Mohammedkutty and others v. Hakkim and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 8TH DAY OF MARCH 2016/18TH PHALGUNA, 1937** **MACA.No. 1922 of 2007 ( )** **--------------------------** **AGAINST THE AWARD IN OPMV 199/2004 of M.A.C.T OTTAPPALAM DATED 27-10-2006** **APPELLANT(S)/PETITIONERS: -------------------------** **1. MOHAMMEDKUTTY, AGED 59 YEARS, KUNDUPARAMBIL HOUSE, THALASSERY P.O., DESAMANGALAM VIA, THRISSUR.** **2. ABDUL NAZAR, 27 YEARS, S/O MOHAMMEDKUTTY, KUNDUPARAMBIL HOUSE, THALASSERY P.O., DESAMANGALAM VIA, THRISSUR.** **3. ABDUL HAKKIM,30 YEARS, S/O MOHAMMEDKUTTY, KUNDUPARAMBIL HOUSE, THALASSERY P.O., DESAMANGALAM VIA, THRISSUR.** **4. AASMA BEEVI, 30 YEARS, S/O MUHAMMEDKUTTY, KUNDUPARAMBIL HOUSE, THALASSERY P.O., DESAMANGALAM VIA, THRISSUR.** **5. NOORJAHAN, 22 YEARS, D/O MOHAMMEDKUTTY, KUNDUPARAMBIL HOUSE, THALASSERY P.O., DESAMANGALAM VIA, THRISSUR.** **6. RAMLATH, 18 YEARS, KUNDUPARAMBIL HOUSE, THALASSERY P.O., DESAMANGALAM VIA, THRISSUR,** **7. ABU THAHIR (MINOR, 11 YEARS) REP. BY HIS FATHER MOHAMMEDKUTTY, KUNDUPARAMBIL HOUSE, THALASSERY.** **BY ADV. SRI.SHEJI P.ABRAHAM** ## **RESPONDENT(S)/RESPONDENT:-:** **---------------------------** **1. HAKKIM, S/O MOHAMMEDKUTTY, C/O S.A.ALI, SOURIAN PERAMBIL HOUSE, P.O. THALASSERY, DESAMANGALAM, PIN - 680122** **2. S.A.ALI, SOURIAN PERAMBIL HOUSE, P.O.THALASSERY, DESAMANGALAM, THRISSUR-680122** **3. THE ORIENTAL INSURANCE CO.LTD., PRANAVAM, MELE PATTAMBI, PATTAMBI 670 306, P.NO.501/2004 VALID FROM 25.04.03 TO 24.4.2004,** **4. ABDUL KARIM, 30 YEARS, S/O MOHAMMEDKUTTY KUNDUPARAMBIL HOUSE, THALASSERY P.O., DESAMANGALAM VIA, THRISSUR-680122** **R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BKA/-** ## **P.R. RAMACHANDRA MENON, & ANIL K. NARENDRAN, JJ.** -------------------------------------------------M.A.C.A. No. 1922 of 2007 -------------------------------------------------Dated this the 8[th] day of March, 2016 ## **J U D G M E N T** ## Anil K. Narendran, J. The appeal is for enhancement of the compensation awarded by the Motor Accidents Claims Tribunal, Ottappalam, in OP(MV) No.199/2004 in respect of the death of one Sainaba, pursuant to a road traffic accident occurred on 25.12.2003. 2. The factual position revealed from the proceedings is that deceased Sainaba was a co-passenger in an autorikshaw, bearing Reg.No.KL-8/F-4755; and while so, when the autorikshaw reached the place of occurrence, it hit against a compound wall and capsized, ultimately resulting in her death, which was sought to be compensated by the legal representatives of the deceased by filing a claim petition before the Tribunal. Respondents 1 to 3 are the driver, owner and insurer of the M.A.C.A. No. 1922 of 2007 **==> picture [20 x 8] intentionally omitted <==** autorikshaw. The 4[th] respondent is one of the legal heir of the deceased Sainaba. Another three persons, who were travelling in the autorikshaw, also bid farewell to the world because of the serious injuries and the accident caused injuries to one person as well, which led to separate claim petitions. All the claim petitions were tried together, leading to the common award dated 27.10.2006. 3. The matter was contested mainly by the 3[rd] respondent insurer. Respondents 1 and 4 remained ex parte. The policy was admitted by the respondent insurer. But, it was not admitted that the 1[st] respondent, who was the driver of the autorikshaw, was having a valid driving licence at the time of the accident. Contention was raised by the respondent insurer with regard to quantum and negligence also. 4. The evidence adduced before the Tribunal consists of Exts.A1 to A23 from the side of the claimants. PWs 1 & 2 were examined from the side of the claimants. M.A.C.A. No. 1922 of 2007 **==> picture [20 x 8] intentionally omitted <==** No oral or documentary evidence was adduced from the side of the respondents. 