MACA.No.1993/2015 & 2439/14

MACA.No.1993/2015 & 2439/14 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945_ _MACA NO. 2439 OF 2014_ _AGAINST THE ORDER/JUDGMENT OPMV 979/2010 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL VADAKARA_ ## _APPELLANTS/PETITIONER:_ _1 ABOOBACKER(*DIED), AGED 66 YEARS, S/O.ABDULLA, VALAPPILMEETHAL HOUSE, PURANKARA, VATAKARA AMSOM DESOM, VATAKARA BEACH P.O., VATAKARA TALUK, KOZHIKODE DISTRICT._ _2 BEVI V.M., AGED 56 YEARS, W/O.ABOOBACKER, VALAPPILMEETHAL HOUSE, PURANKARA, VATAKARA AMSOM DESOM, VATAKARA BEACH P.O., VATAKARA TALUK,KOZHIKODE DISTRICT._ _3 RASEENAMALIYEKKAL, AGED 26 YEARS, W/O.LATE ASHKAR, RASEENAMANSIL, NADAPURAM ROAD, MADAPPALLY P.O., ONCHIYAM AMSON DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT._ _4 FATHIMATHSALIHA, AGED 10 YEARS, D/O.LATE ASHKAR, DATE OF BIRTH :8/9/2000, MALIYEKKAL, RASEENAMANSIL, NADAPURAM ROAD, MADAPPALLY P.O., ONCHIYAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT._ _5 MUHAMMEDASIF V.M., AGED 8 YEARS, S/O.LATE ASHKAR, DATE OF BIRTH :25/1/2002, MALIYEKKAL, RASEENAMANSIL, NADAPURAM ROAD, MADAPPALLY P.O., ONCHIYAM AMSOM DESOM, VATAKARA_ MACA.No.1993/2015 & 2439/14 2 _TALUK, KOZHIKODE DISTRICT_ - _6 MUHAMMEDAMMAR.V.M._ _AGED 5 YEARS S/O.LATE ASHKAR, DATE OF BIRTH :8/5/2005, MALIYEKKAL, RASEENAMANSIL, NADAPURAM ROAD, MADAPPALLY P.O., ONCHIYAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT_ _(*APPELLANTS 2 TO 6 ARE RECORDED AS THE LEGAL HEIRS/DEPENDANTS OF THE DECEASED FIRST APPELLANT AS PER ORDER DATED 27.06.2023 IN MEMO DATED 24.08.2022 IN MACA 2439/2014)_ _BY ADV.ZUBAIR PULIKKOOL_ ## _RESPONDENTS/RESPONDENTS:_ _1 THAHA MUHAMMED E.A., S/O.ABDULLA, ETTUNATHARIPPAYIL HOUSE, MAMBARAM P.O., THALASSERY, KANNUR DISTRICT, PIN: 670 741._ - _2 VASUDEVAN.C., PULIYANILAYAM, C.T.PALAYAM, KOLLENGODE, PALAKKAD, PIN: 678 506._ - _3 SREEJITH T.K., S/O.SREEDHARAN, VADAKKEYKALAPURATH HOUSE, CHKLI, THALASSERY, KANNUR DISTRICT, PIN: 670 672._ - _4 RELIANCE GENERAL INSURANCE CO. LTD., BRANCH OFFICE, FLOOR MANGALAM TOWERS, OPP. TOWN BUS STAND, T.B.ROAD, PALAKKAD, PIN: 675 014._ _BY ADVS.SRI.K.B.RAMANAND GEORGE A.CHERIAN LATHA SUSAN CHERIAN(K/412/2008)_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2024, ALONG WITH MACA.1993/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1993/2015 & 2439/14 3 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945_ ## _MACA NO. 1993 OF 2015_ _AGAINST THE ORDER/JUDGMENT OPMV 979/2010 OF MOTOR ACCIDENT_ ## _CLAIMS TRIBUNAL VADAKARA_ ## _APPELLANT/4TH RESPONDENT:_ _RELIANCE GENERAL INSURANCE CO.LTD., PALAKKAD, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM._ _BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI_ ## _RESPONDENTS/CLAIMANTS:_ - _1 ABOOBACKER, S/O.ABDULLA, VALAPPIL MEETHAL HOUSE, PURANKARA, VATAKARA AMSOM DESOM, VATAKARA BEACH(PO), VATAKARA TALUK, KOZHIKODE DISTRICT. PIN-673 513._ _2 BEVI V.M, W/O.ABOOBACKER, VALAPPIL MEETHAL HOUSE, PURANKARA, VATAKARA AMSOM DESOM, VATAKARA BEACH(PO), VATAKARA TALUK, KOZHIKODE DISTRICT. PIN-673 513._ - _3 RASEENA MALIYEKKAL,_ _W/O.LATE ASHKAR, RASEENA MANZIL, NADAPURAM ROAD, MADAPPALLY(PO), ONCHIYAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. PIN-673 513._ MACA.No.1993/2015 & 2439/14 4 _4 FATHIMATH SALIHA, D/O.LATE ASHKAR, DATE OF BIRTH: 08.06.2000, MALIYEKKAL, RASEENA MANZIL, NADAPURAM ROAD, MADAPPALLY(PO), ONCHIYAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. PIN-673 513._ _5 MUHAMMED ASIF V.M, S/O.LATE ASHKAR, DATE OF BIRTH: 25.01.2002, MALIYEKKAL, RASEENA MANZIL, NADAPURAM ROAD, MADAPPALLY(PO), ONCHIYAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. PIN-673 513._ _6 MUHAMMAD AMMAR V.M, S/O.LATE ASHKAR, DATE OF BIRTH: 08.05.2005, MALIYEKKAL, RASEENA MANZIL, NADAPURAM ROAD, MADAPPALLY(PO), ONCHIYAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. PIN-673 513._ _(4TH,5TH,6TH RESPONDENTS ARE MINORS REPRESENTED BY 3RD RESPONDENT MOTHER AND GUARDIAN RASEENA MALIYEKKAL)._ _BY ADVS. SRI.ZUBAIR PULIKKOOL_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2024, ALONG WITH MACA.2439/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1993/2015 & 2439/14 5 ## **JUDGMENT** ## **[MACA Nos.2439/2014, 1993/2015]** Both these appeals arise from O.P. (MV).No.979 of 2010 on the