MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017

``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 ``` ## **`MACA NO. 1911 OF 2018`** ``` AGAINST THE AWARD DATED 03.04.2017 IN OP(MV)NO.1404/2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,PERUMBAVOOR ``` ## **`APPELLANTS/PETITIONERS:`** - `1 P.K.RIYAS, H/O. DECEASED SAKEENA RIYAS,PULIPARAMBIL HOUSE, ERUMATHALA, ALUVA. [DIED]*` - `2 P.R JENIS, S/O. SAKEENA RIYAS,PULIPARAMBIL HOUSE, ERUMATHALA, ALUVA.` - `3 P.R FAIZ, S/O. SAKEENA RIYAS,PULIPARAMBIL HOUSE, ERUMATHALA, ALUVA.` - `4 P.R BALKEES, D/O. SAKEENA RIYAS,PULIPARAMBIL HOUSE, ERUMATHALA, ALUVA.` - `5 UMAIBA GAFOOR UMAIBA P.K, W/O. ABDUL GAFOOR, THUNDIPARAMBIL HOUSE, VAZHAKKALA, KAKKANAD.` ``` * DEATH OF FIRST APPELLANT RECORDED ``` ``` THE MEMO DATED 1.12.2021 REPORTING THE DEATH OF THE FIRST APPELLANT AND STATING THAT THE APPELLANTS 2 TO 5 ARE THE LEGAL REPRESENTATIVES OF THE DECEASED FIRST APPELLANT IS RECORDED AS PER ORDER DATED 20.12.2021 IN MACA NO.1911/2018. ``` ``` BY ADV A.N.SANTHOSH ``` ## **`RESPONDENT/THIRD RESPONDENT:`** ``` NEW INDIA ASSURANCE COMPANY LTD, DIVISIONAL OFFICE, SUB JAIL ROAD, ALUVA 683101. LATHA SUSAN CHERIAN FOR R1 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2024, ALONG WITH MACA.2387/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 2 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 ``` ``` MACA NO. 2387 OF 2017 ``` ``` AGAINST THE AWARD DATED 03.04.2017 IN OP(MV)NO.1404/2014 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL,PERUMBAVOOR ``` ## **`APPELLANT/THIRD RESPONDENT:`** ``` THE NEW INDIA ASSURANCE COMPANY LIMITED ALUVA NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI 11 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SMT.PREETHY R. NAIR RESPONDENTS / PETITIONERS: 1P.K. RIYAS, AGED 64, PULIPARAMBIL HOUSE, ERUMATHALA, ALUVA ,PIN 683 561, * [DIED] R2 TO R5 ARE RECORDED AS LRS. 2P.R.JENIS, S/O.RIYAS, AGED 35 YEARS, PULIPARAMBIL HOUSE, ERUMATHALA, ALUVA PIN 683 561. 3P.R.FAIZ, S/O.RIYAS, AGED 33, PULIPARAMBIL HOUSE, ERUMATHALA, ALUVA PIN 683 561. 4P.R.BALKEES, D/O.RIYAS, AGED 31, PULIPARAMBIL HOUSE, ERUMATHALA, ALUVA PIN 683 561. 5UMAIBA GAFOOR UMAIBA P.K, W/O.ABDUL GAFOOR, THUNDIPARAMBIL HOUSE, VAZHAKALA, KAKKANADU, PIN 682 030. *[DEATH OF RESPONDENT NO. 1 IS RECORDED AND RESPONDENTS NO. 2 TO 5 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED R1 AS PER ORDER DATED 22/12/2021 IN MEMO DATED 01/12/2021 IN MACA 2387/2017] BY ADV A.N.SANTHOSH FOR R1 TO R5 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2024, ALONG WITH MACA.1911/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 3 ## ZIYAD RAHMAN, A.A, J M.A.C.A Nos.1911 of 2018 & 2387 of 2017 nd Dated this the 2 day of February 2024 ## JUDGMENT Both these appeals arise from the award passed by the Motor Accidents Claims Tribunal, Perumbavoor in OP(MV)No.1404/2014. 2. The said claim petition was submitted by the appellants in MACA No.1911/2018, seeking compensation for the death of one Sakeena Riyas, due to the injuries sustained in a motor accident that occurred on 29.06.2014. The deceased was the wife of the first appellant and the mother of the appellants 2 to 5. (For convenience, all the parties in these appeals are hereinafter referred to as per their ranks in the claim petition). 3. According to the petitioners, the accident occurred when the deceased was travelling as a pillion rider on a scooter bearing Registration No.KL-43/B-493, it was hit by a car bearing Registration No. KL-41F-4750, driven by the ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 4 second respondent in the claim petition in a rash and negligent manner. The said car was owned by the first respondent and was insured with the third respondent. According to the appellants, the deceased was aged 59 years at the time of the accident and was a housewife. The claim petition was submitted in such circumstances. 4. The third respondent-Insurance Company alone contested the matter by filing a written statement, wherein they admitted the coverage of the policy. However, they denied the negligence on the part of the second respondent. According to them, the accident occurred due to the negligence on the part of the rider of the scooter. They also disputed the quantum of compensation claimed. 5. The evidence in this case consists of Exts.A1 to A10 from the side of the appellants and no evidence was adduced from the side of the respondents. 6. After the trial, the Tribunal came to the conclusion that, the accident occurred due to the negligence on the part ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 5 of the second respondent in driving the car and accordingly, being the insurer of the said vehicle, the third respondentInsurance Company was held liable to pay the compensation. The quantum of compensation was fixed as Rs.8,75,516/(Rupees eight lakhs seventy five thousand five hundred and sixteen only) and the third respondent was directed to deposit the said amount along with interest @ 9% per annum from the date of petition till realisation. Being dissatisfied with the quantum of compensation, the claimants have filed MACA No.1911/2018, whereas MACA No.2387/2017 was filed by the third respondent-Insurance Company challenging the quantum of compensation, 7. Heard Adv.Sri.A.N.Santhosh, the learned counsel appearing for the claimants/the appellants and Adv.Smt.Latha Susan, the learned counsel appearing for the respondent in MACA No.1911/2018, Adv.Sri.Jacob Mathew, the learned counsel appearing for the appellant and Adv.Sri.A.N.Santhosh, the learned counsel appearing for the appellants in MACA No.2387/2017. ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 6 8. The only question that arises for consideration is whether the amount awarded by the Tribunal is reasonable or not. When the claimants contend that the award passed by the Tribunal is on the lower side, the third respondent insurer would contend that the amount is exorbitant and requires reconsideration. 9. I have carefully gone through the records. The deceased was 59 years old and was a housewife. There is no dispute with respect to the same. The Tribunal accepted the monthly income of the deceased as Rs.6000/- per month and calculated the compensation by making an addition of 15% towards future prospects. The main challenge in this case is with reference to the monthly income fixed by the Tribunal. According to the learned counsel for the third respondent, the monthly income of Rs.6000/- is on the higher side. The learned counsel placed reliance upon the decision rendered by the Hon'ble Supreme Court in Rajendra Singh V. National Insurance Company Ltd., 2020 (4) KLT 6 (SC) . On the other hand, the learned counsel appearing for the claimants would contend that, under no circumstances the monthly income of a ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 7 housewife would be lesser than the income that is normally adopted in the case of a manual labourer or labourer in an unorganised sector as held by this Court in Gopinathan A and Others V Afzal Basha and Another 2020 (3) KHC 666. 10. After considering the materials placed on record and going through the observations made by this Court in Gopinathan's case (supra) , I find some force in the contentions put forward by the learned counsel for the appellants. Of course, it is true that, in Rajendra Singh's case , after elaborately discussing about the role of the housewife in managing households and the dependency of others upon her, the monthly income of the deceased housewife was taken in that case as Rs.5000/-. It is also true that the accident in that case occurred in the year 2012, whereas in this case, the accident occurred in the year 2014. However, the crucial question that arises here is whether the Hon'ble Supreme Court in Rajendra Singh's case laid down any legal proposition to the effect that, in all cases involving the death of a housewife, the monthly income would be taken as Rs.5,000/-. ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 8 However, after carefully going through the observations made by the Hon'ble Supreme Court in the said decision, I am unable to find any such legal proposition. In the said decision, the importance of the role of the housewife has been clearly discussed, and ultimately, in the facts and circumstances of that case, the monthly income was fixed as Rs.5000/-. Under no circumstances can the said decision be understood to mean that, in all cases where the death of the housewife is involved, the monthly income has to be fixed as Rs.5000/-. As regards the monthly income, it is a matter that has to be taken into account on case to case basis, considering various factors, including the financial capacity of the parties, the standard of living, the earning capacity of the members of the family etc. 11. On the other hand, this Court in Gopinathan's case , specifically considered the said issue after referring to a large number of decisions. Thereafter, a categorical finding was entered into by this Court to the effect that, under no circumstances, the notional monthly income that is ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 9 taken for a housewife/home maker who met with a motor accident in the year 2004, shall not be less than the normal monthly income of Rs.4500/- that could be taken for a manual labourer or a labourer in an unorganised sector. It is to be noted in this regard that, the monthly income of Rs.4500/- was fixed in the said case for an accident that occurred in the year 2004 by placing reliance upon the observations made by the Hon'ble Supreme Court 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], wherein the Hon'ble Supreme Court considered the monthly income of an ordinary worker without any skills. This Court is consistently adopting the method of computation on the basis of the principles laid down in Ramachandrappa’ case and Syed Sadiq’s case by fixing the basic monthly income as Rs.4500/- for any employee for the accident that occurred in the year 2004 and for determining the compensation for the subsequent years, an addition of Rs.500/- per year is being made. Therefore, as this is the most accepted and followed method of computation, the monthly ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 10 income in respect of an accident that occurred in the year 2014 could be taken as Rs.9500/-. Since this Court categorically held in Gopinathan's case (supra) that, the monthly income of a housewife cannot be lesser than the monthly income of an employee in an unorganised sector, I am of the view that the same can be applied in this case also as I am in perfect agreement with the view taken by this Court in the said decision. 