MACA Nos. 491 of 2015 & 1738 of 2015, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 04TH DAY OF APRIL 2019 / 14TH CHAITHRA, 1941** ## **MACA.No. 491 of 2015** **AGAINST THE AWARD IN OPMV 693/2013 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR DATED 24-09-2014** ## **APPELLANT/THIRD PARTY:** **1 SHAIKKA NASRIN (INFANT) AGED 1, REPRESENTED BY HER MOTHER AND NEXT FRIEND SALMA,D/O.KUNHI BAVA, MAYINTAKATH, PONNANI, MALAPPURAM DIST. 679 577.** **2 SALMA W/O LATE MOHAMMED NOUFAL,D/O KUNHI BAVA RESIDING AT MAYINTAKATH,PONNANI,MALAPPURAM DIST.679577 (R4 IS TRANSPOSED AS ADDL.2ND APPELLANT AS PER ORDER DATED 10/12/2018 IN IA NO.3/2018)** **BY ADVS. SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SRI.JOBI.A.THAMPI** ## **RESPONDENTS/RESPONDENTS 1 TO 3 & PETITIONERS 1,2 & 3:** - **1 ALI K. S/O.BAPPU, KIZHAKKATH HOUSE, PUDUPONNANI,PONNANI SOUTH P.O., MALAPPURAM DIST. 679 586.** - **2 ABDUL KAREEM S/O.P.K.HASSANKUTTY, KALLAYIL HOUSE, EDAKAZHIYUR,CHAVAKKAD P.O., TRISSUR DIST. 680 506.** - **3 THE ORIENTAL INSURANCE CO.LTD DUNE CENTRE, TOWN HALL ROAD, KUNNAMKULAM,TRISSUR DIST. 680 503.** - **4 SALMA W/O.LATE MOHAMMED NOUFAL, D/O.KUNHI BAVA,RESIDING AT MAYINTAKATH, PONNANI, MALAPPURAMDIST. 679 577(TRANSPOSED AS ADDL.2ND APPELLANT)** MACA.No. 491 of 2015 2 **5 MOIDEEN AGED 52 YEARS S/O.MOHAMMED, KUTTIMAKKANTAKATH, PONNANI, MALAPPURAM DISTRICT - 679 577.** **6 AULATH AGED 41 YEARS W/O.MOIDEEN, KUTTIMAKKANTAKATH, PONNANI, MALAPPURAM DIST. 679 577. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.C.M.MOHAMMED IQUABAL SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.04.2019, ALONG WITH MACA.1738/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 491 of 2015 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 04TH DAY OF APRIL 2019 / 14TH CHAITHRA, 1941** **MACA.No. 1738 of 2015** **AGAINST THE AWARD IN OPMV 693/2013 of MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR DATED 24-09-2014** ## **APPELLANT/1ST PETITIONER:** **SALMA AGED 23 YEARS W/O. LATE MOHAMMED NOUFAL, D/O. KUNHI BAVA, MAYINTAKATH, PONNANI, MALAPPURAM DIST - 679 577.** **BY ADVS. SMT.AYSHA YOUSEFF SMT.MOLLY JACOB SRI.JOBI.A.THAMPI** ## **RESPONDENTS/RESPONDENTS & APPLICANTS NOS.2 & 3:** |**1**|**ALI K.**| |---|---| ||**S/O. BAPPU, KIZHAKKATH HOUSE, PUDUPONNANI, PONNANI**| ||**SOUTH P.O., MALAPPURAM DIST - 679 586.**| |**2**|**ABDUL KAREEM**| ||**S/O. P.K. HASSANKUTTY, KALLAYIL HOUSE, EDAKAZHIYUR,**| ||**CHAVAKKAD P.O., TRISSUR DIST -680 506.**| |**3**|**THE ORIENTAL INSURANCE CO. LIMITED**| ||**DUNE CENTRE, TOWN HALL ROAD, KUNNAMKULAM, TRISSUR**| ||**DIST -680 503.**| |**4**|**MOIDEEN**| ||**52 YEARS**| ||**S/O. MOHAMMED, KUTTIMAKKANTAKATH, PONNANI,**| ||**MALAPPURAM - 679 586.**| |**5**|**AULATH**| ||**41 YEARS,W/O. MOIDEEN, KUTTIMAKKANTAKATH, PONNANI,**| MACA.No. 491 of 2015 4 **MALAPPURAM DIST - 679 586.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.C.M.MOHAMMED IQUABAL SRI.K.B.ARUNKUMAR SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.04.2019, ALONG WITH MACA.491/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 491 of 2015 5 ## M.A.C.A Nos.491 of 2015 & 1738 of 2015 ## **J U D G M E N T** One Muhammad Noufal died in a motor accident took place on 07.07.2013. He was aged 27 years at the time of accident. His wife and parents preferred a claim petition before the Motor Accidents Claims Tribunal for compensation. Rs.15,00,000/- was the claim made in the proceedings. The deceased was in fact riding a motorcycle. The accident occurred on account of the collision of the motor cycle ridden by the deceased with the motorcycle ridden by the first respondent in the claim petition. The Tribunal found that the deceased was negligent to the tune of 20% in the matter of contributing the accident. As regards the compensation, the Tribunal found that the claimants are entitled to a sum of Rs.10,62,000/-. However, in the light of the finding regarding the contributory negligence, the Tribunal permitted the claimants to realise only 80% of the compensation from the insurer of the offending vehicle. M.A.C.A No.1738 of 2015 is one filed by the wife of the deceased aggrieved by the said award of the Tribunal. The wife of the deceased was pregnant at the time of accident and she gave birth to a female child after the accident. The child born to the deceased is also aggrieved by the award passed by the Tribunal. MACA.No. 491 of 2015 6 ## M.A.C.A No.491 of 2015 is one preferred by the child the deceased. 2. Heard the learned counsel for the appellants as also the learned counsel for the respondents. 3. A crime was registered in connection with the accident and after due investigation, the police charge sheeted the second respondent in the claim petition for having caused the accident on account of negligent driving. The Tribunal found that the deceased was not wearing a helmet at the time of accident and the same is also a reason for the fatal injuries caused to him. It is in the light of the above finding that the Tribunal found contributory negligence on the part of the deceased to the tune of 20%. There is nothing on record to indicate that the deceased was not wearing a helmet at the time of accident. In the absence of materials, according to me, the Tribunal was not justified in attributing contributory negligence on the part of the deceased. The finding regarding contributory negligence rendered by the Tribunal is, therefore, vacated. 