MACA NO. 163 OF 2019

``` MACA NO. 163 OF 2019 ``` 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 13[TH] DAY OF SEPTEMBER 2023 / 22ND BHADRA, 1945 ``` ## **`MACA NO. 163 OF 2019`** ``` (AGAINST THE AWARD DATED 25.07.2018 IN OP(MV)NO.800/2015 ON ``` ``` THE FILES OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1SOUMINI.C, AGED 49 YEARS AGED 49 YEARS, W/O.AYYAPPAN, 2NEETHU C, AGED 23 YEARS D/O.AYYAPPAN. 3NIJIL.C, AGED 22 YEARS S/O.AYYAPPAN (ALL ARE RESIDING AT CHALAKANDI HOUSE, MUTTAYOOR, PULIKKAL.P.O., MALAPURAM DISTRICT- 673637). BY ADVS. K.P.ANIL KUMAR SRI.T.R.TARIN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1ENNIKOYA, S/O.VEERAN, PALOTH HOUSE, CHERUKAVU.P.O., MALAPPURAM 673637. 2GAHAR SHGAIK.S.K, AGED 29 YEARS S/O.LIYAKAT SHAIK, RANIHATI HOUSE, SATAGASHIA.P.O., MEMARI, BURDWAN, WEST BENGAL 713422. 3UNITED INIDIA INSURANCE CO LTD MICRO OFFICE, KP 111/1093, CITY CENTER, IIND FLOOR, KONDOTTY, MALAPPURAM-673638. ``` ``` SC SRI.S.K.AJAY KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 163 OF 2019 ``` 2 ## ZIYAD RAHMAN, A.A, J ## M.A.C.A No. 163 of 2019 th Dated this the 13 day of September, 2023 ## JUDGMENT The appellants are the petitioners in OP(MV)No.800/2015 on the files of the Motor Accidents Claims Tribunal, Manjeri. The said claim petition was submitted by them seeking compensation for the death of one Ayyappan, aged 53 years, in an accident that occurred on 07.01.2014. 2. The deceased was the husband of the first appellant and the father of the appellants 2 and 3. The accident occurred when a jeep bearing Registration No.KL-11/L-52774 driven by the second respondent hit the deceased, while he was standing on the side of the road. The said vehicle was owned by the first respondent, and was insured with the third respondent herein. According to the appellants, the deceased was running a tea shop with an income of Rs.15,000/- (Rupees fifteen thousand only). The compensation sought by the appellant was Rs.20,00,000/- (Rupees twenty lakhs only). ``` MACA NO. 163 OF 2019 ``` 3 3. The first and second respondents were exparte. The third respondent alone contested the matter by filing a written statement, wherein they admitted the insurance coverage of the vehicle. However, the liability was denied on various grounds. The quantum of compensation claimed was also disputed. 4. The evidence in this case consists of Exts.A1 to A7 from the side of the appellants. No evidence was adduced from the side of the respondents. After the trial, the Tribunal passed an award allowing an amount of Rs.11,50,000/- as the compensation and the third respondent Insurance Company was directed to deposit the said amount along with the interest at the rate of 9% per annum. This appeal is submitted seeking enhancement of compensation by the appellants as they were dissatisfied with the quantum of compensation awarded by the Tribunal. 5. Heard Sri K.P.Anil Kumar, learned counsel appearing for the appellants and Sri.S.K.Ajay Kumar, learned standing counsel appearing for the third respondent, Insurance ``` MACA NO. 163 OF 2019 ``` 4 Company. 6. One of the crucial contentions raised by the learned counsel for the appellants is with regard to the inadequacy of the compensation awarded by the tribunal under the head of loss of dependency. It was pointed out that even though there are ample materials indicating that the deceased was a tea vendor, with a monthly income of Rs.15,000/- (Rupees fifteen thousand only), the Tribunal took only Rs.10,000/- (Rupees ten thousand only) by following the principles laid down by the Hon’ble Supreme Court in Ramachandrappa Vs. Manager Royal Sundharam Alliance Insurance Company Limited 2013 SCC 236. According to the learned counsel for appellants, the principles laid down by the Hon’ble Supreme Court in the said case, were in respect of the ordinary employees and the said criteria could not have been made applicable to the case of the