MACA No.1053/2016

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 1[ST] DAY OF DECEMBER 2023/10TH AGRAHAYANA, 1945 ``` ``` MACA NO. 1053 OF 2016 ``` ``` OPMV 269/2009 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ``` ## **`,ALAPPUZHA.`** ## **`APPELLANTS/PETITIONERS:`** - `1 FATHIMA KUNJU, PUNNAYYATHU VADAKKATHIL, KANNAMPALLY BHAGOM, KEERIKKADU,KAYAMKULAM.` - `2 ANSALNA (MINOR), AGED 13 YEARS, PUNNAYYATHU VADAKKATHIL,KANNAMPALLY BHAGOM, KEERIKKADU,KAYAMKULAM.` - `3 AFSANA (MINOR), AGED 12 YEARS, PUNNAYYATHU VADAKKATHIL,KANNAMPALLY BHAGOM, KEERIKKADU,KAYAMKULAM.` - `4 HALEEMA BEEVI, PUNNAYYATHU VADAKKATHIL, KANNAMPALLY BHAGOM, KEERIKKADU,KAYAMKULAM. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP` - `SRI.P.J.JOE PAUL SRI.MARTINDAS V.JAMES SRI.MANU SEBASTIAN` ## **`RESPONDENTS/RESPONDENTS:`** - `1 ABDUL MAJEED SAYED, FATHIMA MANZIL,KADATHOOR MURI,KULASEKHARAPURAM, KARUNAGAPPALLY,KOLLAM690547.` - `2 SALIM (DELETED), FATHIMA MANZIL,KULASEKHARAPURM, KARUNAGAPPALLY, KOLLAM-690547.` - `3 SAMEENA ZAKEER (DELETED), AL-NOOR,NEAR MOTHER SUSAN SCHOOL,PATHANAPURAM, KOLLAM-689695.` - `4 NATIONAL INSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER,BRANCH OFFICE, ALAPPUZHA-688001.` ``` (RESPONDENT NOS. 2 AND 3 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 15/12/2022 IN MACA 1053/2016). ``` M.A.C.A. No.1053/2016 : 2 : ``` BY ADVS. SRI.M.S.BREEZ SRI.P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.1053/2016 : 3 : ## JUDGMENT The appellants are the petitioners in OP(MV) No.269/2009 on the files of the Additional Motor Accident Claims Tribunal, Alappuzha. 2. The said claim petition was submitted by them seeking compensation for the death of one Sunseeb, who died due to the injuries sustained in a motor accident that occurred on 11.08.2008. The 1[st] appellant was the wife, the 2[nd] and 3[rd] appellants were children and the 4[th] appellant was the mother of the deceased. The accident occurred when the motorcycle ridden by the deceased was hit by a Maruti car bearing registration No.KL-2/T-8019, driven by the 1[st] respondent. The 2[nd] respondent was the registered owner and the 4[th] respondent was the insurer of the said vehicle. According to the appellants, the deceased was aged 39 years at the time of the accident and he was working as a driver. The claim petition was submitted in such circumstances. 3. The 4[th] respondent alone contested the matter by filing a written statement wherein they accepted the existence of valid insurance policy for the Maruti car. However, they disputed the negligence and quantum of compensation. M.A.C.A. No.1053/2016 : 4 : 4. The evidence in this case consists of Exts.A1 to A15 from the side of the appellants and no evidence was adduced by the respondent herein. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to negligence on the part of the 1[st] respondent and being the insurer, the 4[th] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.10,53,000/-, and the said amount was directed to be deposited by the insurance company with interest at the rate of 7.5% per annum from the date of petition till relaisation with costs. However, it is seen from the award that, in the operative portion, the direction to deposit the said amount was made against the 3[rd] respondent in the claim petition, which appears to be a mistake. From the observations, it is evident that the vehicle was covered with a valid insurance policy issued by the 4[th] respondent, and there was no finding regarding the violation of policy conditions. Therefore, the direction in the award can be safely interpreted as a direction to the 4th respondent to deposit the said amount. The appellants submit this appeal in such circumstances seeking enhancement of compensation. M.A.C.A. No.1053/2016 : 5 : 6. Heard Sri. P.J. Joe Paul, the learned counsel appearing for the appellants and Sri. P. Jacob Mathew, the learned counsel appearing for the 4[th] respondent insurance company. 7. The main dispute is relating to the quantum of compensation, particularly under the head of loss of dependency. The monthly income of the deceased, as claimed by the appellants, was Rs.25,000, which he used to earn, from his employment as a driver in Saudi Arabia. The appellants relied on Exts.A9 to A13 to substantiate the employment and income derived therefrom. Ext.A9 is the extract of the passport of the deceased, which would indicate that he was working abroad for six years until he died in the year 2008. Ext.A10 is the driving licence issued from Saudi whereas Ext.A11 is the driving licence issued from Kerala. Ext.A12 is the salary certificate issued by his employer, wherein the monthly salary is shown as 2600 Saudi Riyal, which would come to around Rs.25,000/- However, the tribunal accepted the monthly income only as Rs.4,000/-. From the materials placed on record, I find that the said amount is grossly inadequate. 