Mohammed Shakeeb & Others v. N.A. Ali & Others (MACA Nos. 21/2012 and 789/2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 MACA NO. 21 OF 2012** **AGAINST THE AWARD DATED 27.07.2011 IN OP(MV) NO.965/2006 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANTS/CLAIMANTS IN MACT:** 1 MOHAMMED SHAKKEB, S/O.MOHAMMED, PANDAYAMPARAMBU, CHITRA BHAVAN, PONJASSERY, WEST VENGOLA P.O. 2 RASHEEDA W/O.MOHAMMED SHAKEEB, PANDAYAMPARAMBU, CHITRA BHAVAN, PONJASSERY, WEST VENGOLA P.O. 3 MURAD S/O.MOHAMMED SHAKEEB, PANDAYAMPARAMBU, CHITRA BHAVAN, PONJASSERY, WEST VENGOAL P.O. 4 PASSAL MINOR S/O.MOHAMMED SHAKEEB, PANDAYAMPARAMBU, CHITRA BHAVAN, PONJASSERY, WEST VENGOLA P.O., REP.BY HIS MOTHER THE 2ND APPELLANT. BY ADVS. SRI.M.A.FIROZ C.K.SHERIN SMT.M.P.SHERIN SRI.C.S.ULLAS ## **RESPONDENTS/RESPONDENTS IN MACT:** - 1 N.A.ALI, S/O.AMMU, NYTHELI HOUSE, KAKKANADU, COCHIN-682 034. - 2 JALEEL, S/O.BEERAVU, KAIPPALATHIL HOUSE, NEAR TODDY SHOP, EDAYAPURAM, THOTTUMUGHOMKARA, ALUVA EAST VILALGE, PIN-683 101. - 3 THE NEW INDIA ASSURANCE CO.LTD. ST.JOSEPH BUILDING, A.M.ROAD, PERUMBAVOOR-683 542. MACA Nos.21/2012 and 789/2013 2 4 LATHEEF.M.K, KARIYAELI HOUSE, NEAR AYURVEDIC HOSPITAL, PERUMBAVOOR-683 542. 5 THE NEW INDIA ASSURANCE CO.LTD. ST.JOSEPH BUILDING, A.M.ROAD, PERUMBAVOOR-683 542. BY ADV A.C.DEVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.01.2024, ALONG WITH MACA.789/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA Nos.21/2012 and 789/2013 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945** ## **MACA NO. 789 OF 2013** **AGAINST THE AWARD IN OP(MV)NO.965/2006 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL,PERUMBAVOOR** ## **APPELLANT/1ST RESPONDENT IN THE OP (MV):** N.A.ALI S/O AMMU, NYTHELIL HOUSE, KAKKANADU, KOCHI. BY ADVS. SRI.A.MOHAMMED SRI.K.I.SAGEER ## **RESPONDENT/PETITIONERS AND RESPONDENTS NO.2 TO 5 IN THE** ## **OP(MV):** 1 MOHAMMED SHAKEEB S/O. MOHAMMED, PANDYAMPARAMBU, CHITRA BHAVAN, PONJASSERY, WEST VENGOLA PO, ERNAKULAM DISTRICT683 556. 2 RASHEEDA W/O MOHAMMED, PANDYAMPARAMBU, CHITRA BHAVAN, PONJASSERY, WEST VENGOLA PO, ERNAKULAM DISTRICT683 556. 3 MURAD S/O. MOHAMMED, PANDYAMPARAMBU, CHITRA BHAVAN, PONJASSERY, WEST VENGOLA PO, ERNAKULAM DISTRICT683 556. 4 PASSEL MINOR S/O MOHAMMED SHAKEEB, PANDYAMPARAMBU, CHITRA BHAVAN, PONJASSERY, WEST VENGOLA PO, ERNAKULAM DISTRICT REP. BY HIS FATHER AND NEXT FRIEND MOHAMMED SHAKKEB, PANDYAMPARAMBU, CHITRA BHAVAN, MACA Nos.21/2012 and 789/2013 4 PONJASSERY, WEST VENGOLA PO, ERNAKULAM DISTRICT683 556. 5 JALEEL S/O BEERAVU, KAIPPALATHIL HOSUE, NEAR TODDY SHOP, EDAYAPPURAM, THOTNGHOM KARA, ALUVA EAST VILLAGE, ERNAKULAM DISTRICT-683 105. 6 THE NEW INDIA ASSURANCE CO. LTD. S. JOSEPH'S BUILDING, A.M. ROAD, PERUMBAVOOR, ERNAKULAM DISTRICT, REP. BY ITS MANAGER. 683 542. 7 LATHEEF M.K. KARIYELI HOUSE, NEAR AYURVEDIC HOSPITAL, PERUMBAVOOR. BY ADVS. SRI.M.A.FIROZ SRI.GEORGE MECHERIL SMT.K.M.AMINABEEVI SRI.A.C.DEVY SRI.C.S.ULLAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.01.2024, ALONG WITH MACA.21/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA Nos.21/2012 and 789/2013 5 ## **JUDGMENT** Both these appeals arise from the award passed by the Motor Accident Claims Tribunal, Perumbavoor, in O.P (MV) 965/2006. The said claim petition was submitted by the claimants, the appellants in M.A.C.A No. 21/2012, seeking compensation for the death of one Rasheed due to the injuries sustained in a Motor Accident that occurred on 23.04.2006 ( For convenience, the parties in these appeals are hereinafter referred to on the basis of their respective ranks in the claim petition) 2. According to the petitioners, the accident occurred when the bus bearing registration No. KL7/Q 4005, in which the deceased was travelling as a passenger, collided with a lorry bearing registration No. K.L.7/N-7234 driven by the 2nd respondent in rash and negligent manner. The 1st respondent was the registered owner of the lorry and it was insured with a 3rd respondent. The 4th respondent was the owner of the bus and it was insured with the 5th respondent. The deceased was a plus two student aged 17 years. Petitioners 1 and 2 are his 6 MACA Nos.21/2012 and 789/2013 parents, and Petitioners 3 and 4 are the siblings of the deceased. The total amount claimed was Rs. 5,00,000/-. 