## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
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THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
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MACA NO. 611 OF 2013
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AGAINST THE AWARD DATED 28.06.2012 IN O.P.M.V NO.447/2009 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM
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## **`APPELLANTS/PETITIONERS:`**
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1MAIMUNA, AGED 73 YEARS
W/O.(LATE) USSAN, VAYAMBATHODI HOUSE, MARATHUR,
ONGALLUR P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT.
2SUHARA, AGED 41 YEARS
W/O.(LATE) SHAMSUDHEEN, VAYAMBATHODI HOUSE, MARATHUR,
ONGALLUR P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT.
3SHAREEFUDHEEN, AGED 24 YEARS
S/O.(LATE) SHAMSUDHEEN, VAYAMBATHODI HOUSE, MARATHUR,
ONGALLUR P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT.
4SHAFEEQUDHEEN, AGED 22 YEARS
S/O.(LATE) SHAMSUDHEEN, VAYAMBATHODI HOUSE, MARATHUR,
ONGALLUR P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT.
5ZAREENA, AGED 20 YEARS
D/O.(LATE) SHAMSUDHEEN, VAYAMBATHODI HOUSE, MARATHUR,
ONGALLUR P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT.
BY ADVS.SRI.SANTHEEP ANKARATH
SRI.ARUN MATHEW VADAKKAN
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## **`RESPONDENT/3RD RESPONDENT:`**
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THE RELIANCE GENERAL INSURANCE CO. LTD.,
1ST FLOOR, GEE JAY ARCADE, 141/71, T.V.SWAMY ROAD,
WEST R.S.PURAM, COIMBATORE-2, TAMILNADU.
(NO RELIEF CLAIMED AGAINST RESPONDENTS 1 & 2 IN OP(MV)
447/2009. HENCE THEY ARE NOT MADE PARTIES IN THIS
APPEAL).
BY ADV. SMT.DHANYA BABU
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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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MACA NO. 611 OF 2013
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## **JUDGMENT**
## **Dated this the 23[rd] day of March, 2023**
The appeal on hand is directed against an award passed by Motor Accident Claims Tribunal, Ottapalam (for short the 'Tribunal') on 28.06.2012 in O.P (M.V) No.447/2009. 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 the petitioners and respondents 1 to 3 in accordance with their status in the Original Petition.
3. Petitioners are the legal representatives of one Mr.Shamsudeen who died due to the injuries sustained in a motor accident occurred at about 2.30 p.m. on 11-04-2009 at Kuttipala. On that fateful day, a Lorry bearing Registration No.TN 41-P-4857 driven
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by its driver in a rash and negligent manner hit the Motorcycle bearing Registration No.KL 08 AH 1029 driven by him near Kuttipala and he sustained injuries. He was rushed to Edappal Hospital, Edappal and further to Amala Hospital, Thrissur. He succumbed to the serious injuries sustained in the motor accident at Amala Hospital, Thrissur. Claiming a total sum of `19,00,000/- as compensation from the driver, the insurer and the owner arrayed as respondents 1 to 3 jointly and severally, the Original Petition on hand was filed.
4. All respondents were served with summons in the Original Petition from the Tribunal. Respondent No.1 entered appearance and filed written statement denying the entire averments raised by petitioners in the Original Petition. It was contended that Mr.Shamsudeen himself has caused the motor accident by his careless and negligent riding of the
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motorcycle and that the amount claimed as compensation is excessive and devoid of any basis. The Lorry was admittedly insured with the 3[rd] respondent at the relevant time of the motor accident. 3[rd] respondent was served with summons from the Tribunal, but it failed to file any written statement. 2[nd] respondent who was served with summons, did not turn up to contest the Original Petition and therefore was declared as _ex parte_ by the Tribunal.
5. A witness was examined by the petitioners as PW1 and Exts.A1 to A15 were marked. Exts.B1 to B4 were marked by the respondents. Based on the above evidence, the Tribunal arrived at a finding that the 1[st] respondent by his rash and negligent driving of the Lorry has caused the motor accident. The Tribunal also found that the death of Mr.Shamsudheen was due to the injuries sustained by
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him in the motor accident and the petitioners being his legal representatives are entitled to get compensation. It arrived at `6,38,000/- as the compensation payable. Aggrieved thereby and seeking for enhancement, petitioners have approached this Court in the appeal on hand.
6. It is contended by Sri.Sandeep Ankarath, the learned counsel that despite claims raised by the petitioners that Mr.shamsudheen was doing business and earning `15,000/- monthly, the Tribunal took only `5,000/- as his monthly income on a notional basis. The learned counsel canvassed for fixation of a higher sum as the monthly income having due regard to the cost of living and price index prevailing in the year 2009, the year in which the motor accident was occurred.
7. It is furthermore pointed out by the learned counsel that `5,000/- each stood awarded as
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## **`MACA NO. 611 OF 2013`**
compensation towards loss of estate and funeral expenses and `10,000/-, towards loss of consortium were not in tune with the direction of the Constitution Bench of the Apex Court in **National insurance Company Ltd. v Prany Sethi and Ors.** [2017 (4) KLT 662 (SC)] to pay `16,500/- each and `44,000/per head as compensation to the surviving members of the family.
8. Five members survived the deceased and therefore, `2,20,000/- (`44,000/- x 5) is arrived at as the total compensation payable towards loss of consortium. `10,000/- stood awarded by the Tribunal when deducted from the above sum, petitioners will get `2,10,000/- (`2,20,000/- - `10,000/-) as additional compensation.
9. Similarly `5,000/- each stood awarded by the Tribunal as compensation towards loss of estate and funeral expenses when adjusted against
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`16,500/- payable, petitioners will get `11,500/- each as additional compensation under the respective heads.
10. The monthly income fixed being on the lower side, is replaced by `7,000/-. Mr.Shamsudheen being aged 39 years at the relevant time of his untimely death, 40% is also added to the monthly income in consideration of his loss of future prospects. When 40% is added to `7,000/-, `9,800/- is arrived at.
11. The deceased being survived by five family members, 1/4[th] is also deducted in consideration of his personal expenditure, instead of 1/3[rd] considered by the Tribunal.
12. In the re-assessment of compensation for loss of dependency based on factors modified as above and those maintained, `13,23,000/- [`9,800/x 12 x 15 x 3/4] is arrived at. `6,00,000/- stood
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awarded by the Tribunal when adjusted against, the petitioner will get `7,23,000/- as additional compensation towards loss of dependency.
13. 10,000/- and ₹ `5,000/- also stood awarded by the Tribunal respectively towards loss of love and affection and pain and suffering and the petitioners being disentitled to get those are deducted from the total additional compensation arrived at as payable.
14. In the above manner of re-assessment, petitioners will get `9,44,000/- (Rupees Nine lakhs forty four thousand only) (`7,23,000/- + `11,500/- + `11,500/- + `2,10,000/- + `1,000/- + `2,000/-) - (`5,000/- + `10,000/-) as additional compensation and it will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realization. 3[rd] respondent shall pay the additional compensation arrived at with interest fixed as above, in accordance with the directions issued by
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this Court in Circular No.03/2019 dated 06.09.2019, within two months from the date on which a certified copy of this judgment is received.
M.A.C.A stands allowed accordingly.
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Sd/-
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**MARY JOSEPH JUDGE**
saap
