M.A.C.A. No.1220 of 2009 (P.K. Nazar & Saleena vs V.V. George, P.S. Automobiles (P) Ltd., National Insurance Company Ltd.)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 20[TH] DAY OF JULY 2023 / 29TH ASHADHA, 1945 ``` ``` MACA NO. 1220 OF 2009 ``` ``` AGAINST THE AWARD DATED 09.04.2008 IN O.P(M.V) NO.91/2002 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA ``` ## **`APPELLANTS/CLAIMANTS:`** ``` 1P.K.NAZAR, PAREPARAMBIL LAKSHAM VEEDU, KUSUMAGIRI (P.O.), KAKKANADU, ERNAKULAM., NOW RESIDING AT FITHA NIVAS, PONNADU (P.O.), ALAPPUZHA. 2SALEENA, D/O.P.K.NAZAR FITHA NIVAS SUNDARAKKATT, PONNADU (P.O.), MANNANCHERRY, ALAPPUZHA. BY ADV SRI.S.SHANAVAS KHAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1V.V.GEORGE S/O.V.K.VARGHESE, VALIYA PARAMBIL, VITTATHPOLA,, PALARIVATTOM (P.O), KOCHI-25. 2P.S.N.AUTOMOBILES (P) LTD. 35/278 N.H., PALARIVATTOM, KOCHI-25. 3NATIONAL INSURANCE COMPANY LTD. AMBIKA ARCADE, M.G.ROAD, THRISSUR. BY ADVS. SRI.P.M.JOSHI SRI.RAJESH THOMAS SMT.RAJI T.BHASKAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY ``` ``` HERD ON 20.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1220 of 2009 ``` 2 ``` ## **JUDGMENT** ## **Dated this the 20[th] day of July, 2023** This appeal is originated from an award passed by Additional Motor Accidents Claims Tribunal, Alappuzha (for short ‘the Tribunal’) on 09.04.2008 in O.P (M.V) No.91/2002. The appellants are the petitioners before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners and respondents 1 to 3 in accordance with their status in the Original Petition. 3. Appellants are the legal representatives of one Mrs.Shareefa Beevi who died in a motor vehicle accident occurred at about 11.10 a.m on 28.08.2001 at Vazhakkala in Palarivattom-Kakkanad main road. She was a pedestrian walking through the southern M.A.C.A.No.1220 of 2009 ``` 3 ``` side of the road from east to west and sustained injuries when the Motorcycle bearing Registration No.KL-7/TC 60/2000 hit her down. She was rushed to Ernakulam Medical Centre at Palarivattom for treatment and was shifted therefrom to General Hospital, Ernakulam. She was transported further to Medical College Hospital, Alappuzha for better management, but she died on 11.09.2001 during the course of treatment. Claiming for a sum of `7,00,000/- as compensation, the Original Petition above was moved by the legal representatives of the deceased before the Tribunal. 1[st] and 2[nd ] petitioners are the husband and major daughter of the deceased. 4. Summons was served on all respondents from the Tribunal. The rider of the Motorcycle, it’s registered owner and insurer were arrayed as ``` 4 ``` M.A.C.A.No.1220 of 2009 respondents 1 to 3 in the Original Petition. 1[st] respondent filed written statement admitting the motor accident and alleging negligence and carelessness on the part of the victim of the motor accident. The victim of the accident was alleged as sustained only some minor injuries and therefore her death was alleged as occurred not on account of the injuries sustained but only due to some pre-existing medical conditions. Compensation claimed under various heads were also disputed, being exorbitant in nature. 5. 2[nd] respondent also filed written statement admitting issuance of a valid policy for the Motorcycle involved in the motor accident but contended that the motor accident was occurred solely due to the careless crossing of the road by Mrs.Shareefa Beevi. Compensation claimed is also M.A.C.A.No.1220 of 2009 ``` 5 ``` disputed for being exorbitant in nature. The 3[rd] respondent did not file any written statement. 6. Petitioners adduced evidence before the Tribunal which consists of the oral evidence tendered by PW1 and PW2 and the documentary evidence adduced as Exts.A1 to A6. Ext.X1 series were treatment records summoned by the Tribunal from Medical College Hospital, Alappuzha. On the basis of the evidence adduced as above, the Tribunal found the 1[st] respondent responsible for causing the motor accident in question by his rash and negligent driving. Based on the medical documents on record, the Tribunal also found that the victim died on account of the fatal injuries received by her in the motor accident in question. It is also found that the petitioners are legal representatives of Mrs.Shareefa Beevi and therefore are entitled to get compensation M.A.C.A.No.1220 of 2009 ``` 6 ``` for her death in the motor accident. Accordingly, the Tribunal calculated the compensation and arrived at `2,20,000/- as the compensation payable to the petitioners. 3[rd] respondent was fixed with liability to indemnify the 2[nd] respondent. The Tribunal also directed the 3[rd] respondent to deposit the compensation arrived at with interest at the rate of 6% per annum from the date of filing of the Original Petition till the date of realisation. 