MACA Nos. 659/2013 & 900/2013, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 12[TH] DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943** **MACA NO. 659 OF 2013** **AGAINST THE AWARD DATED 21.12.2012 IN OP(MV) 858/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI** **APPELLANT/3RD RESPONDENT :** **M/S.ICICI LOMBARD GENERAL INSURANCE COM. LTD., Y.M.C.A. CROSS ROAD, KOZHIKODE. BY ADV. SRI.R.AJITHKUMAR VARMA** ## **RESPONDENTS/CLAIMANTS & RESPONDENTS 1, 2 & 4 :** - **1 VALLY W/O.CHARU, VADAKKETHODI HOUSE, ELAMKULAM.P.O., MALAPPURAM DISTRICT. PIN-676 122.** - **2 KALYANI W/O.KODAN, KONTHATHUPARAMBIL HOUSE, VILAYOOR.P.O., KOOPAM (VIA), PALAKKAD DISTRICT. PIN-678 014.** - **3 KRISHNAN S/O.LATE PANHAN, KOORYIL @ KOORIYILTHODI, ALIPARAMBU, EDATHARA, THOOTHA.P.O., MALAPPURAM DISTRICT. PIN-679 357.** - **4 JANAKI D/O.LATE PANHAN, KOORYIL @ KOORIYILTHODI, ALIPARAMBU, EDATHARA, THOOTHA.P.O., MALAPPURAM DISTRICT. PIN-679 357.** - **5 MADHAVI D/O.LATE PANHAN, KOORYIL @ KOORIYILTHODI, ALIPARAMBU, EDATHARA, THOOTHA.P.O., MALAPPURAM DISTRICT. PIN-679 357.** - **6 AHAMMED KABEER S/O.MUHAMMED, OTTETH HOUSE, THOOTHA.P.O., MALAPPURAM DISTRICT. 678 357.** - **7 SALIH ENASSEN PALLIYALIL HOUSE, PARAL.P.O., ANAMANGAD, MALAPPURAM DISTRICT. PIN-670 671.** M.A.C.A.Nos.659/13 & 900/13 2 **8 KUNHIMALU KOORYIL @ KOORIYILTHODI, ALIPARAMBU, EDATHARA, THOOTHA.P.O., MALAPPURAM DISTRICT. PIN-679 357. BY ADVS. SRI.K.ABDUL JAWAD SRI.MATHEW A KUZHALANADAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2021 ALONG WITH M.A.C.A.NO.900/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 M.A.C.A.Nos.659/13 & 900/13 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 12[TH] DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943 MACA NO. 900 OF 2013** **AGAINST THE COMMON AWARD DATED 21.12.2012 IN OPMV 858/2010** **OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANTS/PETITIONERS** - **1 VALLY AGED 67 YEARS** - **W/O.CHARU, VADAKKETHODI HOUSE, ELAMKULAM PO, MALAPPURAM DIST** - **2 KALYANI AGED 62 YEARS W/O.KODAN, KONTHATHUPARAMBIL HOUSE, VILAYOOR P O, KOPPAM VIA, PALAKKAD DIST** - **3 KRISHNAN AGED 59 YEARS S/O.LATE PANHAN, KOORYIL @ KOORIYILTHODI ALIPARAMBU, EDATHARA, THOOTHA P O, MALAPURAM DIST** - **4 JANAKI AGED 57 YEARS** - **D/O.LATE PANHAN, KOORYIL @ KORIYILTHODI ,ALIPARAMBU, EDATHARA, THOOTHA P O, MALAPPURAM DIST** - **5 MADHAVI AGED 51 YEARS D/O.LATE PANHAN, KOORYIL 2 KOORIYILTHODI ALIPARAMBU, EDATHARA, THOOTHA P.O,MALAPPURAM DIST** **BY ADVS. SRI.K.ABDUL JAWAD SRI.MATHEW A KUZHALANADAN SMT.N.M.SHEENA DAS** ## **RESPONDENTS/3RD AND 4TH RESPONDENTS** **1 I.C.I.C.I. LOMBARD GENERAL INSURANCE CO.LTD Y M C A CORSS ROAD, KOZHIKODE-673020.** 4 M.A.C.A.Nos.659/13 & 900/13 - **2 KUNHIMALU** **D/O.PANHAN, KOORIYIL @ KOORIYILTHODI HOUSE, ALIPARAMBU,THOOTA P O, MALAPPURAM DIST-676505 BY ADV SRI.R.AJITH KUMAR (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2021 ALONG WITH M.A.C.A.NO.659/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 M.A.C.A.Nos.659/13 & 900/13 ## _**A. BADHARUDEEN, J.**_ ================================ _M.A.C.A No.659 of 2013 and M.A.C.A No.900 of 2013_ ================================ _Dated this the 12[th] day of November, 2021_ ## _**J U D G M E N T**_ The award in O.P(MV).No.858/2010 dated 21.12.2012 on the file of the Motor Accidents Claims Tribunal, Manjeri is under challenge in these appeals. M.A.C.A.No.900/2013 is an appeal at the instance of the petitioners; whereas the 3rd respondent insurance company filed M.A.C.A.No.659/2013 challenging the compensation awarded. 