUT, PIN- 673 616. ``` - `*ADDL.7 JENYA,` ``` AGED 35 YEARS, D/O. LATE JAYARAMAN NAIR, SREESHYLAM HOUSE, IRUVALLUR (P.O.), CHELANNUR, CALICUT, PIN- 673616. ``` ``` *(ADDITIONAL RESPONDENTS 5-7 IMPLEADED AS LEGAL HEIRS OF DECEASED R1 AS PER ORDER DATED 22.06.2023 IN IA 1/2023 IN MACA 4167/2017) ``` ``` 6 ``` ``` MACA NO. 1221 OF 2018 & MACA NO. 4167 OF 2017 ``` ``` BY ADVS. K.A.MOHAMED HARIS SRI.K.B.ARUNKUMAR SRI.E.M.JOSEPH K.B.ARUNKUMAR E.M.JOSEPH REKHA ARAVIND SANTHARAM.P ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.12.2023, ALONG WITH MACA.1221/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1221 OF 2018 & MACA NO. 4167 OF 2017 ``` ``` 7 ``` ## **`JUDGMENT`** ## **`[MACA Nos.1221/2018, 4167/2017]`** Both these appeals arise from O.P.(M.V.) No.67/2013 on the files of the Additional Motor Accident Claims Tribunal III, Kozhikode. The said claim petition was submitted by the claimants, who are the appellants in M.A.C.A. No.4167/2017, seeking compensation for the death of one Ahammed due to the injuries sustained in a motor accident that occurred on 23.07.2011. Consequent to the injuries sustained in the accident, he was admitted to the hospital, and while undergoing treatment, he died on 10.11.2011. The accident occurred when the car bearing Registration No.KL 56 B 6003 hit the deceased while he was standing on the side of the road. _(For the sake of convenience, the parties herein are referred to their respective ranks in the claim petition.)_ 2. The vehicle involved in the accident was being ridden by the 2nd respondent, owned by the 1st respondent, and insured with the 3rd respondent. The deceased was aged 72 years at the time of the accident and was working as a coolie with a monthly ``` MACA NO. 1221 OF 2018 & MACA NO. 4167 OF 2017 ``` ``` 8 ``` income of Rs.6,000/- as on the date of the accident. The claim petition was submitted in such circumstances seeking compensation. 3. The 1st respondent filed a written statement, contending that at the time of the accident, the 4th respondent was driving the vehicle. It was also contended by the 1st respondent that the vehicle was validly insured with the 3rd respondent and, therefore, if at all, any liability arises that has to be indemnified by them. They also disputed the quantum of compensation. The 3rd respondent filed a written statement contending that the vehicle involved in the accident was not insured with them at the time of the accident. The 4th respondent filed a written statement stating that he was the driver of the vehicle at the time of the accident. However, he denied the negligence on his part. He also placed his driving license before the Tribunal. 4. The evidence in this case consists of Exts.A1 to A12 from the side of the claimants. From the side of the respondents RWs 1 to 3 were examined and Exts.B1 to B4 were marked. After ``` MACA NO. 1221 OF 2018 & MACA NO. 4167 OF 2017 ``` ``` 9 ``` the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 4th respondent in driving the motor vehicle. However, it was found that, at the relevant time, the vehicle was not covered with a valid insurance policy, and therefore, the 3rd respondent was exonerated from the liability. The quantum of compensation was fixed as Rs.4,92,000/with interest @ 9% per annum from the date of petition till realisation with proportionate cost and the said amount was recoverable from the 1st respondent. Challenging the finding of the Tribunal exonerating the Insurance Company, the 1st respondent filed M.A.C.A. No.1221/2018, whereas seeking enhancement of compensation, the claimants have filed M.A.C.A. No.4167/2017. 5. Heard Sri.A.V.M. Salahuddeen, learned counsel for the claimants/the appellants in M.A.C.A. No.4167/2017, Sri.P.Santharam, learned counsel appearing for the 1[st] respondent, the appellant in M.A.C.A. No.1221/2018 and Sri.E.M. Joseph, learned counsel appearing for the 3[rd] respondent Insurance Company. ``` MACA NO. 1221 OF 2018 & MACA NO. 4167 OF 2017 ``` ``` 10 ``` 6. The first question that is to be dealt with is the question of liability, which is the subject matter in M.A.C.A. No.1221/2018. Even though the Tribunal found that the vehicle was not covered with a policy as on the date of the accident, the appellant produced Annexure I policy issued by the 3[rd] respondent in respect of the vehicle involved. It is also submitted by the learned counsel for the appellant that, subsequent to the filing of the written statement, by the 3[rd] respondent, an additional written statement was also submitted by them admitting the coverage of policy but, unfortunately some defects were noted to the written statements and the said admission could not be brought to the notice of the Tribunal while the matter was being disposed of. Anyhow, a perusal of Annexure 1 would clearly indicate that, the vehicle was covered with a valid policy as on the date of the accident which is not disputed by the Insurance Company as well. In such circumstances, I am of the view that, the finding of the Tribunal exonerating the 3[rd] respondent Insurance Company is to be interfered with. Thus, the said finding is set aside and it is held that, as there was a valid insurance policy for the said vehicle ``` 11 ``` ## **`MACA NO. 1221 OF 2018 & MACA NO. 4167 OF 2017`** at the time of the accident. Hence, the entire amount of compensation has to be deposited by the 3[rd] respondent Insurance Company. 