4. Coming to the dispute relating to the quantum of compensation, it is seen that the specific pleading of the claimants in the claim petition was that the deceased was working in a Gulf country as a driver and was earning a sum of Rs.50,000/-. Though the claimants have produced the salary certificate issued to the deceased by his employer abroad, the Tribunal did not accept the same as it was MACA.No. 491 of 2015 7 not proved by them by examining the person who issued the same. The Tribunal cannot be found fault with for having not accepted the salary certificate produced by the claimants as they have failed to prove the same in the proceedings. Ext.A8 is the passport of the deceased. Ext.A8 indicates that the deceased was holding a work visa in Abu Dhabi. The work visa of the deceased as endorsed in his passport indicates that his work visa was valid upto 16.02.2015. Ext.A9 is the driving licence obtained by the deceased from the competent authority of Abu Dhabi valid up to 08.10.2018. It is evident from the aforesaid two documents that the case set out by the claimants that the deceased was working abroad is correct. However, in the absence of any evidence as regards income, having regard to the fact that the accident took place in the year 2013, I deem it appropriate to fix the income of the deceased at Rs.12,500/-. Had the deceased continued in his employment, he would have certainly earned more money. As such, compensation for loss of dependency is to be calculated having regard to the future prospects of the deceased also. There is no dispute as regards the multiplier to be applied. The multiplier to be applied for a person aged 27 years is '17'. As noted, the wife of the deceased delivered a child immediately after the accident. The dependants of the deceased, therefore, exceed three in number. One fourth of the income, therefore, has to be taken towards personal MACA.No. 491 of 2015 8 expenses. If compensation for loss of dependency is worked out by reckoning 40% of the income towards future prospects as held by the Apex court in **National Insurance Company Ltd V. Pranay Sethi** [2017(4) KLT 662 (SC)], the compensation for loss of dependency payable to the claimants would come to Rs.26,77,500/(Rs.12,500x140/100x12x17x3/4). The claimants were granted only a sum of Rs.8,16,000/- by way of compensation under the said head. The claimants are, therefore, entitled to a further sum of Rs.18,61,500/- 5. It is seen that a sum of Rs.1,00,000/- was granted by the Tribunal to the wife of the deceased towards compensation for loss of consortium and a sum of Rs.1,00,000/- to the claimants towards compensation for loss of love and affection. In the light of the decision of the Apex court in **Pranay Sethi** (supra), a sum of Rs.60,000/granted by the Tribunal to the wife of the deceased towards loss of consortium is in excess. At the same time, the parents of the deceased and the daughter of the deceased who was in the womb of her mother at the time of accident are entitled to filial and parental consortium which I fix in the light of the decision of the Apex Court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), at the rate of Rs.40,000/-each. In other words, out of the sum of Rs.2,00,000/- granted by the Tribunal towards compensation for loss of consortium and loss of love and affection, they are entitled to a sum of MACA.No. 491 of 2015 9 Rs.1,60,000/- and only a sum of Rs.40,000/- is in excess. It is also seen that as against the claim for loss of estate and funeral expenses, the Tribunal has granted only a sum of Rs.25,000/-. The claimants are, therefore, entitled to a further sum of Rs.5,000/- under the said heads. The excess compensation granted would, therefore, come to Rs.35,000/-. As it is found that the claimants are entitled to additional compensation, the excess compensation granted by the Tribunal can be adjusted against additional compensation found payable to them. The total additional compensation payable to the claimants would, therefore, come to 18,26,500/-(18,61,500-35,000). In the result, the appeals are allowed in part, directing the insurer to pay a sum of 18,26,500/- towards additional compensation. In the light of the finding rendered by this court as regards the contributory negligence, the claimants would be entitled to the entire compensation awarded by the Tribunal. The minor daughter of the deceased is permitted to move the Tribunal for appropriate directions as regards her share. Needless to say, the claimants will be entitled to interest for the additional amount of compensation at the rate of 7.5%. ## **Sd/-** ## **P.B.SURESH KUMAR** **JUDGE** Mn