3. The 3rd and 5th respondents file a joint written statement admitting the existence of insurance policies for both the said vehicles. They disputed the negligence as well as the quantum of compensation. However, the 3rd respondent also raised a contention that the lorry was being driven without a valid fitness certificate. 4. The evidence in this case consists of Exts. A1 to A25 from the side of the appellants and from the side of the respondents, Ext.B1 was marked. After the trial, the tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the lorry. Hence, the 3[rd] respondent, being the insurer of the said vehicle, was held liable to pay the compensation. The tribunal also found that the lorry did not have a valid fitness certificate at the time of the accident, and therefore, the 3rd respondent was permitted to recover the said amount from the 1st respondent, the owner of the said vehicle. The quantum of compensation was fixed as MACA Nos.21/2012 and 789/2013 7 Rs.2,52,750/- and the same was directed to be deposited by the 3rd respondent with interest @8% per annum from the date of petition till realization, with proportionate cost. MACA 21/2012 was filed by the claimants seeking enhancement of compensation, whereas MACA 789/2013 was filed by the 1st respondent, challenging the finding of violation of policy conditions and the consequential right of recovery granted to the 3rd respondent from him. 5. Heard Sri. C.K.Sherin learned counsel for the claimants, the appellants in MACA 21/2012, Sri. K. I.Sageer learned counsel appearing for the 1[st] respondent, the appellant in MACA 789/2013 and Sri . A.C Davy learned counsel appearing for the 3[rd] respondent, the insurer of the lorry. 6. The first question to be considered is with regard to the right of recovery granted to the 3rd respondent from the 1st respondent. The 1st respondent was set exparte before the Tribunal. While the matter was pending consideration, the 3rd respondent filed I.A No. 907/2007, for a direction to the 1st respondent to produce the fitness certificate. However, even MACA Nos.21/2012 and 789/2013 8 though the said notice was served upon him, he did not produce the said fitness certificate, and accordingly, an adverse inference was drawn against him. 7. However, in M.A.C.A No.789/2013, the 1st respondent in the claim petition, filed Annexure A1, which is a certificate issued by the Regional Transport Office, Ernakulam, wherein it is mentioned that the certificate of fitness in respect of the vehicle bearing registration No.KL-07-N 7234 (HGV TIPPER) was valid from 19.09.2005 to 18.09.2006. The accident in this case occurred on 23.04.2006. Therefore, it was pointed out that, as per the said certificate, the vehicle was covered with a valid fitness certificate as of the date of the accident. 8. The learned counsel for the 3[rd] respondent/Insurance company opposes the said contention by pointing out that the Annexure A1 document cannot be relied upon, as the same was not properly proved in the manner known to law since no one was examined to prove the genuineness of the same. 9. However, on going through Ext.A8, the final report submitted by Aluva Police in Crime No. 483/2006, it can be seen MACA Nos.21/2012 and 789/2013 9 that the offences mentioned against the driver of the lorry were under Sections 279 and 304 (A) of IPC alone. There is absolutely no allegation of driving the vehicle without any valid fitness certificate. Evidently, the Tribunal found that the vehicle did not have a fitness certificate by merely drawing an adverse inference from the fact that despite a direction being issued in I.A No.907/2007 to the 1st respondent to produce the fitness certificate the same was not produced. In the light of Annexure A1 and the lack of any mention of the non-possession