Musaiba and others v United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 MACA NO. 2009 OF 2013** **OPMV NO.1181 OF 2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,** ## **MANJERI** ## **APPELLANTS/PETITIONERS:** - **1 MUSAIBA, AGED 36 YEARS W/O. MUHAMMED SHAREEF K.M. (LATE), KILIYAMANNIL HOUSE, VATTALLUR, MALAPPURAM DISTRICT.** - **2 MUSTAFA SHEREEN (MINOR), AGED 16 YEARS S/O. MUHAMMED SHAREEF K.M. (LATE), KILIYAMANNIL HOUSE, VATTALLUR, MALAPPURAM DISTRICT, REPRESENTED BY GUARDIAN MOTHER 1ST APPELLANT.** - **3 MOHAMMED SHABIL (MINOR), AGED 13 YEARS S/O. MUHAMMED SHAREEF K.M. (LATE), KILIYAMANNIL HOUSE, VATTALLUR, MALAPPURAM DISTRICT, REPRESENTED BY GUARDIAN MOTHER 1ST APPELLANT. BY ADV SRI.U.K.DEVIDAS** ## **RESPONDENT/3RD RESPONDENT:** **THE UNITED INDIA INSURANCE CO.LTD BRANCH OFFICE, D.O.NO.1, VETTUKATTIL BUILDING, M.G.ROAD, ERNAKULAM (INSURER)-682011.** ## **ADV P K MANOJKUMAR-RES** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.2009/2013 : 2 : ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1181/2008 on the files of the Motor Accident Claims Tribunal, Manjeri. The said claim petition was submitted by the appellants seeking compensation for the death of one Mohammad Sheriff K.M., due to the injuries sustained in a motor accident that occurred on 18.06.2008. He was the husband of the 1[st] appellant and the father of the 2[nd] and 3[rd] appellants. 2. According to the appellants, the accident occurred when the autorickshaw driven by the deceased was hit by a stage carriage, driven by the 1[st] respondent in a rash and negligent manner. The 2[nd] respondent was the owner of the said stage carriage and it was insured with the 3[rd] respondent. The deceased was an autorickshaw driver with a monthly income of Rs.6,000/-. He was aged 44 years at the time of the accident. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent filed a written statement admitting the coverage of policy for the stage carriage. However, they denied the negligence on the part of the 1[st] respondent in driving the bus. M.A.C.A. No.2009/2013 : 3 : The quantum of compensation was also disputed by them. 4. To substantiate the contentions, the appellants produced Ext.A1 to A12 series. No evidence was adduced by the respondents. 5. After examining the materials placed on record, the tribunal found that the accident occurred due to the negligence on the part of the 1[st] respondent in driving the stage carriage. The 2[nd] and 3[rd] respondents, being the owner and the insurer of the said vehicle were held jointly and severally liable to pay the compensation along with the 1[st] accused. As the vehicle was covered with a valid policy, the 3[rd] respondent was directed to deposit the compensation. The quantum of compensation was determined as Rs.5,11,204/- and the said amount was directed to be deposited with interest at the rate of 9% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted by the appellants in such circumstances being dissatisfied with the quantum of compensation. 6. Heard Sri. U.K. Devidas, the learned counsel appearing for the appellants and Sri. P.K. Manoj Kumar, the learned counsel appearing for the 3[rd] respondent. M.A.C.A. No.2009/2013 : 4 : 7. The only question that arises for consideration is whether the appellants are entitled to enhancement of compensation as claimed in the appeal. On going through the materials placed on record, it is seen that, even though a monthly income of Rs.6,000/- was claimed, the tribunal fixed the monthly income of the deceased as only Rs.3,500/- which appears to be on the lower side. Besides the same, no addition was made towards future prospects as well. Considering the fact that the accident occurred in the year 2008, the monthly income of Rs.3,500/appears to be very meagre. It is to be noted in this regard that, when the method of computation evolved from the principles laid down by the Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] is taken into account, the monthly income for the year 2008 can be reasonably fixed as Rs.6,500/- (taking the basic monthly income as Rs.4,500/- for the year 2004 and by making an addition of Rs.500/- each per year for determining the monthly income for subsequent years). In this case, the monthly income claimed as only Rs.6,000/-. However, it M.A.C.A. No.2009/2013 : 5 : is a fact that the appellant was an autorickshaw driver, which is established from the manner in which the accident occurred. It is to be noted that at the relevant time, the autorickshaw which met with the accident was being driven by the deceased himself. As far as the income of an autorickshaw driver is concerned, it is not likely to be a fixed monthly income and it varies from month to month. Therefore, the mere fact that a slightly lesser monthly