Mohammed Haneefa and Rafia Ummal v. Rasiya Salam, Unnikrishnan and New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 19TH DAY OF FEBRUARY 2016/30TH MAGHA, 1937** ## **MACA.No. 142 of 2007** **-------------------------------------** **O.P(M.V)NO.1170/1999 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM ------------------------** ## **APPELLANT(S)/PETITIONERS :** **----------------------------------------------** **1. MOHAMMED HANEEFA, S/O.SYED MOHAMMED, JASI MANZIL, KETTIDAM JUNCTION, KIZHAKKANELA P.O., PARIPPALLY, KOLLAM.** **2. RAFIA UMMAL, W/O.MOHAMMED HANEEFA, JASI MANZIL, KETTIDAM JUNCTION, KIZHAKKANELA P.O., PARIPPALLY, KOLLAM.** ## **BY ADV. SRI.T.GOPALAKRISHNAN** ## **RESPONDENT(S)/RESPONDENTS :** **----------------------------------------------------** **1. RASIYA SALAM, D/O.NABEESA BEEVI, SAHIN MANZIL, PARAKKUNU, NAVAYIKULAM, TRIVANDRUM DISTRICT. (OWNER OF THE VAN NO.KL/M/6302 AT THAT TIME).** **2. UNNIKRISHNAN, S/O.ANANDAN PILLAI, PANAYIL VEEDU, VETTIYARA, NAVAYIKULAM, TRIVANDRUM DISTRICT. (DRIVER OF THE VAN NO.KL 01/M 6302 AT THAT TIME).** **3. NEW INDIA ASSURANCE COMPANY LTD., ATTINGAL BRANCH.** **R3 BY ADV. SRI.RENI ANTO KANDAMKULATHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **P.R. RAMACHANDRA MENON, & ANIL K. NARENDRAN, JJ.** -------------------------------------------------- M.A.C.A. No. 142 of 2007 -------------------------------------------------Dated this the 19[th] day of February, 2016 ## **J U D G M E N T** ## P.R. Ramachandra Menon, J. The appeal is for enhancement of the compensation awarded by the Tribunal in respect of the death of the son of the appellants, pursuant to a road traffic accident occurred on 10.05.1999. 2. The factual position revealed from the proceedings is that, when the deceased was standing by the side of the Attingal-Thiruvananthapuram NH Road near Parippally, he was knocked down by a van, bearing Reg.No.KL-01/M-6302, owned, driven and insured by respondents 1 to 3, causing serious injuries leading to death. This led to the claim petition filed by the legal heirs of the deceased before the Tribunal seeking compensation. M.A.C.A. No. 142 of 2007 **==> picture [20 x 8] intentionally omitted <==** 3. The matter was contested mainly by the 3[rd] respondent insurer. Respondents 1 & 2 remained ex parte. The nature of contention raised by the respondent Insurance Company was mainly on quantum/negligence. The evidence adduced before the Tribunal consists of Exts.A1 to A8. PW1 was examined. There was no oral or documentary evidence from the part of the respondents. 4. Based on the relevant materials on record, the Tribunal arrived at a finding that the accident occurred was solely because of the negligence on the part of the 2[nd] respondent, who was the driver of the vehicle and proceeded to fix the compensation accordingly. 5. Coming to the quantum of the compensation payable, the case projected by the claimants before the Tribunal was that the deceased was a newspaper agent and was also doing some plumbing and painting works, drawing a monthly income of 6,000/-. Referring to₹ serious consequences resulted because of the death, a total sum of 6,00,000/- was claimed. But, the Tribunal₹ M.A.C.A. No. 142 of 2007 **==> picture [20 x 8] intentionally omitted <==** observed that the income was not properly proved and accordingly, only 1,500/- was fixed as notional monthly₹ income for working out the loss of dependency. Awarding amounts under different heads, a total compensation of ₹1,52,000/was fixed, which was directed to be satisfied with interest @ 7.5% per annum from the date of petition, till realization from the respondents 1 to 3 jointly and severally. The liability, accordingly, was mulcted upon the shoulders of the respondent insurer, correctness of which is the subject matter of challenge in this appeal. 6. Heard the learned counsel for the appellants and the learned counsel appearing on behalf of the insurance company. 