of the fitness certificate for the vehicle at the relevant time in Ext. A8 final report, the contention raised by the 1[st] respondent cannot be ignored. Therefore, I am of the view that the 1[st] respondent, the appellant in M.A.C.A No. 789/2013 can be granted an opportunity to substantiate his contention with regard to the existence of a valid fitness certificate for the vehicle concerned. Therefore, to enable the 1st respondent to prove the said aspect, the award has to be set aside to a limited extent, where it was held that the vehicle was not covered with a valid fitness certificate at the time of the accident. MACA Nos.21/2012 and 789/2013 10 10. The next aspect to be considered is the quantum of compensation, which is the subject matter in M.A C.A No. 21/2012. The learned counsel for the petitioners would point out that the deceased was 17 years old and was a brilliant student. He was also very talented, and he performed well in extracurricular activities as well. To substantiate the same, Annexures A9 to A24 were relied on. According to the learned counsel for the petitioners, despite the above, the Tribunal took the annual income as Rs.15,000/- only. Thus, the compensation awarded under the head of loss of dependency was meagre. 11. After going through the materials placed on record, I find force in the said contention. As rightly pointed out by the learned counsel for the petitioners, Ext.A9 to A24 would certainly indicate the merit of the deceased in studies as well as extracurricular activities, which cannot be ignored while assessing the compensation for loss of dependency. The accident occurred in the year 2006, and therefore, by any standards, the annual income of Rs.15,000/- is extremely on the lower side, and the same requires reconsideration. It is to MACA Nos.21/2012 and 789/2013 11 be noted in this regard that when the method of computation of monthly income evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236] and **Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd.** [2014 (2) SCC 735], is taken into consideration, the monthly income of an ordinary employee for the year 2004 could be taken as Rs.4,500/- even in the absence of any evidence. Therefore, a reasonable monthly income in respect of the year 2006 could be determined as Rs.5,500/- for such an employee. In such circumstances, I am of the view that, even though the deceased was a non-earning member at the time of the accident, considering the merits and potential of the deceased as is discernible from the Ext. A9 to A24, the monthly income cannot be less than the amount mentioned above, which is Rs.5,500/-. Of course, while fixing the monthly income as Rs.5,500/-, I am conscious of the fact that the monthly income claimed in the claim petition was only Rs.4,000/-. As the deceased was a non- MACA Nos.21/2012 and 789/2013 12 earning member, at the relevant time, much significance cannot be given to the amount claimed in the claim petition as monthly income. Moreover, in **Minu Rout & Another v. Satyapradyumna Mohapatra & Ors.** [(2013) 10 SCC 695], the Honourable Supreme Court was pleased to take the monthly income of the deceased at a rate higher than claimed in the claim petition. Therefore, the mere fact that a lesser amount was shown as the monthly income in the claim petition, would not preclude the Court from taking a higher monthly income, if the facts and circumstances justify the same, as the ultimate object of the Court is to ensure "just compensation" to the victim. Therefore, I am inclined to accept Rs.5,500/- as the monthly income. In the light of **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)], 40% has to be added towards personal expenses. The multiplier applicable is '18'. Thus when compensation is reworked in the light of the above criteria, the amount would come to Rs.8,31,600/- [ (5,500 + 40%) x 12 x 18 x ½]. The amount already awarded by the Tribunal under this head is MACA Nos.21/2012 and 789/2013 13 Rs.1,50,000/- and hence the additional amount would come to Rs.6,81,600/-. 