MACA NO. 160 OF 2009

**MACA NO. 160 OF 2009** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944** **MACA NO. 160 OF 2009** **AGAINST THE AWARD IN OP(MV) 145/2001 OF IST ADDITIONAL MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/2ND PETITIONER IN O.P(MV):** ARUNRAJ, S/O.RAJAN.O, AGED 11 YEARS, (MINOR) REP. BY PRABHAKARAN, S/O.KUTTAPPA MENON, GRAND-FATHER, R/AT.KAIPARAMBIL PUTHEN THERU, CHETTIPPADI, PARAPPANANGADI, MALAPPURAM. BY ADV SRI.K.M.JAMALUDHEEN ## **RESPONDENTS/1ST PETITINER/RESPONDENT IN O.P (MV):** |1|RAJAN O., S/O.LATE M.V. GOPALAN,| |---|---| ||AGED 38 YEARS, VAZHIPOKKU PARAMBA HOUSE,| ||KANNANCHERY.PO, KALLAI, CALICUT.| |2|MOHAMMED SHERIF SO.ABOOTY ALOLI| ||HOUSE, KOTTAYAM,PO.MALABAR, KOOTHUPARAMBA VIA,| ||KANNUR(OWNER AND DRIVER, KL-11/A 2829 LORRY).| |3|UNITED INDIA INSURANCE CO.LTD.| ||PO.SEEMA TOWER, MAVOOR ROAD, CALICUT, (INSURER OF| ||KL-11/A 2829 LORRY)| |4|A.MUHAMMED KOYA SO.MOIDEEN NOOR| ||MAHAL, KANNANTHARA PARAMBA, THIRUVANNOOR, KALLAI,| ||CALICUT(OWNER OF KL-11/J-6606 CAR).| |5|MOHAMMED UTHAMAN S/O.ABDUL KHADER| ||HARZAN MAHAL, 2/2354, CIVIL STATION, VENGERI AMSOM,| ||NEDUNGOTTU DESOM, CALICUT, (DRIVER OF KL-11/J 6606| ||CAR)| **MACA NO. 160 OF 2009** **2** 6 NATIONAL INSURANCE CO.LTD. NOOR COMPLEX, MAVOOR ROAD, CALICUT, (INSURER OF KL11/J 6606) BY ADVS. SMT.P.K.SANTHAMMA SMT.SARAH SALVY SRI.SANTHARAM.P THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 160 OF 2009** **3** ## **J U D G M E N T** The appellant was the second petitioner in O.P. (MV) No.145/2001 on the file of the Ist Additional Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the first petitioner and the respondents before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 163A of the Motor Vehicles Act,1988, claiming compensation on account of the death of 'Shymalatha' (deceased) - the wife of the first petitioner and the mother of the second petitioner. It was their case that, on 26.8.1999, while the deceased was travelling pillion on a motorcycle bearing registration No.KL-11/G 6310 along the Kozhikode – Wayanad pubic road, a lorry **MACA NO. 160 OF 2009** **4** bearing Reg. No.KL-11/A 2829, driven by the first respondent in a negligent manner, hit the motorcycle. The rider and pillion rider fell on the road. A car bearing Reg. No.Kl-11/J 6606, that was coming from behind, hit the motorcycle and ran over the deceased, who lost her life instantaneously. The lorry was owned by the first respondent and insured with the second respondent. The car was owned, driven and insured by the respondents 3 to 5, respectively. The deceased was a Tailor by profession and was earning a monthly income of Rs.3,000/-. The petitioners were the legal heirs of the deceased. Hence, the petitioners claimed a compensation of Rs.4,41,500/from the respondents, which claim was limited to Rs.4,00,000/. 3. The respondent Nos.2 and 5 had contested the proceeding by filing separate written statements. Both the Insurance Companies admitted that the lorry as well as the car had valid insurance coverage. However, they **MACA NO. 160 OF 2009** **5** disputed their liability. 4. The first petitioner was examined as PW1 and Exts.A1 to A4 were marked in evidence. The respondents produced the charge-sheet laid before the Judicial First Class Magistrate Court-IV, Kozhikode in C.C No.270/2000 and marked it as Ext.B1. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the second petitioner – the son of the deceased to recover from the second respondent an amount of Rs.1,89,500/- with interest at the rate of 6% per annum from the date of petition till the date of realisation and Rs.1,000/- as cost. The first petitioner was declined compensation on the ground that he had remarried and the second petitioner was being looked after by his maternal grand-father. 6. Dissatisfied with the quantum of compensation **MACA NO. 160 OF 2009** **6** awarded by the Tribunal, the second petitioner is in appeal. 7. Heard; Sri.Jamaludheen K.M, the learned counsel appearing for the appellant/second petitioner and Smt.P.K.Santhamma, the learned counsel appearing for the third respondent / second respondent -insurer. 8. The point that emanates for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 9. The petitioners had claimed that the deceased was a Tailor by profession and was earning a monthly income of Rs.3,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the deceased at Rs.1,250/- . 10. In **Chameli Devi and others vs. Jivrail Mian and others** [2019 KHC 5352], the Honourable Supreme Court has fixed the notional monthly income of a carpenter **MACA NO. 160 OF 2009** **7** in the year 2001 at Rs.5,000/-. 11. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 1999, I re-fix the notional monthly income of the deceased at Rs.3,000/- as claimed in the claim petition. 12. As per the Second Schedule in the Motor Vehicles Act, 1988, prior to the 2018 Amendment, the total compensation payable to the legal heirs of the deceased in the age group of 25-30 years with an annual income of Rs.36,000/- is Rs.6,12,000/-. Out of the said amount, one third of the amount has to be deducted towards the personal living expenses of the deceased. Therefore, I hold that the appellant/second petitioner is entitled to a compensation of Rs.4,08,000/- as per the structure formula in the Second Schedule, instead of Rs.1,80,000/awarded by the Tribunal. 13. In addition to the above amount, the appellant is also entitled to an amount of Rs.2,000/- towards funeral **MACA NO. 160 OF 2009** **8** expenses and Rs.2,500/- towards loss of estate. Therefore, the appellant is entitled to the total amount of Rs.4,12,500/-, as per the Second Schedule. Thus, I hold that the appellant is entitled to an enhancement of Rs.2,23,000/- (Rs.4,12,500– Rs.1,89,500) with interest at the rate of 6% per annum on the enhanced compensation amount from the date of petition till the date of realisation and proportionate cost. The 3[rd] respondent/second respondent - insurer is ordered to deposit the enhanced compensation amount with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. As the appellant has now attained the majority, the enhanced compensation shall be disbursed to the appellant/second petitioner in accordance with law. ma/23.03.2022 Sd/- **C.S.DIAS, JUDGE** **/True copy/**