12. The next aspect, which is highlighted by the learned counsel for the third respondent/Insurance Company, is the deduction to be made towards personal expenses. The learned counsel for the third respondent would point out that the Tribunal adopted the deduction of one-fourth, even though the claimants 2 to 4 were not actually dependent upon the deceased. According to the learned counsel, to assess the compensation for dependency, only the husband alone can be treated as the dependent; therefore, the proper deduction should have been one-third. However, I am not inclined to accept the said contention. This is particularly because, as ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 11 rightly pointed out by the learned counsel for the appellants, in the case of a housewife, the dependency upon her by the children cannot be in terms of the monitory consideration, as her services are invisible. In United India Insurance Company Ltd., and Shalumol and Others 2021 (5) KLT 74, this Court specifically observed that, for the purpose of an application under Section 166 of the Motor Vehicles Act, the dependency need not be the financial dependency and it can be the other types of the dependency on non-monitory transactions. In any case, as far as the question of dependency upon a house wife/home maker, who is a wife and a mother, is concerned, a different yardstick needs to be applied. Even though a housewife may not be an earning member of the family, to maintain and ensure regular earnings of the other earnings members of the family, the services rendered by the housewife are inevitable.The support that she provides to the other family members, including the earning members of the family, is the basic reason that enables the earnings members of the family to contribute to their respective employments, thereby ensuring regular and proper income for the family. Moreover, in Branch ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 12 Manager, ICICI Lombard General Insurance Company Ltd., V Kaliyamoorthy and Others (2018 KHC 5479 = 2018 ACJ 1352) The following observations were made by the Madras High Court; “14. Even in the case of married daughter, a father or mother or brother, can still monetarily help a married daughter, depending upon the need or out of love and affection. A mother can continuously render her valuable service to her daughter, even if the daughter is married. Similarly, a married daughter would still continue to assist her mother, or father, in the case of need. Contribution by means of service or income, both can be taken into account to determine the quantum of compensation. A married daughter is a legal representative, as per the law of succession and that she is entitled to make a claim and it is for the Claims Tribunal or Court, to apportion the amount, between the claimants, depending upon the loss of contribution suffered by the married daughter. 15. Exclusion of a married daughter/sister/brother from the claim petition, altogether would be opposed to the object of the Act and it would be amounting to adding words ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 13 to the legislation, which the Court is not supposed to do. As held by the Apex Court, even if there is casus omissus, it is not for the Court to add words to the legislation. The construction and interpretation of the words, legal representatives in S.166 of the Motor Vehicles Act, in the context and nature of legislation, being beneficial, should be interpreted in such a way not to take away their rights. Merely because a married daughter/sister is living with her husband, in a separate house, that by itself would not disentitle her from claiming compensation, as a legal representative, to represent, the estate of the deceased. 16. If a married daughter/sister/brother has to be excluded from the expression, legal representative, employed in S.166 of the Motor Vehicles Act, then it would virtually amounting to substituting the words legal representatives with dependents, as used in S.2(1)(d), of the Workmen’s Compensation Act. No doubt, one who is gainfully employed cannot be called as a dependent. At the same time, not all married daughters/sisters can be said to be gainfully employed. The word dependent has a different meaning in different connotation. Some may be dependent in terms of money and others may be dependent in terms of service. ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 14 17. In a given case, when the parents live with a married daughter and if the mother dies, it cannot be said that the married daughter was dependent on the mother, monetarily all the time, but still would have been dependent on her service. If the married daughter is employed, she leaves her children in the care and custody of her mother, when she is away in her office and in such cases, it cannot be said that married daughter did not loss her valuable services, which can be still be a decisive factor, for awarding quantum of compensation. 20. There could still be a case where there is contribution of a portion of the income of the deceased to a legal representative, who had preferred a claim and he/she would not be wholly dependent on the income of the deceased. A likelihood of loss of contribution from the deceased would give rise to a claim for compensation by him under S.166 of the Motor Vehicles Act, though he may not be a wholly dependent, as defined in S.2(1) (d) of the Workmen’s Compensation Act. 13. I am in perfect agreement with the observations made in the said decision. Similarly, in Arun Kumar Agrawal and Another V, National Insurance Company and Others ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 15 (2010) 9 SCC 218 = 2010 (4) KLT 230. The following observations were made by the Hon’ble Supreme Court, in respect of the role of the housewife: “23. In India the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affair's cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employee’s