## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
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THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
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MACA NO. 2657 OF 2014
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AGAINST THE AWARD DATED 28.04.2014 IN O.P(M.V) NO.849/2013 OF
PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE
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## **`APPELLANT/PETITIONER:`**
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MUHAMMED
SON OF ABDULRAHIMANKUTTY, PUNACHIKUZHIYIL HOUSE,
P.O.POOVATTUPARAMBA, KOZHIKODE DISTRICT-673 008.
BY ADV SRI.JACOB ABRAHAM
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## **`RESPONDENT/RESPONDENTS:`**
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1ABDUL NAZAR,
SON OF MUHAMMED, EDAPALATHIL HOUSE, KEEZHUPARAMBA P.O.,
AREEKODE, MALAPPURAM DISTRICT-673 639.
2SAKIRALI, SON OF MOHAMMED, 3/224, EDAPALATHIL
MANNANDALA HOUSE, KEEZUPARAMBA P.O., AREEKODE,
MALAPPURAM DISTRICT-673639.
3THE NEW INDIA ASSURANCE CO.LTD.
MANJERI BRANCH, VAIKKODAN BUILDING, 1ST FLOOR,
NILAMBUR ROAD, MANJERI-676121.
BY ADVS.
R1 AND R2 BY SRI.PHIJO PRADEESH PHILIP
BY SRI.AJAY SHANKAR(K/749/2009)
R3 BY SRI.SEBASTIAN VARGHESE(K/141/2000)
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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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MACA NO. 2657 OF 2014
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## **JUDGMENT**
## Dated this the 23[rd] day of March, 2023
This appeal is directed against an award passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short ‘the Tribunal’) on 28.04.2014 in O.P(M.V) No.849/2013. The appellant is the petitioner before the Tribunal.
2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition.
3. The petitioner is the legal representative of one Mrs.Ayisha who had met with a Motor Accident at about 5 p.m. on 22.01.2011 at Kozhikode. She was walking along the side of the public road at Kozhikode and a Motorcycle bearing registration No.KL-10Z 4745 knocked her down. She sustained serious injuries and was rushed into Medical College Hospital,
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Kozhikode for treatment. During the course of treatment, she succumbed to the injures received by her in the motor accident. Alleging that the motor accident was occurred due to the rash and negligent riding of the Motorcycle by the 1[st] respondent and claiming for a sum of Rs.3,00,000/- as compensation, the Original Petition on hand was filed. The rider, the owner and the insurer of the Motorcycle were arrayed as respondents 1 to 3 in the above Original Petition.
4. On summons being served, all the respondents entered appearance. Written statement was filed by all of them. According to respondents 1 and 2 negligence was not there on the part of the 1[st] respondent and therefore he was not responsible for causing the motor accident. It was contented that the motor accident was occurred due to negligence of Mrs.Ayisha alone. The amount claimed as compensation is also disputed. The 1[st] respondent was contended as not holding a valid driving license at the relevant time and therefore, the 3[rd] respondent is not liable to indemnify the 2[nd] respondent, for his violation of policy conditions.
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Admittedly the offending Motorcycle was validly insured with the 3[rd] respondent at the relevant time of the motor accident.
5. Exts.A1 to A7 were marked on the side of the petitioner and Exts.B1 and B2 were marked on the side of the 3[rd] respondent. The Tribunal found on the basis of the evidence on record that the motor accident was occurred due to the rash and negligent riding of the Motorcycle by the 1[st] respondent. It also found that the petitioner, the only son of deceased Ayisha is entitled to get compensation for her death following injuries sustained in the motor accident. Rs.75,000/was arrived at as the compensation payable. The 3[rd] respondent, the insurer was directed by the Tribunal to deposit the amount arrived at as compensation infavour of the petitioner and to get recovery of the same from the 2[nd] respondent, on being convinced from the evidence that the 1[st] respondent, rider, was not holding a valid driving license to ride the Motorcycle at the relevant time.
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6. The contention mainly raised by the learned counsel for the petitioner was that the monthly income of the deceased was fixed by the Tribunal notionally as Rs.2,000/-. The deceased was claimed by him to be a house wife, having a monthly income of Rs.6,000/-. According to him, the monthly income of a house wife is not liable to be assessed in terms of money. The claim being made for Rs.6,000/- and the accident being occurred in the year 2011, this Court is inclined to fix Rs.6,000/- itself as the monthly income of the deceased for arriving at the compensation payable. The deceased was aged 80 years and therefore future prospects is not liable to be considered. 5 taken by the Tribunal as multiplier being correct is maintained.
