MACA NO. 1421 OF 2014 AGAINST THE AWARD IN O.P (M.V) NO.437/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944 ``` ## **`MACA NO. 1421 OF 2014`** ``` AGAINST THE AWARD IN O.P (M.V) NO.437/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ``` ## **`PALAKKAD.`** ## **`APPELLANTS/PETITIONERS:`** ``` 1SHAJAHAN, (DIED) S/O. SHERIF, RESIDING AT NADUKALATHIL HOUSE, THEKKEKADU, VANDITHAVALAM, CHITTUR TALUK, PALAKKAD. Suppl 2SHAJILA, AGED 38 YEARS, W/O. LATE SHAJAHAN, RESIDING AT -DO - Suppl 3SHILNA.S.,(MINOR) AGED 17 YEARS D/O. LATE SHAJAHAN, RESIDING AT -DO - Suppl 4SHAHIN,(MINOR) AGED 11 YEARS S/O. LATE SHAJAHAN, RESIDING AT- DO - Suppl 5SHAREEF, AGED 70 YEARS S/O. ASSANAR RAWTHER, RESIDING AT- DO - Suppl 6FATHIMA AGED 65 YEARS W/O. SHAREEF, RESIDING AT -DO - Suppl 7SAINUDEEN, AGED 43 YEARS, S/O. SHAREEF,RESIDING AT- DO - BY ADV SRI.T.K.SANDEEP ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1M.SIVAN, S/O. MARUTHAN, 102/9, KALLAMPOTTA HOUSE, PALATHULLY, PERUVEMBA.P.O., PALAKKAD-678531. 2C. JAYAN, C/O. CHETTATHY, THEYYAMKUNNAM, THIRUVALATHUR, KODUMBU VILLAGE, PALAKKAD-678101. 3THE NEW INDIA ASSURANCE CO. LTD. PALAKKAD-678001. BY ADVS. SRI.V.A.JOHNSON VARIKKAPPALLIL SRI.V.P.K.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1421 OF 2014 ``` ``` 2 ``` ## JUDGMENT ## Dated this the 07[th] day of February, 2023. This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Palakkad (for short, ‘the Tribunal’) on 06.12.2011 in O.P.(M.V) No.437/2007. 2. Petitioners are the legal heirs and dependents of one Mr.Shajahan, who died due to the injuries sustained in a motor accident occurred at 11.10 a.m on 27.02.2007. He was traveling as a pillion rider in a Motorcycle, bearing registration No.KL-9N/2145, ridden by one Mr.Mujeeb Rahman. The Motorcycle was proceeding from Vandithavalam to Palakkad and when reached near Thanneer Panthal Canal bridge, a Tipper Lorry bearing Registration No.KL9/T/5349 hit against and thereby, he sustained serious injuries. He was rushed to Palana Hospital, Palakkad and treated there as inpatient from 22.02.2007 to 24.05.2007. He was shifted to Karuna Hospital and the treatment was continued there as inpatient from 18.05.2009 till 23.05.2009. Thereafter, he was shifted to Jubilee ``` MACA NO. 1421 OF 2014 ``` ``` 3 ``` Mission Hospital, Thrissur and treated as inpatient from 18.06.2009 till 28.06.2009 and further from 19.07.2009 till 07.08.2009. He succumbed to the injuries sustained on 07.08.2009. The accident was allegedly occurred due to the rash and negligent driving of the Tipper Lorry by its driver, who was arrayed as the 2[nd] respondent in the Original Petition. The owner, driver and insurer of the Tipper Lorry were arrayed as respondents 1 to 3 in the Original Petition seeking compensation. Rs.20,00,500/was claimed as compensation. 3. 1[st] and 2[nd] respondents filed written statement contending that the Tipper Lorry was driven by the 2[nd] respondent carefully and the accident was caused due to the rash and negligent driving of the Motorcycle by its rider. The age, occupation, monthly income and injuries sustained by the victim of the accident were disputed. It was further contended that the 2[nd] respondent, who was driving the Tipper Lorry was not holding a valid driving license. However, the insurance coverage of the Tipper Lorry with the 3[rd] respondent was admitted. ``` MACA NO. 1421 OF 2014 ``` ``` 4 ``` 4. The 3[rd] respondent had filed written statement admitting insurance coverage of the Tipper Lorry bearing registration No. KL-9T/5349 as on date of accident. It was contended that the accident was occurred due to the rash and negligent driving of the Motorcycle by its rider. The negligence on the part of the driver of the Tipper Lorry was denied. Age, occupation and monthly income of the victim of the accident were denied. Compensation claimed is also disputed for its exorbitant nature. 5. Before the Tribunal, two witnesses were examined as PWs 1 and 2 and Exts.A1 to A18 were marked. On the side of the respondents, the policy issued was marked as Ext.B1. On appreciation of the above evidence, the Tribunal found that the petitioners being the legal heirs of the deceased Shajahan were entitled to get compensation and arrived at Rs.10,68,850/-, rounded off to Rs.10,69,000/- as the compensation payable. The 3[rd] respondent insurer was directed to deposit the above sum with interest at the rate of 7.5% per annum from 04.05.2007, the date of filing of the Original Petition till the date of realization. ``` MACA NO. 1421 OF 2014 ``` ``` 5 ``` 6. According to Sri.Sandeep T.K, the learned counsel for the petitioners, the deceased Shajahan claimed to be Supervisor of a Construction Company, namely, ‘Royal Construction Company, Chennai’ earning Rs.10,000/- as salary. The employer of the deceased was examined as PW1 and the Salary Certificate issued was marked in evidence as Ext.A1. According to the learned counsel, despite the examination of the