work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc, but she can never be a substitute for a wife/mother who renders selfless service to her husband and children. “24. It is not possible to quantify any amount in lieu of ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 16 the services rendered by the wife/mother to the family;y i.e, husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term ‘services’ is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the defendants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some to the services to the family which the deceased was giving earlier” 14. It is evident from the observations made by this Court as well as the Hon'ble Supreme Court as referred to above that, for the purpose of assessing the compensation for loss of dependency and to make deductions towards personal expenses, the actual financial dependency may not always be a relevant aspect. When the dependency upon the deceased by the claimants was not on the basis of the financial terms alone ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 17 but on the reasons of the relationships and based on love, care, protection, etc, the question of matured age of the claimants loses its significance. As far as the relationship between the mother and children is concerned, the same cannot be treated as immaterial for the purpose of dependency merely because of the advanced age of the children. Moreover, another crucial aspect to be noticed in the case of the housewife, particularly when she was a non-earning member, is that personal expenses would always be limited. Most of the expenses would be shared by her with the other members of the family. The ultimate object of making deductions is to determine the actual loss suffered by the dependents consequent to the death of the person concerned. To determine the said aspect, the amount the deceased might have spent upon himself/herself is to be eliminated, and the entire exercise of the deduction is for that purpose alone. When the case of a housewife is considered in that perspective, since she is not an earning member of the family, the scope of personal expenses is limited. Hence, the question of maturity of the children cannot have much significance as evidently, there ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 18 must be other kinds of dependencies on the basis of love, care and protection. In such circumstances, merely because the children are grown up, they cannot be treated as not dependent upon the mother/housewife for the purpose of assessing the compensation for loss of dependency. What is being assessed is the actual loss suffered by the claimants, consequent to her death, and when such loss is love, care and protection from the deceased, the same has to be compensated so far as it is possible in terms of money. In such circumstances, I do not find any scope for considering the contentions raised by the learned counsel for the appellants in this regard and I have no hesitation in holding that the proper deduction in the case of a housewife towards personal expenses can only be one fourth, when she left behind the other members of the family of more than four in numbers. 15. In such circumstances, the compensation in this case has to be calculated by taking the monthly income as Rs.9500/with a deduction of ¼ towards personal expenses. As she was aged 59 years at the time of the accident, an addition of ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 19 10% has to be made towards future prospects. Thus, while reassessing the compensation with the above criteria, the compensation for loss of dependency would come to Rs.8,46,450/- (Rupees eight lakhs forty six thousand four hundred and fifty only). (9500 + 10%) X 12 X 9 X ¾. The amount already awarded by the tribunal under this head is Rs.5,58,900/-: thus, the additional amount would come to Rs.2,87,550/-. From the award, it can be seen that, the tribunal awarded an amount of Rs.25,000/- towards funeral expenses, whereas the actual amount as National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] is Rs.15,000/- only. Therefore, an amount of Rs.10,000/- is to be deducted and it is ordered accordingly. The amounts awarded by the tribunal under the other heads, appear to be reasonable and no modification is required. In such circumstances, the additional compensation receivable by the appellants is determined as RS.2,77,550/- (Rupees two lakhs seventy seven thousand five – hundred and fifty only) (2,87,550 10,000). 16. In the result, these appeals are disposed of, the ``` MACA NO. 1911 OF 2018 & MACA NO. 2387 OF 2017 ``` 20 award dated 03.04.2017 in OP(MV)No.1404/2014 passed by the Motor Accidents Claims Tribunal, Perumbavoor is hereby modified by awarding an additional compensation of Rs.2,77,550/- (Rupees two lakhs seventy seven thousand five hundred and fifty only) and the said amount shall be deposited by the third respondent in the claim petition, the appellant in MACA No.2387/2017 with interest @ 8% per annum from the date of petition till realisation with proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. As the MACA No.1911/2018 was filed with a petition to condone the delay of 336 days and the same was condoned subject to the condition that the appellants/claimants shall not be entitled to interest for the period of delay, the third respondent shall be at liberty to exclude the said period, while computing the interest on the additional compensation. sd/- ZIYAD RAHMAN, A.A, JUDGE R.AV