7. A contention was taken by the learned counsel for the 3[rd] respondent that Tribunal had incorrectly deducted 1/3[rd] from the compensation instead of 1/2 in consideration of personal expenditure of the deceased. But it is pertinent to note from the Original Petition on hand that the deceased Ayisha was the wife of one Mr.Abdulrahiman Kutty. Therefore
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the deceased being married, the argument of the learned counsel for the 3[rd] respondent to take a deduction of 1/2 in consideration of personal expenditure is only to be discarded. Tribunal has correctly deducted 1/3[rd] from the total compensation in consideration of personal expenditure and this court maintains that .
8. The contention secondly raised by the petitioner was on the meagreness in the quantum of compensation stands awarded under the conventional heads. According to him, the Constitution Bench in **National insurance Company Ltd. v Prany Sethi and Ors.** [2017 (4) KLT 662 (SC)] fixed Rs.16,500/- each as the compensation payable towards loss of estate as well as funeral expenses and the quantum of compensation payable towards loss of consortium as Rs.44,000/- per head. According to him in that context petitioner is entitled to receive compensation accordingly.
9. It is noticed that the monthly income for the purpose of computation of compensation for loss of
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dependency was taken by the Tribunal as Rs.2,000/-. As rightly pointed out by the learned counsel for the petitioner the monthly income of a house wife cannot be assessed in terms of money. Decisions are innumerable, where the Apex Court had directed to consider a reasonable sum as the monthly income of a house wife. Therefore Rs.6,000/- as per the claim of the petitioner itself is fixed as her monthly income at the relevant time. The deceased being aged 80 years at the relevant time of the motor accident, consideration of future prospects is declined. Multiplier adopted and deduction of 1/3rd considered by the Tribunal are maintained.
10. When compensation for loss of dependency is calculated with Rs.6,000/-, the modified monthly income and all other factors maintained, a sum of Rs.2,40,000/(Rs.6,000/- x 12 x 5 x 2/3) was arrived at. The Tribunal has awarded Rs.40,000/- as compensation under that head, but mistakenly shown that in the Table as compensation awarded towards loss of estate. Rs.40,000/- when deducted from the sum now arrived at, the petitioner will get
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Rs.2,00,000/- (Rs.2,40,000/- - Rs.40,000/-) as additional compensation.
11. Towards loss of estate, the Tribunal failed to award any sum as compensation and this Court awards Rs.16,500/-. Towards funeral expenses, Rs.10,000/- stands awarded by the Tribunal and the petitioner is entitled to get Rs.6,500/- as additional compensation. Towards loss of consortium, the Tribunal failed to award any sum and the entitlement of the petitioner being for Rs.44,000/-, the same is awarded.
12. In the above manner of reassessment, Rs.2,67,000/- is arrived at. Petitioner being the legal representative of the deceased is not entitled to get Rs.15,000/- and Rs.8,000/- stands awarded by the Tribunal towards loss of love and affection and pain and suffering. Therefore, Rs.23,000/- (Rs.15,000/- + Rs.8,000/-) is deducted from Rs.2,67,000/- to arrive at the actual compensation payable in addition.
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13. Thus, Rs.2,44,000/- (Rupees Two lakhs forty four thousand only) [(Rs.2,00,000/- + Rs.16,500/- + Rs.44,000/+Rs.6,500/-) - Rs.23,000/- ] is arrived at as additional compensation and that is awarded. It will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation, excluding a period of 45 days, being the period of delay occurred while filing the appeal on hand.
14. The Tribunal on the basis of a chargesheet filed by the investigating agency in Crime No.292/2011, registered with reference to the motor accident in question found that the 1[st] respondent was not holding a valid driving license to drive the vehicle at the relevant time of the motor accident. Evidence was not let in by the 1[st] respondent to establish on the contrary and therefore violation of a policy condition by 1[st] and 2[nd] respondents stands established. The finding having not been challenged either by the 1[st] or 2[nd] respondent before this Court, is maintained.
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15. Accordingly, the 3[rd] respondent is directed to pay the compensation stands awarded by the Tribunal with interest fixed (if not already paid) and the additional compensation now arrived at with interest fixed for it within two months from the date of receipt of a certified copy of this judgment, in accordance with directions issued by this Court in Circular No.03/2019 dated 06.09.2019. The 3[rd] respondent is also permitted to get the compensation recovered from respondent No.2 after paying it in favour of the petitioner.
M.A.C.A stands allowed accordingly.
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Sd/-
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**MARY JOSEPH JUDGE**
saap
