Mangalanandan and others v Hashim and Shameer Muhammed and The Oriental Insurance Co. Ltd. (MACA Nos.345/2013 & 400/2013)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 ``` ## **`MACA NO. 345 OF 2013`** ``` AGAINST THE AWARD DATED 23.11.2011 IN O.P(M.V) NO.1863/2006 OF MOTOR ACCIDENT ``` ## **`CLAIMS TRIBUNAL, ALAPPUZHA`** ## **`APPELLANTS(PETITIONERS IN THE TRIBUNAL BELOW):`** ``` 1MANGALANANDAN, WARD NO.15, CHENNEKKAL VELI VEEDU, PUNNAPRA (N), ALAPPUZHA. *2PUSHPA, W/O.MANGALANANDAN, WARD NO.15, CHENNEKKAL VELI VEEDU, PUNNAPRA (N), ALAPPUZHA.(DIED) 3REJIL, S/O.MANGALANANDAN, WARD NO.15, CHENNEKKAL VELI VEEDU, PUNNAPRA (N), ALAPPUZHA. 4PREJITH, S/O.MANGALANANDAN, WARD NO.15, CHENNEKKAL VELI VEEDU, PUNNAPRA (N), ALAPPUZHA. *(IT IS RECORDED THAT THE 2ND APPELLANT DIED AND THE 1ST, 3RD AND 4TH APPELLANTS ARE THE ONLY LEGAL HEIRS OF THE DECEASED 2ND APPELLANT AS PER ORDER DATED 22.08.2019 IN I.A.NO.01/2019.) BY ADV. DR.V.N.SANKARJEE ``` ## **`RESPONDENTS (RESPONDENTS IN THE TRIBUNAL BELOW):`** ``` 1HASHIM,S/O.UMMAR, PULLINELI, PUNNAPRA, ALAPPUZHA - 688 014. 2SHAMEER MUHAMMED, S/O.MUHAMMED, 1/624, S.M.COLONY, PUNNAPRA, ALAPPUZHA - 688 014. 3THE ORIENTAL INSURANCE CO.LTD. MULLACKAL, ALAPPUZHA - 688 001. ``` ``` BY ADV R3 BY SRI.R.AJITH KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.02.2023, ALONG WITH MACA.400/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.345/2013 & 400/2013 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 ``` ``` MACA NO. 400 OF 2013 ``` ``` AGAINST THE AWARD DATED 23.11.2011 IN O.P(M.V) NO.1862/2006 OF MOTOR ACCIDENT ``` ## **`CLAIMS TRIBUNAL, ALAPPUZHA`** ## **`APPELLANTS (PETITIONERS 1,3 & 4 IN THE TRIBUNAL BELOW):`** - `*1 CHANDRAN, WARD NO.16, PUNNAPRA (N) PANCHAYATH, VADACKAL P.O, ALAPPUZHA. (*DECEASED)` - `2 SMITHA KUMARI, D/O. CHANDRAN, WARD NO. 16, PUNNAPRA (N) PANCHAYATH, VADACKAL P.O., ALAPPUZHA.` - `3 SUNITHA KUMARI, D/O. CHANDRAN, WARD NO. 16, PUNNAPRA (N) PANCHAYATH, VADACKAL P.O, ALAPPUZHA.` - `**4 SUJATHA ALIAS K.K.SUJAYAMMA W/O CHANDRAN, AGED 62 , POONTHRASSERIL, WARD NO.16, PUNNAPRA(N) PANCHAYAT, VADACKAL P.O., ALAPPUZHA DISTRICT. **(ADDITIONAL FOURTH APPELLANT IS IMPLEADED AS PER ORDER DATED 08/11/2022 IN IA 2/2019 IN MACA 400/2013) *(THE APPELLANTS 2 TO 4 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED 1ST APPELLANT AS PER ORDER DATED 08/11/2022 IN IA 01/2022 IN MACA 400/2013 BY ADV V.N.SANKARJEE` ## **`RESPONDENTS (RESPONDENTS IN THE TRIBUNAL BELOW):`** - `1 HASHIM, S/O. UMMAR, PULLINELI, PUNNAPRA, ALAPPUZHA - 688 014. 2 SHAMEER MUHAMMED, S/O.MUHAMMED, 1/624, S.M. COLONY PUNNAPRA, ALAPPUZHA - 688 014.` - `3 THE ORIENTAL INSURANCE CO. LTD., MULLACKAL, ALAPPUZHA - 688 001.` ``` BY ADV R3 BY SRI.R.AJITH KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.02.2023, ALONG WITH MACA.345/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.345/2013 & 400/2013 ``` ``` 3 ``` ## **JUDGMENT** ## **[MACA Nos.345/2013, 400/2013]** ## **Dated this the 23[rd] day of February, 2023.** The appeals on hand were originated from a common award passed by the Motor Accidents Claims Tribunal, Alappuzha (for short, ‘the Tribunal’) on 23.11.2011 in O.P.(M.V) Nos.1863/2006 and 1862/2006. The appellants respectively are the legal representatives of one Mr.Manoj and one Mr.Subhash, who died due to the fatal injuries received in a motor accident at about 7.15 p.m on 22.03.2006 near Kalarkodu Junction, South of Chinmaya School situated in Alappuzha-Kollam National Highway. A private bus bearing Registration No.KL-5/N-6099, hit against an autorickshaw bearing Registration No.Kl-4/5/9076 where the deceased were passengers at the relevant time. The motor accident was allegedly occurred due to the rash and negligent driving of the private bus by its driver. Rs.10,00,000/- each was claimed as compensation for the death of Mr.Manoj and Mr.Subhash in the motor accident. ``` MACA Nos.345/2013 & 400/2013 ``` ``` 4 ``` 2. Though served with summons, respondents 1 and 2 did not turn up to contest the Original Petitions and therefore declared _ex parte_ . The 3[rd] respondent had filed written statement admitting insurance coverage for the offending bus as on date of accident. It was contended that the 1[st] respondent, the driver of the bus was not rash and negligent and responsible for the motor accident, that it was occurred due to rash and negligent driving of the autorickshaw by its driver and that the compensation claimed is excessive in nature. The age, occupation and monthly income of the deceased in both cases were also disputed. 