file of the Motor Accidents Claims Tribunal, Vadakara. The appellants in M.A.C.A. No.2439 of 2014 were the petitioners in O.P. (MV).No.979 of 2010 on the file of the Motor Accidents Claims Tribunal, Vadakara. The said claim petition was submitted by them seeking compensation for the death of one Askar due to the injuries sustained in a motor accident that occurred on 01.06.2010. The deceased was the son of claimants 1 and 2, the husband of the 3[rd] claimant and the father of claimant Nos.4 to 6. During the pendency of this appeal, the 1[st] appellant/1[st] claimant, the father of the deceased, passed away, and the appellants 2 to 6 were declared as the legal heirs of the deceased 1[st] appellant. According to the appellants, the accident occurred when he was knocked down by a car bearing registration No.KL-09U-9599, owned by the 1st respondent and insured with the 4th respondent. It was contended that the deceased was a wholesale fish merchant aged 35 years with a monthly income of Rs.20,000/-. MACA.No.1993/2015 & 2439/14 6 2. The 4[th] respondent filed a written statement admitting the coverage of the policy for the car. However, they disputed the negligence as well as the quantum of compensation claimed. 3. To substantiate the contentions, the 3[rd] appellant was examined as PW1, and as documentary evidence, Ext.A1 to A10 were marked. No evidence was adduced by the respondents. After examining the materials placed on record, the Tribunal found that the accident occurred due to the negligence of the driver of the car and being the insurer, the 4[th] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.11,39,100/- and the 4[th] respondent was directed to deposit the said amount with interest at the rate of 7.5% per annum from the date of petition till realization with proportionate cost. 4. Challenging the quantum of compensation, the 4[th] respondent Insurance Company filed M.A.C.A. No.1993 of 2015, whereas M.A.C.A. No.2439 of 2014 was submitted by the claimants seeking enhancement of compensation. 5. Heard Sri.Zubair Pulikool, learned counsel for the MACA.No.1993/2015 & 2439/14 7 appellants/claimants in M.A.C.A. No.2439 of 2014 and Smt.Latha Susan Cherian, learned counsel for the 4[th] respondent/appellant in M.A.C.A. No.1993 of 2015. 6. 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 amount fixed by the Tribunal is grossly inadequate, the 4[th] respondent/Insurance Company contends that the amount is excessive and requires re-consideration. 7. After carefully going through the materials placed on record, I find some force in the contention put forward by the learned counsel for the claimants, even though in certain heads, the amount awarded by the Tribunal is slightly on the higher side. The first aspect to be considered is the compensation for loss of dependency. One of the essential elements for determining the compensation in this regard is the monthly income, which was taken as Rs.4,500/-, even though the claim in this regard was for Rs.20,000/-. The appellants/claimants contended that the deceased was a wholesale fish vendor with a monthly income of Rs.20,000/-. No evidence was adduced to show the amount which he used to earn from his business as MACA.No.1993/2015 & 2439/14 8 referred to above. However, the learned counsel places reliance upon Ext.A5 and A6 identity cards issued by the Secretary, Vadakara Municipality and by the ‘Kozhikode Jilla Mathsya Vitharana Samskarana Thozhilali Union’. Ext.A6 would indicate that he was granted permission to conduct the business of his own within the limits of the Corporation. Ext.A4 are the Tax receipts (two in numbers) evidencing that the Professional Tax and charges were being collected from the petitioner as part of the business. Thus, even though the documents would not indicate the monthly income that the deceased received from his business, it would certainly indicate that he was conducting an establishment of his own. It is to be noted in this regard that when the method of computation of monthly income evolved from the **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.