appellants herein, as the deceased in this case was not employed but was conducting a small business on his own. To substantiate the said contentions, the learned counsel brought 5 ``` MACA NO. 163 OF 2019 ``` the attention of this court to the contents of Ext.A1 FIR, wherein the occupation of the deceased was referred to as a tea vendor. When the facts and circumstances of the case are considered, I find some force in the contentions put forward by the learned counsel for the appellants. As rightly pointed out by the learned counsel, the method of calculating monthly income as cited in Ramachandrappa’s case was with respect to the ordinary employees and a different method can be applied in the case of persons engaged in the business on their own. As pointed out by the learned counsel for the appellants, the contents of the FIR clearly indicate that the deceased was a tea vendor. The FIS need not be disbelieved as it was recorded immediately after the accident. In such circumstances, a higher monthly income than taken by the Tribunal, can be adopted. In the facts and circumstances of the case, I deem it appropriate to fix Rs.12,000/- (Rupees twelve thousand only) as monthly income for the purpose of computing the compensation for the loss of dependency. As ``` MACA NO. 163 OF 2019 ``` 6 per the principles laid down in National Insurance Company Vs. Pranay Sethi and Others 2017 ILR (4) Kerala 1, 10% can be added towards loss of dependency, considering the age of the deceased. While re-working the compensation with the above revised criteria, the compensation under the head of loss of dependency would come to Rs.11,61,600/- (Rupees eleven lakhs sixty one thousand six hundred only). After deducting Rs.9,68,000/- (Rupees nine lakhs sixty eight thousand only) already awarded by the Tribunal. The additional amount would come to Rs.1,93,600/- (Rupees One lakh ninety three thousand six hundred only). 7. The learned counsel for the third respondent/Insurance Company pointed out that, the Tribunal has awarded an amount of Rs.1,00,000/- (rupees one lakh only) under the head of loss of love and affection and further sum of Rs.40,000/- (Rupees forty thousand only) under the head of loss of consortium. According to the learned counsel for the third respondent, both the said amounts should not have been ``` MACA NO. 163 OF 2019 ``` 7 granted together. The said contention is to be accepted in the light of the principles laid down by the Hon’ble Supreme Court in United India Insurance Co.Ltd v. Satinder Kaur [2020 SCC OnLine SC 410] . The amounts receivable by the appellants, as per the principles laid down therein, under the head of loss of consortium shall be at the rate of Rs.40,000/- (Rupees forty thousand only) for each of the appellant. Thus the total an amount of Rs 1,20,000/- (40000 x 3) would be compensation for loss of consortium in this case, thereby resulting in an additional compensation of Rs 80,000/- under this head. Since no separate compensation for loss of love and affection can be granted along the compensation for loss of consortium, the amount of Rs 1,00,000/- awarded for loss of love and affection is deducted. Thus the total amount of additional compensation is fixed as Rs 1,73,600/- (Rupees one lakh seventy three thousand and six hundred only) (193600 + 80000- 100000). In such circumstances, this appeal is allowed and the award dated 25.07.2018 passed by the Motor Accidents Claims ``` MACA NO. 163 OF 2019 ``` **==> picture [7 x 10] intentionally omitted <==** Tribunal, Manjeri, in OP(MV)No.800/2015 is hereby modified by granting an additional amount of Rs.1,73,600/- and the third respondent, Insurance Company is directed to deposit the said amount along with at the rate of 7.5% per annum from the date of petition till realization, with proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. The appeal is disposed of accordingly. sd/ZIYAD RAHMAN, A.A, JUDGE R.AV