7. The amounts awarded by the Tribunal under different heads as given in paragraph 8 of the Award are as follows : Transport to the hospital & funeral expenses ₹5,000/Compensation for pain & suffering ₹5,000/Compensation for continuing permanent disability ₹1,32,000/- M.A.C.A. No. 142 of 2007 ..4.. **==> picture [320 x 64] intentionally omitted <==** 8. With regard to the quantification of the amounts of compensation payable in respect of the death of the deceased, it is seen that the notional monthly income of the deceased was reckoned only as 1,500/-,₹ presumably, for the reason that no evidence was adduced by the appellants/claimants with regard to the avocation or income of the deceased. The learned counsel for the appellants submits that the deceased was working as newspaper agent and at the same time, as a plumber. But, nothing has been brought on record and no evidence has been adduced, either oral or documentary, as to the credentials of the deceased. Still, considering the fact that the accident was in the year 1999 and the deceased was a youth of 20 years old, we find it appropriate to refix the notional monthly income of the deceased as 2,500/-₹ to work out the compensation. The multiplier adopted by the Tribunal was based on the age of the M.A.C.A. No. 142 of 2007 **==> picture [20 x 8] intentionally omitted <==** parents/claimants. It is settled law that the multiplier has to be fixed based on the age of the deceased and not with respect to the age of the parents/claimants. This being the position, since the deceased was aged 20 years, the proper multiplier to be adopted is '18' and not '11'. It has to be noted that the Tribunal deducted only 1/3[rd] towards personal expenses. But, since the deceased was a bachelor, only 50% could be reckoned as contribution to family, as submitted by the learned counsel for the insurance company. In the said circumstances, we effect the recalculation as, 2500 x 12 x 18 x 50/100, i.e., ₹2,70,000/-. The Tribunal has awarded only a sum of ₹1,32,000/- under this head. Thus, after deducting the amount awarded by the Tribunal towards loss of dependency, the balance would come to **₹1,38,000/-** and we award the same. 10. It is seen that the Tribunal has awarded a sum of 10,000/- towards loss of amenities and enjoyments in₹ life, which could not have been awarded as the accident M.A.C.A. No. 142 of 2007 **==> picture [20 x 8] intentionally omitted <==** has resulted in the death of the victim. But, it is seen that nothing has been given towards loss of estate. The amount of 10,000/- awarded by the Tribunal towards loss₹ of amenities is converted and substituted towards loss of estate, sustaining the payment ordered by the Tribunal to the said extent. It is seen that nothing has been given towards loss of love and affection. We are aware of the verdict passed by the Apex Court in **Rajesh** v. **Rajbir Singh** [2013 (3) KLT 89 (SC)], holding that the claimants will be entitled to get 1 lakh towards loss of love and₹ affection. Accident in the said case was in the year 2007; whereas in the instant case, it was in the year 1999. After referring to the said judgment, it has been held by another Division Bench of this Court in **Valsamma** v. **Biju Jose** [2014 (1) KLT 10] that the amount payable under this head shall be with reference to the age of the deceased and the age of the claimants as well. Striking a balance, we award a sum of **₹50,000/-** , i.e.,₹25,000/each, towards loss of love and affection. M.A.C.A. No. 142 of 2007 **==> picture [20 x 8] intentionally omitted <==** Thus, the total additional compensation would come to **₹1,88,000/-** (Rupees one lakh and eighty eight thousand only), which shall be satisfied with interest @ 9% per annum from the date of the petition. Since the policy is admitted, we direct the insurance company to have the same satisfied within one month from the date of receipt of a copy of this judgment. The appeal is disposed of accordingly. Sd/- **P.R. RAMACHANDRA MENON JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** bka/- //True copy// PA to Judge