M.A.C.A.No.698 of 2013 (Against the Award Dated 29-06-2012 in O.P(M.V) No.700/2011, Principal Motor Accidents Claims Tribunal, Kozhikode)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 ``` ## **`MACA NO. 698 OF 2013`** ``` AGAINST THE AWARD DATED 29.06.2012 IN O.P(M.V) NO.700 OF 2011 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ``` ## **`APPELLANTS/PETITIONERS IN O.P(M.V):`** ``` 1K.USSAIN, AGED 51 YEARS, S/O.HUSSAIN (FATHER OF THE DECEASED) 2NASEEMA, AGED 48 YEARS W/O.USSAIN, (MOTHER OF THE DECEASED) (BOTH ARE RESIDING AT KUNDATHIL HOUSE, PULLIKOTH, PADANILAM P.O., MADAVOOR, KOZHIKODE - 673 571. BY ADVS.SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN ``` ## **`RESPONDENTS/RESPONDENTS IN O.P(M.V):`** ``` 1K.ABOOBACKER S/O.KHADER, AGED NOT KNOWN, KAVATTA HOUSE, MADAVOOR P.O., NARIKUNI, KOZHIKODE - 673 583. 2JAMSHEER A.P. S/O.MUHAMMED, AGED 23 YEARS, ANAPARAKKAL HOUSE, KODUVALLY P.O., PALAKKUTTY, KOZHIKODE. 3THE NEW INDIA ASSURANCE CO. LTD, D.O.II, SHAFEER COMPLEX, OPP.YMCA, KANNUR ROAD, KOZHIKODE - 673 001. BY ADVS. R3 BY SRI.LAL K JOSEPH SRI.SURESH SUKUMAR(K/634/1997) SRI.ANZIL SALIM(K/000447/2018) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.698 of 2013 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 01[st] day of March, 2024** This appeal is originated from an award passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short ‘the Tribunal’) on 29.06.2012 in O.P(M.V) No.700/2011. The appellants are petitioners before the Tribunal who are none other than the legal representatives of one Mr.Muhammed Rashid. K, who sustained injuries in the motor accident and succumbed to those later, while undergoing treatment at Medical College Hospital, Kozhikode. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status in the Original Petition. 3. A bus bearing registration No.KL-11-R-687 dashed against a motorcycle ridden by him through Kozhikode-Wayanad road and thereby he sustained ``` M.A.C.A.No.698 of 2013 ``` ``` 3 ``` serious injuries and died. The motor accident was allegedly occurred due to the rash and negligent driving of the bus by the 2[nd] respondent. The registered owner of the bus was arrayed as the 1[st] respondent and its insurer as the 3[rd] respondent. A total sum of `6,00,000/- was claimed as compensation in the Original Petition. 4. All respondents were served with notice. 1[st] and 2[nd] respondents did not turn up to contest the Original Petition and therefore were declared as _ex parte_ . 3[rd] respondent has filed written statement admitting insurance coverage for the bus bearing Registration No.KL-11-R-687 as on date of the motor accident. Negligence on the part of the 2[nd] respondent was denied. The quantum of compensation claimed was also disputed for its exorbitance. Claims of the petitioners regarding the age of the deceased was also disputed. 5. Before the Tribunal, Exts.A1 to A6 were marked by the petitioner. Respondents did not adduce any evidence. Based on the evidence, the Tribunal found that ``` M.A.C.A.No.698 of 2013 ``` ``` 4 ``` the motor accident in question was occurred due to the rash and negligent driving of the bus bearing Registration No.KL-11-R-687 by its driver who was arrayed as the 2[nd] respondent. The injuries sustained by the victim of the motor accident as well as his death were proved before the Tribunal. Therefore, it found that the petitioners who are the legal representatives of the victim of the motor accident who died later, are entitled to get compensation. The Tribunal arrived at a sum of `1,49,500/- as the compensation payable. It directed the 3[rd] respondent insurer to deposit the same with interest at the rate of 7% per annum from the date on which the Original Petition was filed till the date of deposit alongwith proportionate costs. Aggrieved by the quantum of compensation stood awarded by the Tribunal, petitioners are now before this Court in the appeal on hand. 6. The learned counsel for the petitioners urged that the deceased was a boy aged 17 years and was pursuing his education in Plus Two. According to her, ``` M.A.C.A.No.698 of 2013 ``` ``` 5 ``` though the deceased was established by evidence as an average student, the Tribunal took only `15,000/- as his annual income and calculated compensation for loss of dependency on its basis. According to her, the Tribunal ought to have taken a sum higher than `15,000/- as the annual income and calculated compensation on its basis. According to her, though the petitioners are entitled to get `15,000/- each as compensation towards loss of estate and funeral expenses and `40,000/- per head as compensation towards loss of consortium, the Tribunal failed to award accordingly. The learned counsel has pointed out further that the Tribunal has awarded only a meagre sum as compensation towards loss of love and affection. The learned counsel has invited the attention of this Court also to the fact that the interest rate ordered by the Tribunal being 7% is also low. 7. Learned counsel for the 3[rd] respondent has contended on the contrary that the Tribunal has considered every aspects of the claim petition and ``` M.A.C.A.No.698 of 2013 ``` ``` 6 ``` awarded reasonable sums as compensation in favour of the petitioners and therefore interference is uncalled for. According to him, deceased was aged only 17 years and was riding a motorcycle at the relevant time. According to the learned counsel, he was not eligible in view of his minor status to obtain a driving licence under the provisions of the Motor Vehicles Act, 1988 (for short ‘the M.V Act’). According to him, for the reason that he had ridden the motorcycle without authorisation, the Tribunal ought to have found contribution of negligence from him also as the cause of the motor accident. 