3. The parties to these appeals will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status in the Original Petitions. 4. Both Original Petitions were tried together and the common award impugned was passed. On the side of the petitioners, oral evidence as well as documentary evidence were adduced by the petitioners and it consists of the deposition of PWs 1 to 4 and Exts. A1 to A15 and Ext.X1. On the side of the respondents, no evidence was adduced. On appreciation of the evidence on ``` MACA Nos.345/2013 & 400/2013 ``` ``` 5 ``` record, the Tribunal found that the motor accident was occurred due to the rash and negligent driving of the private bus by its driver, who is none other than the 1[st] respondent. The Tribunal has also found that death of Mr.Manoj and Mr.Subhash was on account of the motor accident occurred with the involvement of the private bus. Accordingly, the petitioners in the Original Petitions were found entitled to get compensation from the respondents. 5. The Tribunal fixed Rs.3,47,000/- each as the compensation payable to petitioners in O.P.(M.V) Nos.1862/2006 and 1863/2006. The Tribunal directed the 3[rd] respondent, being the insurer of the offending private bus to deposit the compensation arrived at with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation alongwith proportionate costs. 6. It is contended by Sri.V.N Madhusudanan, the learned counsel for the petitioners in both cases that the compensation stands awarded by the Tribunal is on the lower side. According to him petitioners have adduced evidence to establish the occupation and the monthly income of each of the deceased. PW3 and PW4 ``` MACA Nos.345/2013 & 400/2013 ``` ``` 6 ``` were examined to establish the claim of the petitioners that the deceased in both cases were Mason and Supervisors of Karthika Construction, Alappuzha. The Labour Officer was examined as PW3 and the employer of both deceased was examined as PW4. According to PW3, a skilled labourer will get Rs.185/- as wages per day. PW4 has deposed that Rs.250/- has been given to both deceased as wages per day for doing the work as Mason under him. The Tribunal is found discarded the oral evidence tendered by PW3 and PW4 while fixing the monthly income as Rs.3,000/- notionally. 7. This Court finds that both the deceased were skilled labourers, Rs.3,000/- fixed as their monthly income is too low. In the cases on hand, oral evidence have been adduced by PW3 and PW4 to the effect that the deceased were working as Masons. It is further stated by PW4 that Rs.250/- per day was paid to each of the deceased work done by them under her. This Court finds every reason to give credence to the testimony of PW4 and accordingly fixed Rs.6,250/- (Rs.250/- x 25) is fixed as the monthly income in the case of each of the deceased. ``` MACA Nos.345/2013 & 400/2013 ``` ``` 7 ``` 8. Deceased Manoj was allegedly aged 25 years and deceased Subhash, 22 years as on date of the accident. Authentic materials to prove the age of the deceased were not produced and marked in evidence before the Tribunal. In the certificate of Postmortem examination marked in evidence respectively as Exts.A10 and A3, it deceased were reported as aged 26 years. Therefore 17 was adopted as the multiplier by the Tribunal in both the Original Petitions for the purpose of calculation of compensation for dependency. The learned counsel for the petitioner has produced the duly attested extract of the admission register relating to Subash Chandra Bose, from whose death in the motor accident in question OP(MV) No.1862/2006 was originated. He has also filed I.A. No.1/2019 in the appeal on hand seeking to mark the same in additional evidence. It was stated in the application that the said document is a relevant piece of evidence for determining the compensation payable and could not be produced before the Tribunal due to oversight. This Court is convinced that the document proposed to be marked is very much relevant for determining just and reasonable compensation in the case. Therefore, I.A. No.1/2019 is allowed and the document is marked in evidence as Ext.A16. ``` MACA Nos.345/2013 & 400/2013 ``` 9. Ext.A16 was found issued from St.Joseph H.S., Punnapra, where Subhash Chandra Bose has pursued his education. His date of birth was shown there as 22.01.1984. The motor accident being occurred in the year 2006, Subhash can be taken as aged 22 years. Therefore, this Court is inclined to substitute the multiplier 18 in the place of 17 adopted by the Tribunal. 