7. The next aspect relates to the quantum of compensation, which is the subject matter in M.A.C.A. No.4167/2017. The deceased was aged 72 years at the time of the accident and was working as a coolie. Of course, no evidence was adduced to substantiate the same. However, when the method of computation of monthly income that is evolved from the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] is adopted the monthly income of an ordinary worker can be fixed as Rs.8,000/- for the year 2011. Therefore, the same can be accepted in this case also. Of course it is true that the monthly income claimed was Rs.6,000/- only. However, in **Minu Rout v. Satya Pradyumna Mohapatra** [(2013) 10 SCC 695] the Honourable Supreme Court was pleased to take the monthly income at a higher rate than claimed in the claim ``` MACA NO. 1221 OF 2018 & MACA NO. 4167 OF 2017 ``` ``` 12 ``` petition. Besides the same, here, the claim was put forward by the legal heirs of the deceased, who may not be knowing the exact income of the deceased. Therefore, I do not find any legal impediment in adopting Rs.8,000/- as the monthly income despite the fact that the claim was only for Rs.6,000/-. 8. When reassessing the compensation with the revised monthly income, the amount to be awarded under the head of loss of dependency would come to Rs.3,20,000/- [8000x12x5x2/3] and after deducting the Rs.1,60,000/- already awarded by the Tribunal, the additional amount would come to Rs.1,60,000/-. Besides the same, the appellants being the wife and the children of the deceased are entitled for loss of consortium at the rate of Rs.40,000/- each, thereby the total amount would come to Rs.1,60,000/-, whereas the amount awarded by the Tribunal was only Rs.1,00,000/-. Therefore, a further sum of Rs.60,000/- is awarded. 9. At the same time, the amount of Rs.1,00,000/- awarded by the Tribunal towards loss of love and affection has to be deducted in the light of the observations made by the Hon’ble Supreme Court ``` MACA NO. 1221 OF 2018 & MACA NO. 4167 OF 2017 ``` ``` 13 ``` in **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [2020 (3) KHC 760], since the compensation is already awarded for loss of consortium. Similarly, under the heads of loss of estate and funeral expenses the amount awarded were Rs.25,000/- each, whereas the actual amounts were only Rs.15,000/- each. Therefore, Rs.10,000/- each have to be deducted under both these heads. Thus, while reassessing the compensation in the light of the above observations, it would come to Rs.1,00,000/- [ (160000 + 60000) – (100000+10000+10000)]. Thus, the total compensation receivable to the claimants is to be fixed as Rs.5,92,000/- (Rupees five lakh ninety two thousand only) (492000 + 100000). In the light of the aforesaid observations and finding, the following orders are passed: i) The award dated 27.05.2016 in O.P.(M.V.) No.67/2013 passed by the Motor Accident Claims Tribunal III, Kozhikode is hereby set aside to the extent it exonerated the 3[rd] respondent Insurance Company from the liability. It is held that at the time of the accident the vehicle was covered with a valid insurance policy ## **`MACA NO. 1221 OF 2018 & MACA NO. 4167 OF 2017`** ``` 14 ``` and therefore, the 3[rd] respondent is liable to pay the compensation. ii) The quantum of compensation is re-fixed as Rs.5,92,000/- (Rupees five lakh ninety two thousand only) and the 3[rd] respondent in the claim petition is directed to deposit the said amount along with the interest at the rate as ordered by the Tribunal and with proportionate cost within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that as the delay of 390 days in filing MACA 4167/2017 was condoned by this court on the condition that, the appellants/claimants shall not be entitled to interest for the said period, the 3[rd] respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. **Sd/-** ``` ZIYAD RAHMAN A.A. JUDGE ``` scs ``` 15 ``` ``` MACA NO. 1221 OF 2018 & MACA NO. 4167 OF 2017 ``` ## **`APPENDIX OF MACA 1221/2018`** ``` PETITIONER ANNEXURES ANNEXURE 1ORIGINAL OF THE INSURANCE POLICY ISSUED BY THE 6TH RESPONDENT. ```