employer and marking of Ext.A1 certificate, the Tribunal failed to fix Rs.10,000/- as the monthly income. According to him, the reason stated by the Tribunal was that the pay slips, relating to disbursement of salary issued by PW1 infavour of the deceased were not produced. The learned counsel contended that the Tribunal is unjustified in taking such a view and fixing only Rs.5,000/- as the monthly income, for the purpose of computation of compensation. The learned counsel has also pointed out that the Tribunal failed to award the amount fixed by the Apex Court in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] as payable under the conventional heads, viz. loss of consortium, funeral expenses and loss of estate. He canvassed for re-fixation of the compensation in accordance with the fixation in ``` MACA NO. 1421 OF 2014 ``` ``` 6 ``` Pranay Sethi supra. 7. Sri.V.P.K Panicker, the learned counsel for respondent No.3 urged that the award of compensation by the Tribunal being just and reasonable, interference is totally unwarranted. According to him, despite the marking of Salary Certificate as Ext.A1 and examination of the employer as PW1, the job and monthly income of the petitioner stands not proved and therefore, the Tribunal had adopted fixation on a notional basis. The learned counsel has conceded fairly that the petitioners are entitled for a re-fixation of compensation under the conventional heads on the basis of Pranay Sethi supra. 8. Having read the evidence tendered by PW1, this Court is convinced that though he deposed as holding the position as the Managing Partner of a construction company, Ext.A1 certificate was issued not in that capacity. He has also stated that pay slips were issued while disbursing salary to the petitioner, but those were not produced and marked in evidence. He was also questioned during cross examination about his authority to issue Ext.A1 but he remained silent. In the said circumstances that the Tribunal had ``` MACA NO. 1421 OF 2014 ``` ``` 7 ``` discarded the oral evidence tendered by PW1 and Ext.A1 marked through him in evidence and fixed the monthly income as Rs.5,000/- on a notional basis. The accident being occurred in the year 2007, this Court finds that the fixation of monthly income notionally as Rs.5,000/- falls on the lower side. However, the claim of the petitioner that he was Supervisor of a construction company stands proved before the Tribunal. Therefore, this Court is inclined to fix Rs.7,000/- as the monthly income. The deceased being survived by five members, the wife, two children and parents, 1/4[th] needs to be deducted from the monthly income in consideration of personal expenditure that would be met with, had the victim been alive. The deceased being aged 41 years, as per the dictum in Pranay Sethi supra, 25% needs to be added to the monthly income in consideration of loss of future prospects. The age of the deceased being 41 years, 14 is the multiplier applicable. The Tribunal had taken it correctly and therefore it is maintained. In a re-assessment of compensation for loss of dependency with Rs.7,000/- as the monthly income, Rs.11,02,500/- is found payable. Rs.6,30,000/stands awarded by the Tribunal when adjusted against, the ``` MACA NO. 1421 OF 2014 ``` ``` 8 ``` petitioners will get Rs.4,72,500/- as additional compensation. Under the head loss of estate, the Tribunal had awarded only Rs.5,000/-, in the place of Rs.16,500/- for which petitioners are entitled to. Therefore, Rs.11,500/- more is granted as additional compensation. Under the head funeral expenses, the sum stands awarded by the Tribunal being Rs.2,000/-, a sum of Rs.14,500/- is awarded as additional compensation. Rs.5,000/- stands awarded as compensation towards loss of love and affection in view of disentitlement for the petitioners is liable to be deducted. Each of the surviving members of the deceased are entitled to get Rs.44,000/- as compensation towards loss of consortium. Thus Rs.2,20,000/- is found payable in total. Rs.10,000/- stands awarded by the Tribunal under that head and Rs.5,000/- stands awarded under the head loss of love and affection when adjusted against, the petitioner will get Rs.2,05,000/- as additional compensation towards loss of consortium. In the re-fixation as above, the petitioners will get Rs.7,03,500/- (Rupees Seven Lakh Three Thousand Five Hundred only) as additional compensation. ``` MACA NO. 1421 OF 2014 ``` ``` 9 ``` 9. The 3[rd] respondent shall deposit the above sum with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realization, within a period of two months from the date of on which, a certified copy of this judgment is received. 10. It is submitted by the learned counsel for the 3[rd] respondent that the filing of the appeal was delayed by 716 days. Therefore, the 3[rd] respondent is exonerated from paying interest for the said period. ## Appeal stands allowed accordingly. **`Sd/-`** MARY JOSEPH JUDGE JJ