8. The learned counsel for the insurance company challenges the acceptability of Ext.A12 salary certificate by pointing M.A.C.A. No.1053/2016 : 6 : out that the same was not properly attested by the Embassy. There is no veracity to the same, since it was not properly attested. However, the crucial aspect to be noticed in this regard is that, Ext.A9, the extract of passport coupled with Ext.A10, the driving licence issued by the authorities in Saudi Arabia, would clearly indicate that he was working abroad as a driver. Ofcourse it is true that, the monthly income as shown in Ext.A12 salary certificate as such cannot be accepted. But since the fact that, his employment as a driver is well established from the other documents, even if the monthly income shown in Ext.A12 is not accepted, the same has be reckoned by considering the circumstances prevailed in India at the relevant time, with respect to probable income from the said avocation. 9. In this regard, the learned counsel for the appellants places reliance upon the decision rendered by the Hon’ble Supreme Court in Manusha Sreekumar v. United India Insurance Co. Ltd. [2022 (5) KLT online 1024], wherein the question of monthly income in respect of a driver was considered. In the said decision, the Hon’ble Supreme Court, after placing reliance upon the notification issued by the Kerala Motor Transport Workers M.A.C.A. No.1053/2016 : 7 : Payment of Fare Wages Act, 1971, accepted monthly income of a driver in Kerala as Rs.15,600/- in respect of the accident occurred in the year 2015. In this case, the accident occurred in the year 2008. Therefore, even if the monthly income is scaled down, taking note of the fact that it was an accident in the year 2008 by making a deduction of Rs.500/- per year, the monthly income can be reasonably fixed as Rs.12,000/- in this case, and it is ordered accordingly. 10. As the deceased was aged 39 years, at the time of the accident, the compensation towards future prospects needs to be reconsidered. Thus, while reassessing the compensation with the above revised criteria, the compensation for loss of dependency would come to Rs.22,68,000/- [12000+40%) x12x15x3/4]. The amount already awarded is Rs.8,10,000/- and thus the additional compensation would come to Rs.14,58,000/-. In addition to the above, the appellants are entitled for a further sum of Rs.15,000/under the head of loss of estate, as no amount was granted by the tribunal. 9. At this juncture, the learned counsel for the insurance company would point out that, the tribunal has awarded excess M.A.C.A. No.1053/2016 : 8 : compensation under the head of funeral expenses as the amount awarded was Rs.25,000/-. The said contention has to be accepted as the actual amount fixed under the head is only Rs.15,000/-. Therefore, Rs.10,000/- is to be deducted. Similarly, an amount of Rs.1,00,000/- is awarded towards loss of consortium and a further sum of Rs.1,00,000/- is awarded towards loss of love and affection. As per Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram [(2018) 18 SCC 130] and United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780], the appellants being wife, children and mother are entitled to compensation for loss of consortium at the rate of Rs.40,000/each, thereby the total amount under this head would come to Rs.1,60,000/. Therefore, the amount under the head of loss of consortium is revised as Rs.1,60,000/- instead of Rs.1,00,000/-. However, in the light of the observations made in Satinder Kaur, wherein it was held that when compensation is awarded for loss of consortium, no further amount needs to be granted towards loss of love and affection, the amount of Rs.1,00,000/- awarded by the tribunal for loss of love and affection is to be deducted. Thus, the additional amount would come to Rs.14,23,000/- [(1458000+ M.A.C.A. No.1053/2016 : 9 : ## 15000+60000) – (100000+10000)]. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 16.10.2014 in OP(MV) No.269/2009 passed by the Additional Motor Accident Claims Tribunal, Alappuzha is hereby modified by granting an additional compensation of Rs.14,23,000/- (Rupees fourteen lakhs twenty three thousand only) and the 4[th] respondent/insurance company is directed to deposit the said amount along with interest at the rate as ordered by the tribunal with proportionate costs 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 439 days in filing the appeal was condoned subject to the condition that the appellants shall not be entitled for interest for the enhanced amount for the period of the delay, the insurance company shall be at liberty to exclude the said period while computing the interest on the additional amount. Sd/ZIYAD RAHMAN A.A. JUDGE ncd/