Moideenkunhi Haji and others v. Joseph P.K. Parackal and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943** ## **MACA NO. 1168 OF 2009** **AGAINST THE AWARD IN OP(MV)NO. 2922/2003 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANTS/PETITIONERS:** - **1 MOIDEENKUNHI HAJI,AGED 76 YEARS, S/O. LATE KAYAMU,** - **2 KOYAMU, S/O. MOIDEENKUNHI HAJI AGED 56 YEARS,** - **3 MARIYA, W/O. ABDULLA AGED 52 YEARS,** - **4 MUHAMMED, S/O. MOIDEENKNHI HAJI AGED 48 YEARS.** - **5 ABDULLAKUTTY, S/O. MOIDEENKUNHI HAJI AGED 38 YEARS.** - **6 ABDUL RASAK, S/O. MOIDEENKUNHI HAJI, AGED 40 YEARS.** - **7 SAKLEENA, W/O. AHAMMEDKUTTY AGED 36 YEARS.** - **8 JAMEELA, D/O. MOIDEENKUNHI HAJI AGED 32 YEARS,** **(ALL ARE RESIDING AT PULPARAMBIL (H), KARUVANPOYIL POST, VIA KODUVLY, KOZHIKODE)** **BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.PRAISHEEL PRAKASAM** MACA NO. 1168 OF 2009 _2_ ## **RESPONDENTS/RESPONDENTS:** - **1 JOSEPH P.K. PARACKAL HOUSE, CHENGAL, KALADI POST,, ERNAKULAM.** - **2 THE NEW INDIA ASSURANCE CO. LTD. ST. JOSEPH BUILDING, A.M. ROAD,, PERUMBAVOOR, ERNAKULAM.** **BY ADV SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 1168 OF 2009 _3_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1168 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of July, 2021 ## **JUDGMENT** The appellants were the petitioner in OP(MV)No.2922 of 2003 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of Amina (deceased) - the wife of the appellant and the mother of the appellants 2 to 8. 3. The concise case of the appellants in the claim petition, relevant for the determination of the MACA NO. 1168 OF 2009 _4_ appeal are : on 07.07.2003 while the deceased was walking through the Koduvally - Manipuram road, a Jeep bearing registration No.KL 07/ AC 4900 (offending vehicle) came from the opposite side at exorbitant speed and hit the deceased. The deceased was admitted to the Medical College Hospital, Kozhikode, where she lost her life on 17.07.2003. The accident occurred solely on account of the negligence on the part of the driver of the offending vehicle. The offending vehicle was owned by the 1[st] respondent and insured with the 2[nd] respondent. The deceased was a housemaid and was earning a monthly income of Rs.3,000/-. The appellants were dependants of the deceased and they claimed a compensation of Rs.1,99,000/-, but limited the same to Rs.1,50,000/- 4. The 1[st] respondent did not contest the proceedings and was set ex-parte. MACA NO. 1168 OF 2009 _5_ 5. The 2[nd] respondent filed a written statement admitting that the offending vehicle had a valid insurance policy. However, the 2[nd] respondent denied the other assertions in the claim petition. 6. The appellants marked Exts.A1 to A4 in evidence. 7. The Tribunal, after evaluating the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the 2[nd] respondent to pay the appellants an amount of Rs.66,000/- along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The 8[th] appellant was directed to receive the compensation. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. MACA NO. 1168 OF 2009 _6_ 9. Heard the learned Counsel appearing for the appellants and the learned Counsel appearing for the 2[nd] respondent. 10. The question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 11. Ext.A1 FIR substantiates the fact that the accident occurred on account of the negligence of the driver of the offending vehicle. Undisputedly, the offending vehicle was owned by the 1[st] respondent and insured with the 2[nd] respondent. Therefore, it is the 2[nd] respondent who is liable to indemnify the liability of the 1[st] respondent on account of the accident caused by the offending vehicle. 12. Ext.A2 postmortem certificate and Ext.A4 death certificate proves that the deceased expired on MACA NO. 1168 OF 2009 _7_ 17.07.2003 on account of the accident. ## **Notional income** 13. Although, the appellants had claimed that the deceased was a housemaid and getting an income of Rs.3,000/- per month, the Tribunal only awarded an amount of Rs.1,250/- per month. 14. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month 15. Considering the fact that the appellant was a housemaid and the accident occurred on 07.07.2003, I am of the firm opinion that the notional income of the appellant has to be fixed at Rs.3,000/- as claimed in the claim petition. Hence, I re-fix the notional income of the deceased at Rs.3,000/- MACA NO. 1168 OF 2009 _8_ ## **Multiplier** 16. It is seen that the deceased was 60 years at the time of her death. The Tribunal has fixed the multiplier at '5'. In the light of the law laid down in **Sarala Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802] the relevant multiplier is '9'. Hence, I re-fix the multiplier at '9'. ## **Personal living expenses** 17. Evenlthough, the appellants