2. Heard the learned counsel on both sides. 3. Brief facts: The claim for compensation is made by the adult brothers and sisters of the deceased, an unmarried woman. According to them, while the deceased was walking along the edge of Perinthalmanna-Pattambi road in front of the Sub-Registrar's office at about 6.30 p.m on 22.01.2010, a bus knocked her down 6 M.A.C.A.Nos.659/13 & 900/13 causing fatal injuries to her to which she succumbed soon thereafter. The petitioners alleged that the accident was the result of the rash and negligent driving of the driver of the bus. Apart from the said driver, the owner and insurer of the offending vehicle faced their claim for compensation as respondents 1 to 3, 4[th] respondent is yet another sister of the deceased woman. 4. 1[st] respondent remained exparte in the proceedings before the Tribunal. The 2[nd] respondent admitted the accident. Policy with the 3[rd] respondent was highlighted. 3[rd] respondent, the insurance company admitted policy. But disputed the amount and liability. 5. It is submitted by the learned counsel for the insurance company that the petitioners being siblings are not dependents and therefore they are not entitled to get compensation under Section 166 of the Motor Vehicles Act. It is submitted further that in the petition there is no pleadings to the effect that they are dependents. It is submitted further that the Tribunal also found that the petitioners are not dependents, but awarded Rs.1,50,000/as compensation. Thus the said finding is incorrect. 7 M.A.C.A.Nos.659/13 & 900/13 6. Refuting this argument, the learned counsel for the appellants would submit that the petitioners are dependents being siblings and the compensation awarded by the Tribunal by fixing the monthly income at Rs.2,000/- is extremely on the lower side and the appellants are entitled to get compensation by fixing the monthly income of the deceased at Rs.4,500/- claimed in the petition placing the deceased in the status of a coolie worker. 7. While appreciating the contention raised by the learned counsel for the insurance company, it has to be noted that in para.25 of the petition, the petitioners specifically asserted that "the deceased was the only breadwinner of the family and the family was having high hopes about longevity of her life. But all the hopes of the family shattered. " Thus the submission made by the learned counsel for the insurance company on asserting that there is no pleading to the effect that the appellants are not the dependents, cannot be accepted. It is true that no oral evidence adduced in this case and the documents produced by the petitioner got marked as Exts.A1 to A4 by the Tribunal to decide the case. No documents marked on the side of the insurance 8 M.A.C.A.Nos.659/13 & 900/13 company. 8. Though the learned counsel for the insurance company argued at length to convince this Court that the petitioners are not dependents of the deceased, I cannot agree with the said argument for many reasons. First of all I would like to observe that when an unmarried person dies in a motor accident, the Tribunal or a Court cannot hold that the siblings are not at all the dependents unless convincing evidence in this regard is adduced to establish otherwise. Secondly, nobody can rule out the help and assistance of an unmarried person to other siblings in a family set up prevailing in the form of a food web, particularly in the State of Kerala and therefore I am to hold that the contention raised by the insurance company that the appellants are not dependents cannot be sustained and the said finding entered by the Tribunal is erroneous and the same is set aside. Consequently it is held that the petitioners are the dependents of deceased Devaki. 