5. Based on the relevant materials on record, the Tribunal arrived at a finding that the accident occurred solely because of the negligence on the part of the 1[st] respondent, who was the driver of the autorikshaw, and proceeded to fix the compensation accordingly. 6. Coming to the quantum of compensation payable, the case projected by the appellants was that the deceased was a coolie, earning 3,000/- per month.₹ Referring to the serious consequences resulted because of the death, a total sum of 4,00,000/- was claimed. The₹ Tribunal, after deducting the 1/3[rd] of the income towards personal and living expenses of the deceased, fixed ₹2,000/- as her notional monthly income for working out loss of dependency. Awarding amounts under different heads, total compensation was fixed as 3,04,000/- and₹ cost of 5,000/-. The liability, accordingly, was mulcted₹ upon the shoulders of the respondent insurer. M.A.C.A. No. 1922 of 2007 **==> picture [20 x 8] intentionally omitted <==** 7. Inadequacy of the compensation awarded by the Tribunal is the subject matter of challenge in this appeal. 8. Heard the learned counsel for the appellant and the learned counsel for the 3[rd] respondent insurer. 9. The amounts awarded by the Tribunal under different heads as given in paragraph 13 are as follows; Loss of dependency ₹2,64,000/Loss of love and affection & all other non-pecuniary loss ₹30,000/Travelling expenses ₹5,000/For funeral expenses ₹5,000/---------------- Total ₹3,04,000/======= 10. At the time of the accident, the deceased was 18 years old. The appellants contended that the deceased was a coolie, earning a monthly income of 3,000. The₹ Tribunal has fixed the monthly income of the deceased as ₹3,000/-; and deducting 1/3rd of the monthly income towards personal and living expenses of the deceased, ₹ 2,000/- was reckoned for the purpose of calculating dependency compensation. Adopting the multiplier of M.A.C.A. No. 1922 of 2007 **==> picture [20 x 8] intentionally omitted <==** '11', the Tribunal awarded a sum of 2,64,000/- towards₹ dependency compensation. At the time of the accident, the deceased was aged only 18 years. There was absolutely no reliable evidence to show that at the age of 18 years, she was earning her livelihood as a coolie worker. In such circumstances, the notional income fixed by the Tribunal warrants no enhancement in this appeal. However, we find that at the time of the accident, the deceased was unmarried. In such circumstances, only 50% of the notional income can be reckoned for calculating dependency compensation, deducting the balance 50% towards her personal and living expenses. Further, since the deceased was aged 18 years, the proper multiplier that could have been adopted by the Tribunal is '18'. In such circumstances, on reworking the dependency compensation, the appellants will be entitled to get 3,24,000/- (3000 x 12 x 18 x₹ 50/100). The Tribunal awarded a sum of 2,64,000/-₹ under this head. In the result, the appellants will be M.A.C.A. No. 1922 of 2007 **==> picture [20 x 8] intentionally omitted <==** entitled to get an additional compensation of **₹60,000/-** towards dependency compensation. 11. Towards loss of love and affection, the Tribunal awarded a sum of 30,000/-. ₹ In **Rajesh** v. **Rajbir Singh** [2013 (3) KLT 89 SC], the Apex Court held that amounts payable under the head, loss of love and affection, is to be at the rate of 1,00,000/-. But, the accident in the said₹ case was in the year 2007. In the instant case, the accident occurred in the year 2003. At the time of the accident, the deceased was aged 18 years and the appellants were aged 56, 24, 27, 27, 19, 15 and 8 years respectively. Therefore, striking a balance, we deem it appropriate to refix the compensation under the head, loss of love and affection, as 75,000/-. Thus, the₹ appellants will be entitled to get an additional compensation of **₹45,000/-** towards loss of love and affection. 