12. The learned counsel for the 3[rd] respondent/Insurance company at this juncture would point out that, after determining an amount of Rs.1,50,000/- a further sum of Rs. 75,000/- has been awarded by the Tribunal towards future prospects which has to be deducted. The said contention has to be accepted in view of the fact that, while fixing the compensation for loss of dependency as Rs.8,31,600/-, this Court has taken into consideration the future prospects by making an addition of 40% of the monthly. Therefore, Rs.75,000/- awarded by the Tribunal towards future prospects in the said head is to be deducted. Thus the actual additional compensation receivable under the head of loss of dependency would come to Rs.6,06,600/-. 13. The amounts awarded towards funeral expenses and loss of estate are only Rs.2,500/- each and in the light of **Pranay Sethi (supra),** the compensation under those heads ought to have been Rs.15,000/- each. Therefore, a further sums 14 MACA Nos.21/2012 and 789/2013 of Rs.12,500/- each is granted under the said heads. 14. The next head which requires consideration is the loss of consortium. Among the appellants, the 1st and 2nd appellants, being the parents, are entitled to compensation for filial consortium at the rate of 40,000/- each in the light of **Magma General Insurance Co.Ltd. v. Nanu Ram & Others** [2018 (3) KLT Online 3095 (SC)] and **United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur** [(2021) 11 SCC 780]. Thus, the total amount would come to Rs.80,000/-. However, the Tribunal has awarded an amount of Rs.15,000/- towards the loss of love and affection. In **Satinder** **Kaur** (supra), it was held that when compensation for loss of consortium is awarded, no separate compensation needs to be granted for loss of love and affection. Therefore, the said amount has to be adjusted towards the compensation fixed by this Court towards loss of consortium. Thus, the additional compensation would come to Rs.65,000/-. Accordingly, the total additional compensation is determined as Rs.6,96,600/[(6,06,600 + 12,500 + 12,500 + 65,000]. MACA Nos.21/2012 and 789/2013 15 In the result, both these appeals are disposed of with the following orders. i) The finding of the Tribunal granting the right of recovery to the 3[rd] respondent from the 1[st] respondent is hereby set aside and the matter is remanded back to the Tribunal for deciding the said question afresh. The said question shall be decided by the Tribunal afresh after giving a reasonable opportunity to the 1[st] and 3[rd] respondents in the claim petition. It is further ordered that, to enable the 1[st] respondent to raise the said contention, it shall be open for him to file a written statement raising the said contention and produce necessary documents to substantiate the same. The document to substantiate his contention as to the existence of a fitness certificate has to be produced by the appellant before the Tribunal within a period of four months from the date of appearance before the Tribunal thereafter the matter shall be decided by the Tribunal after appreciating the materials placed on record and hearing the 1[st] and 3[rd] respondent. MACA Nos.21/2012 and 789/2013 16 ii) The quantum of compensation awarded by the Tribunal is revised by granting an additional compensation of Rs.6,96,600/- (Rupee six lakhs ninety six thousand and six hundred only)and the said amount shall be deposited by the 3[rd] respondent herein, along with interest at the rate as ordered by the Tribunal and with proportionate cost. The right of the 3[rd] respondent to recover the said compensation from the 1[st] respondent shall be subject to the final outcome of the decision to be taken by the Tribunal in due course. iii) The Annexure A1 document is directed to be returned to the appellant after keeping a certified copy in the file. (iv) The 1[st] and 3[rd] respondents in the claim petition shall appear before the Tribunal on 18.03.2024 Sd/- **ZIYAD RAHMAN A.A.** **JUDGE** ASW/rpk