9. Coming to the quantum of compensation, the petitioners claimed Rs.4,500/- as monthly income of the deceased being a coolie worker. But the Tribunal fixed the income at 9 M.A.C.A.Nos.659/13 & 900/13 Rs.2,000/-. Following the ratio in [2011 (13) SCC 236], _**Ramachandrappa v. Manager, Royal Sundaram Alliance**_ and [AIR 2014 SC 1052 : (2014) 2 SCC 735], _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd.,**_ where the Apex Court fixed the monthly income of a coolie at Rs.4,500/-, there is no justification to deny monthly income claimed as Rs.4,500/- in this case, wherein the accident was on 22.01.2010. Therefore, the monthly income for the purpose of calculating loss of dependency is refixed as Rs.4,500/-. Admittedly, the deceased has been placed in the age group between 50-55 and the same is not disputed. Therefore, the 10% addition towards future prospects following the ratio in [(2017) 16 SCC 680], _**National Insurance Company Limited v. Pranay Sethi & Ors.**_ also to be made. Therefore, Rs.4,950/- is fixed as the monthly income. Thus the loss of dependency income would come to: 4950 X 12 X 11 X ½ = Rs.3,26,700/- The Tribunal granted Rs.1,32,000/- as loss of dependency. Hence and **Rs.1,94,700/- more** is awarded under the head **loss of** 10 M.A.C.A.Nos.659/13 & 900/13 **dependency** . Apart from that, Rs.15,000/- under the head loss of estate and Rs.15,000/- under the head funeral expenses are also liable to be granted in this case. Therefore, under the head **loss of** **estate** , **Rs.10,000/- more** is granted excluding Rs.5,000/- granted by the Tribunal. It is seen that the Tribunal has granted Rs.3,000/- under `any other heads'. Adjusting the said amount of Rs.3,000/- under the head ` **funeral expenses** ', **Rs.12,000/- more** is granted under that head. The award would depict that Rs.10,000/- was granted under the head l **oss of love and affection** and the same is impermissible as per the ratio in [AIR 2020 SC 3076], _**United India Insurance Co. Ltd. v. Satinder Kaur.**_ Therefore, **Rs.10,000/-** is **deducted** . No amount under the head loss of consortium is entitled by the petitioners. 10. In the result, M.A.C.A.No.659/2013 at the instance of the insurance company stands dismissed. M.A.C.A.No.900/2013 stands allowed in part. It is held that the appellants/petitioners and the 2nd respondent/4th respondent are entitled to get Rs.2,06,700/- (Rupees Two lakh six thousand seven hundred only) as enhanced compensation and the 11 M.A.C.A.Nos.659/13 & 900/13 award impugned is modified as above with the same rate of interest granted by the Tribunal from the date of petition till the date of deposit or realisation. Since court fee for Rs.3,00,000/was valued by the appellants, an amount of Rs.570/- (Rupees Five hundred and seventy only) more is to be deposited by the insurer, being the court fee payable in respect of enhanced compensation in the name of M.A.C.T, Manjeri by a separate cheque. The insurance company is directed to deposit the balance amount in the name of the appellants/petitioners and the 2nd respondent/4th respondent in equal proportion within two months from today and they are at liberty to release the same, on deposit. **==> picture [213 x 37] intentionally omitted <==** _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_