8. A final report was filed in the case on hand and marked in evidence as Ext.A4. It was marked without any objection. Evidence was not adduced by the respondent to establish collusion among the petitioners and the investigating officer while preparing it. Therefore, Ext.A4 which is unchallenged in any respect can be relied on by the Tribunal as _prima facie_ evidence of rash and negligent riding by the driver of the bus. For driving the vehicle ``` M.A.C.A.No.698 of 2013 ``` ``` 7 ``` without authorisation, the victim has to meet the legal consequences envisaged under the M.V Act. That cannot form a ground for fixing negligence on him in a claim petition seeking compensation under the M.V Act. 9. The learned counsel for the petitioners convincingly explained that the Tribunal failed to award just and reasonable compensation under the conventional heads. Therefore, this Court is inclined to award the compensation, the petitioners are legally entitled to get under the conventional heads as directed by the Constitution Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)]** . 10. As per the dictum in **Pranay Sethi** supra petitioners are entitled to get `15,000/- each as compensation towards loss of estate and funeral expenses and `40,000/- per head as compensation towards loss of consortium. Therefore, `80,000/- (`40,000/- x 2) is payable as compensation towards loss of consortium and ``` M.A.C.A.No.698 of 2013 ``` ``` 8 ``` `15,000/- each as compensation towards loss of estate and funeral expenses and this Court awards so. 11. The annual income was fixed by the Tribunal as `15,000/- on a notional basis. The motor accident was occurred in the year 2011 and therefore, there is every reason to hold that the monthly income notionally fixed is on the lower side. Victim was aged 17 years at the relevant time of his death due to the motor accident and he was established as an average student of Plus Two. Therefore, this Court is inclined to refix the annual income as `30,000/-. Since the deceased lost his future prospects in view of his untimely death in the motor accident while he was only 17 years, this Court is inclined to add 40% to the monthly income in consideration of that. Thus `42,000/- (`30,000/- + 40% of `30,000/-) is arrived at. The multiplier has been wrongly applied by the Tribunal as ‘15’ instead of ‘18’, the correct one. Therefore, ‘18’ is adopted. The deceased being a bachelor, half is also deducted from the annual income fixed in consideration of ``` M.A.C.A.No.698 of 2013 ``` ``` 9 ``` personal expenditure of the deceased. When calculation is done afresh with the above modified factors, petitioners will get `3,78,000/- (`42,000/- x 18 x ½) as compensation towards loss of dependency. This Court is also inclined to maintain `1,000/- each stood awarded by the Tribunal as compensation towards transportation expenses and damages to clothing. Interest rate fixed by the Tribunal being low that is refixed as 7.5%. 12. In the above manner of calculation, a sum of `4,90,000/- (Rupees four lakhs ninety thousand only) (`15,000/- + `15,000/- + `80,000/- + `3,78,000/- + `1,000/- + `1,000/-) is arrived at and that replaces the compensation stood awarded by the Tribunal. 13. In the result, appeal on hand is allowed. A sum of `4,90,000/- is awarded as the total compensation and it will carry interest at the re-fixed rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. ``` M.A.C.A.No.698 of 2013 ``` ``` 10 ``` 14. 3[rd] respondent shall deposit the compensation arrived at with interest and costs within a period of two months from the date on which a certified copy of this judgment is received. The compensation shall be disbursed in favour of the petitioners in accordance with the directions issued by the Tribunal in the impugned award as well the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. 3[rd] respondent is exonerated from paying interest for 99 days of delay occurred in filing the appeal on hand. 15. It is submitted by the learned counsel for the 3[rd] respondent that the amount stood awarded by the Tribunal (`1,49,500/- with interest and costs) is already deposited by him. The Tribunal on being convinced of the submission made, shall adjust the same in the compensation payable. Sd/- ## **MARY JOSEPH** **JUDGE** NAB