10. It is noticed that compensation was not awarded by the Tribunal under the conventional heads in tune with the entitlement of the petitioners as directed by the Constitution Bench in **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)].** Rs.5,000/- each was found awarded by the Tribunal in favour of the petitioners in each cases as compensation towards funeral expenses and therefore, Rs.11,500/more is awarded in each cases. Compensation was not found awarded under the head loss of estate in each cases and therefore this Court awards Rs.16,500/- each. The deceased in both cases was survived by their parents and therefore each of them are entitled to get Rs.44,000/- as compensation towards loss of consortium. Thus Rs.88,000/- each (Rs.44,000/- x 2) is arrived at. Since the ``` MACA Nos.345/2013 & 400/2013 ``` ``` 9 ``` Tribunal fails to award any sum as compensation towards loss of Consortium, the petitioners in each cases will get Rs.88,000/- as additional compensation. It is found from the common award under challenge that Rs.30,000/- and Rs.5,000/- respectively have been awarded as compensation towards loss of love and affection and pain and suffering. The petitioners in both cases being legal representatives of the deceased are not entitled to get compensation under the above heads. Therefore Rs.35,000/- (Rs.30,000/- +_ Rs.5,000/-) stands awarded under the above heads is deducted from the total compensation arrived at as payable additionally. 11. In O.P(M.V) No.1863/2006, loss of dependency has to be re-calculated on the basis of Rs.6,250/-, the modified monthly income. Thus the petitioners will get Rs.6,37,500/- [(Rs.6250 x 12 x 17)/2]. Rs.3,06,000/- stands awarded by the Tribunal is deducted therefrom and arrived at Rs.3,31,500/- as the additional compensation payable towards loss of dependency. 12. In O.P(M.V) No.1862/2006, when loss of dependency is calculated on the basis of Rs.6,250/-, the modified monthly income, Rs.6,75,000/-[(Rs.6250x12x18)/2]. Rs.3,06,000/- stands awarded ``` MACA Nos.345/2013 & 400/2013 ``` ``` 10 ``` by the Tribunal is deducted therefrom and arrived at Rs.3,69,000/as the additional compensation payable towards loss of dependency. 13. In the above manner of re-assessment, the petitioners in O.P(M.V) No.1863/2006 (M.A.C.A No.345/2013) will get Rs.4,12,500/- (Rupees Four Lakh Twelve Thousand Five Hundred **-** Only) [(Rs.3,31,500/- + Rs.88,000/- + Rs.11,500/- + Rs.16,500/-) Rs.30,000/- + Rs.5,000/-] as total additional compensation and petitioners in O.P(M.V) No 1862/2006 (M.A.C.A No.400/2013), will get Rs.4,50,000/- (Rupees Four Lakh Fifty Thousand Only) [(Rs.3,69,000/- + Rs.88,000/- + Rs.11,500/- + Rs.16,500/-) - (Rs.30,000/- + Rs.5,000/-] as total additional compensation. The said sums will carry interest at the rate of 7.5% per annum. 14. Liability has been fixed by the Tribunal on the 3[rd] respondent to pay compensation in favour of the petitioners in each cases and thereby to indemnify the insured. In the absence of any challenge raised against the fixation of liability, it is maintained. Thus the 3[rd] respondent is directed to pay the additional compensation arrived at with interest fixed, as above from the date of filing of the Original Petitions till the date of realisation excluding ``` MACA Nos.345/2013 & 400/2013 ``` ``` 11 ``` 200 days, being the period of delay occurred in filing the appeals , within a period of two months from the date on which a certified copy of this judgment is received, in accordance with Circular No.03/2019 issued by this Court on 06.09.2019. Both M.A.C.As stand allowed accordingly. ``` Sd/- ``` **MARY JOSEPH JUDGE** JJ ``` MACA Nos.345/2013 & 400/2013 ``` ``` 12 ``` ## **`APPENDIX OF MACA 400/2013`** ``` PETITIONER’S ANNEXURES: ANNEXURE ITHE EXTRACT OF THE ADMISSION REGISTER DATED 19.8.2019 IN ORIGINAL, ISSUED FROM ST.JOSEPH HIGH SCHOOL, PUNNAPRA ```