[2011 (13) SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Co. [2014 (2) SCC 735]** is taken into consideration; in respect of an accident that occurred in the year 2010 the monthly income of an ordinary worker without any skills can be fixed as Rs.7,500/-. Since there is some evidence in this case to the effect that the deceased was conducting an establishment of his MACA.No.1993/2015 & 2439/14 9 own related to fish vending, a slightly higher income can be taken. Moreover, the learned counsel for the appellant also pointed out that the deceased was maintaining a family consisting of seven members, including himself. When all the aforesaid aspects are taken into consideration, I am of the view that Rs.10,000/- could be fixed as a reasonable monthly income for assessing the compensation. As the deceased was aged only 35 years, 40% of the monthly income should be added towards future prospects and the deduction for personal expenses should be ¼ as he left behind six dependents. When the compensation is re-assessed on the basis of the said criteria, the amount would come to Rs.20,16,000/- [(10000+40%) x 12 x 16 x ¾]. The amount already awarded by the Tribunal is Rs.9,21,600/-; thus, the additional compensation comes to Rs.10,94,400/-. 8. In addition to that, the claimants are also entitled to a further sum of Rs.5,000/- under the head of loss of estate as the amount awarded by the Tribunal is only Rs.10,000/-. Thus, Rs.5,000/- is awarded under the said head. Similarly, the claimants, being the parents, wife and children, are entitled for compensation for loss of consortium, in the light of **Magma** MACA.No.1993/2015 & 2439/14 10 **General Insurance Co.Ltd. v. Nanu Ram & Others 2018 (3) K.L.T. Online 3095 (S.C.) and United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760],** at the rate of Rs.40,000/- each, thereby make out a total compensation of Rs.2,40,000/-. 9. The Tribunal awarded an amount of Rs.1,00,000/towards loss of consortium and a further sum of Rs.50,000/towards loss of love and affection. It is held in **Satinder Kaur (supra)** when compensation for loss of consortium is awarded, no separate compensation needs to be granted for loss of love and affection. Therefore, the amount of Rs.50,000/- granted by the Tribunal towards loss of love and affection can be adjusted towards the loss of consortium fixed by this Court. Therefore, the additional compensation under the head loss of the consortium would come to Rs.90,000/-. [240000(100000+50000)]. In addition to that, taking note of the injuries sustained by the deceased, which resulted in his death, a notional amount of Rs.10,000/- can be granted towards the pain and suffering of the deceased. 10. The learned counsel for the 4[th] respondent points out in this regard that an excess compensation has been awarded MACA.No.1993/2015 & 2439/14 11 towards funeral expenses. The said contention is to be accepted in view of the fact that the amount awarded by the Tribunal is Rs.25,000/-, whereas the actual amount as per **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (S.C.)]** is Rs.15,000/-. Therefore, the excess amount of Rs.10,000/- is ordered to be deducted. Another head, which the learned counsel for the appellant highlighted, is Rs.30,000/awarded towards mental shock and suffering. Considering the amounts awarded under the other heads, additional compensation need not be granted under this head and therefore, the said amount is directed to be deducted. Thus, while re-assessing the compensation, the claimants are found to be entitled to receive an additional amount of Rs.11,59,400/[(1094400+5000+90000+10000) - (10000+30000)]. In the result, both these appeals are disposed of by modifying the award passed in O.P. (MV).No.979 of 2010 dated 05.02.2014 by the Motor Accidents Claims Tribunal, Vatakara, by granting an additional compensation of Rs.11,59,400/(Rupees eleven lakhs fifty nine thousand and four hundred only), which shall be deposited by the 4th respondent in the claim petition with interest at the rate as ordered by the MACA.No.1993/2015 & 2439/14 12 Tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. It is further ordered that the claimants shall furnish the details of the P.A.N. Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of one month from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/9.2.24