had claimed that they were all dependants on the deceased, it is only the 1[st] appellant – the husband of the deceased, who is seen dependant on the deceased because all the other appellants - the children of the deceased - were majors and leading independent life. Hence, I hold that the 1[st] respondent is the dependant of the deceased. Therefore, in the light of the law laid down in **Sarala Varma** (supra), I hold that ½ of the MACA NO. 1168 OF 2009 _9_ compensation under the head 'loss of dependency' has to be deducted towards personal living expenses of the deceased. ## **Future prospects** 18. In **Sarala Varma** (supra) an **d National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] the Honourable Supreme Court has held that the dependants of the deceased are entitled for future prospects at 10% if the deceased is 60 years. In such circumstances, I hold that the 1[st] appellant is **.** entitled for 'future prospects' at 10% ## **Loss of dependency** 19. In view of the re-fixation of the parameters namely the notional income of the deceased at Rs.3,000/-, multiplier at '9', future prospects at 10% and deducting ½ of the amount towards personal living expenses of the deceased, I re-fix the compensation under the head 'loss due to MACA NO. 1168 OF 2009 _10_ dependency' at Rs.1,78,200/- instead of Rs.50,000/fixed by the Tribunal. ## **Conventional Heads of compensation** 20. In Clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Honourable Supreme Court has held that the dependants of the deceased are entitled for compensation under the conventional heads namely, 'funeral expenses', 'loss of estate' and 'loss of consortium' at Rs.15,000/-, Rs.15,000/- and Rs.40,000/-, respectively. 21. In the light of the above ratio, I hold that the appellants are entitled for further enhancement of Rs.13,000/- under the head 'funeral expenses', an amount of Rs.15,000/- under the head 'loss of estate' and the 1[st] appellant is entitled for spousal consortium at Rs.40,000/- ## **Pain and suffering** 22. It is seen that the Tribunal has awarded an MACA NO. 1168 OF 2009 _11_ amount of Rs.5,000/- towards compensation for 'loss of love and affection' and Rs.5,000/- under the head 'pain and suffering'. 23. In the light of the law laid down by this Court in **Kunjandy v. Rajendran and others** [2020(2) KLT 315], wherein it is held that once compensation is awarded under the head 'loss of consortium', no compensation can be awarded under the head 'loss of love and affection', I set aside the compensation awarded under the head 'loss of love and affection'. 24. In **United India Insurance Company Ltd. v Satinder Kaur @ Satwinder Kaur and others** [2020 (3) KHC 760] the Honourable Supreme Court has held that the dependants of the deceased are not entitled for compensation under the head 'pain and suffering'. In the said circumstances, I set side the amount of Rs.5,000/- awarded under the head 'pain MACA NO. 1168 OF 2009 _12_ and suffering'. 25. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 26. On an overall re-appreciation of the pleadings and materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the afore-cited decisions, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Transport to hospital|1,000/-|1,000/-| |2|Funeral expenses|2,000/-|15,000/-| |4|Pain and sufferings|5,000/-|nil| |5|Love and affection|5,000/-|nil| |6|Loss of estate|nil|15,000/-| |7|Loss of consortium|nil|40,000/-| |8|Loss of dependencywith|50,000/-|1,78,200/-| MACA NO. 1168 OF 2009 _13_ ||future prospects||| |---|---|---|---| |||63000|2,49,200| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.1,86,200/- with interest on the enhanced compensation at the rate of 7.5% per annum from the date the appeal was admitted i.e., 30.03.2021 till the date of deposit. I limit the interest from the date of admission of the appeal, eventhough the appeal was presented on 31.03.2009 because the appellants had not taken steps to effect service of notice on the respondents. It is only on 30.03.2021 the steps were taken and the appeal was admitted. The appellants are also entitled for proportionate costs on the enhanced compensation. The 2[nd] respondent shall deposit the enhanced compensation before the Tribunal along with interest and proportionate costs within a period of two months from the date of MACA NO. 1168 OF 2009 _14_ receipt of a certified copy of this judgment. Considering the fact that only the 1[st] appellant was the dependant of the deceased as found by this Court in this judgment, I direct the Tribunal to disburse the enhanced compensation with interest and proportionate costs to the 1[st] appellant after deducting the liability of the appellants/petitioners, if any, towards balance court fee, on the enhanced compensation. **Sd/- C.S.DIAS,JUDGE** dlK 05.07.2021