7. Sri.S.Shanavas Khan, the learned counsel for the petitioners urged that only `1,500/- was fixed by the Tribunal as the monthly income of the deceased. According to him, as per the claims raised by the petitioners in the Original Petition, the victim of the motor accident was working as a prawn peeling employee in a factory and was earning `4,800/- monthly. M.A.C.A.No.1220 of 2009 ``` 7 ``` 8. A certificate was produced and marked in evidence as Ext.A5. According to the learned counsel, petitioners tendered oral evidence as PW1 and PW2 before the Tribunal and have also deposed in categorical terms that the deceased was a prawn peeling employee getting `4,800/- monthly. The contention raised was that the evidence adduced as above was totally discarded by the Tribunal and opted to fix `1,500/- as the monthly income. According to him, the Tribunal is unjustified in fixing the monthly income in such a manner. He canvassed for a modification of the monthly income relying on the evidence tendered by PW1 and PW2 and Ext.A5. 9. The learned counsel has also pointed out that as compensation towards loss of consortium, loss of estate and funeral expenses also the Tribunal M.A.C.A.No.1220 of 2009 ``` 8 ``` failed to award the sum for which the petitioners are entitled to as per the directions issued by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)].** According to him, as directed in the above case, petitioners are entitled to get `44,000/- per head towards loss of consortium and `16,500/- each towards loss of estate and funeral expenses. The learned counsel canvassed for a modification of the compensation accordingly. 10. The Tribunal in the view of this Court is totally unjustified and erred in fixing only `1,500/- as the monthly income, discarding the oral as well as documentary evidence on record in that regard. When the evidence tendered by the petitioners is appreciated, this Court finds it reasonable to consider `3,000/- as the monthly income and do accordingly. M.A.C.A.No.1220 of 2009 ``` 9 ``` 11. The deceased was aged 35 years at the relevant time of her death and being an employee having fixed salary, 40% is added to the monthly income fixed in consideration of future prospects. Thus `4,200/- [`3,000/- + (40% of `3,000/-)] is arrived at. ‘15’ adopted by the Tribunal as multiplier is replaced by ‘16’, the correct one. Deceased was survived by two family members and therefore, 1/3[rd] is deducted from the monthly income fixed, in consideration of personal expenditure liable to be met with by the victim, had she been alive. When a re-assessment of compensation for dependency is done on the basis of the above factors, `5,37,600/(`4,200/- x 12 x 16 x 2/3) is arrived at. `1,80,000/stood awarded by the Tribunal when deducted therefrom, petitioners will get `3,57,600/- M.A.C.A.No.1220 of 2009 ``` 10 ``` (`5,37,600/- - `1,80,000/-) as compensation towards loss of dependency. 12. As rightly pointed out by the learned counsel, each of the petitioners are entitled to get Rs.44,000/- as compensation towards loss of consortium and `16,500/- each towards loss of estate and funeral expenses. Thus `88,000/(`44,000/- x 2) is arrived at. `5,000/- stood awarded by the Tribunal as compensation in favour of the 1[st] petitioner when adjusted against the above sum, petitioners will get `83,000/- in total as additional compensation towards loss of consortium. The Tribunal has awarded `5,000/- towards funeral expenses and failed to award any sum towards loss of estate. Therefore, `16,500/- each is awarded by this Court under the respective heads. Thus, petitioners will get `16,500/- as compensation M.A.C.A.No.1220 of 2009 ``` 11 ``` towards loss of estate and `11,500/- as additional compensation towards funeral expenses. 13. Petitioners are disentitled to get `10,000/stood awarded by the Tribunal as compensation towards loss of love and affection and `15,000/-, towards pain and suffering. Therefore, `25,000/(`10,000/- + `15,000/-) in total stood awarded by the Tribunal is deducted from the additional compensation found payable. 14. In the above manner of calculation afresh, `4,43,600/- [(`3,57,600/- + `83,000/- + `11,500/- + `16,500/-) - `25,000/-] (Rupees Four lakhs forty three thousand six hundred only) is arrived at as the total additional compensation payable to the petitioners. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of deposit, excluding 111 days, M.A.C.A.No.1220 of 2009 ``` 12 ``` being the period of delay occurred in filing the appeal on hand. 16. 3[rd] respondent shall pay the above sum in favour of the petitioners, in equal proportion within two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NAB