12. Towards funeral expenses, the Tribunal has awarded only a sum of 5,000/-. In₹ **Rajesh** 's case (cited M.A.C.A. No. 1922 of 2007 **==> picture [20 x 8] intentionally omitted <==** supra), the Apex Court awarded a sum of 25,000/-₹ towards funeral expenses. In that case, the accident was of the year 2007. However, in the instant case, the accident occurred in the year 2003. In such circumstances, we deem it appropriate to refix compensation under this head as 15,000/-. Thus, the₹ appellants will be entitled for an additional compensation of **₹10,000/-** towards funeral expenses. 13. The Tribunal has not awarded any amount under the head, loss of estate. Considering the facts and circumstances of the case, we deem it appropriate to grant a sum of **₹10,000/-** towards loss of estate. 14. Towards pain and suffering, no compensation has been awarded by the Tribunal. Though the deceased died on the date of the accident itself, considering the ordeal undergone as a result of the serious injuries sustained in the accident, we deem it appropriate to award a compensation of ₹ **10,000/-** towards pain and suffering. M.A.C.A. No. 1922 of 2007 ..8.. 15. In the result, the appellants are entitled to get an additional compensation of **₹1,35,000/-** (Rupees one lakh and thirty five thousand only) in this appeal. 16. Though the 3[rd] respondent insurer has taken a contention that the 1[st] respondent, who was the driver of the autorikshaw, was not having a valid driving licence, in the absence of any challenge made by the 3[rd] respondent insurer in this regard by filing either an appeal or a cross objection, we find it unnecessary to go into the aforesaid contention. 17. A reading of the Award passed by the Tribunal would show that, instead of granting interest from the date of petition, the Tribunal has ordered as follows; “Hence the OP 199/04 is allowed directing the respondents 1 to 3 to pay to the petitioners the compensation of Rs.3,04,000/- and cost of Rs.5000/- within 30 days from the date of receipt of a copy of award failing which the Tribunal is to execute the award suo-moto to realise the award amount with 6% interest thereafter till the date of realisation.” 18. We find absolutely no grounds to sustain the above order of the Tribunal. We hold that, the appellants will be entitled for interest @ 8% per annum from the M.A.C.A. No. 1922 of 2007 **==> picture [20 x 8] intentionally omitted <==** date of petition till realization for the compensation awarded by the Tribunal as well as for the additional compensation awarded in this appeal. 19. While disbursing the additional compensation awarded in this appeal, the very same ratio fixed by the Tribunal while awarding the compensation, has to be followed. Since the insurance coverage of the vehicle is not in dispute, the 3[rd] respondent insurer shall deposit the additional compensation awarded in this appeal along with interest at the rate of 8% per annum from the date of petition before the Tribunal. 20. The appeal was filed with a delay of 256 days, which was condoned as per order in C.M.Appl. No.1992/2007 dated 25.02.2016 subject to the condition that, if, at all, any enhancement is ordered, the appellants will not be entitled to get interest for the period of delay. Therefore, the 3[rd] respondent insurer shall deposit the additional compensation awarded in this appeal together with interest @ 8% per annum from the date of petition, M.A.C.A. No. 1922 of 2007 **==> picture [26 x 8] intentionally omitted <==** except for the aforesaid period of delay of 256 days in filing this appeal, within one month from the date of receipt of a certified copy of this judgment. Along with the said deposit, the 3[rd] respondent insurer shall deposit the amount payable to the appellants towards balance interest, if any, for the original compensation, from the date of petition till realisation. The appeal is disposed of as above. Sd/- **P.R. RAMACHANDRA MENON JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** bka/- //True copy// PA to Judge