income was shown in the claim petition, should not preclude the tribunal or this Court from taking a reasonable monthly income as per the standards prevailed at the relevant time. I have already observed that, in the light of the decisions referred to above, the reasonable monthly income for the year 2008 can be fixed as Rs.6,500/. Therefore, I am of the view that, the said monthly income can be fixed in this case, even though the actual claim in this regard was slightly lesser. The view taken by this Court is fortified by the observations made by the Hon'ble Supreme Court in **Minu Rout and another v. Satya Pradyumna Mohapatra and others** [2013 (10) SCC 695] wherein, the Hon'ble Supreme Court was pleased to take higher monthly income than claimed in the claim petition. Since the deceased was aged 44 years at the time of the accident, M.A.C.A. No.2009/2013 : 6 : an addition of 25% of the monthly income could be made towards future prospects. Thus, while reassessing the compensation with the above revised monthly income with future prospects, the amount of compensation of loss of dependency comes to Rs.9,10,000/- [(6500+25000)x12x14x2/3]. The amount already awarded by the tribunal is Rs.3,92,000/-. Thus, the additional amount of compensation comes to Rs.5,18,000/-. 8. The tribunal awarded Rs.5,000/- only towards compensation for loss of estate whereas the actual amount in the light of **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] was Rs.15,000/-. Therefore, a further sum of Rs.10,000/- is awarded towards loss of estate. For the same reason, a further amount of Rs.12,000/- is awarded towards funeral expenses, as the amount awarded by the tribunal under this head was only Rs.3,000/-. Yet another aspect to be noticed is that the appellant died after 16 days of the accident, while undergoing treatment in hospital. Therefore, some reasonable compensation has to be granted towards pain and suffering of the deceased. In the fact and circumstances of the case, I deem it appropriate to fix it as Rs.10,000/-. Similarly, even though 16 days of hospitalization M.A.C.A. No.2009/2013 : 7 : was there, no amount was granted towards bystander expenses. Considering the fact that, the accident occurred in the year 2008, I find it proper to fix Rs.150/- as the expenses incurred in this regard per day and this would result in a further compensation of Rs.2,400/- towards bystander expenses. 9. The next head which requires consideration is loss of consortium. The appellants 1 to 3, being the wife and the children of the deceased were entitled to compensation for loss of consortium at the rate of Rs.40,000/- each, thereby making a total sum of Rs.1,20,000/- in the light of the decision of the Honourable Supreme Court in **United India Insurance Co. Ltd V. Satinder Kaur @ Satwinder Kaur and other** [2020 (3) KHC 760]. The tribunal has already awarded an amount of Rs.10,000/- towards loss of consortium and a further sum of Rs.10,000/- towards loss of love and affection. In **United India Insurance Co. Ltd V. Satinder Kaur @ Satwinder Kaur and other** [2020 (3) KHC 760],it was categorically observed by the Hon'ble Supreme Court that, when compensation for loss of consortium is awarded, no separate compensation needs to be granted for loss of love and affection. Therefore, the amount of Rs.10,000/- awarded by the tribunal M.A.C.A. No.2009/2013 : 8 : towards loss of love and affection can be adjusted against the amount of compensation fixed by this Court for loss of consortium. Thus, the additional compensation under that head is determined as Rs.1,00,000/-. Accordingly, the total additional compensation is determined as Rs.6,52,400/- [518000+10000+12000+10000+ 2400+100000]. In the result, this appeal is allowed. The award dated 22.03.2012 passed by the Motor Accident Claims Tribunal, Manjeri in OP(MV) No.1181/2008 is hereby modified by granting an additional compensation of Rs.6,52,400/- (Rupees six lakhs fifty two thousand and four hundred only) and the 3[rd] respondent is directed to deposit the said amount along with interest at the rate of 7.5% per annum from the date of petition till realiation. However, it is clarified that as the delay of 427 days in filing the appeal was condoned by this Court subject to the condition that the appellants shall not be entitled for interest for the said period, the 3[rd] respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further ordered that the claimants shall furnish the details of the PAN card, Aadhar card and bank details to enable the 3[rd] respondent to make M.A.C.A. No.2009/2013 : 9 : the deposit as ordered above, within a period of two months from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the insurance company to deposit the said amount before the tribunal. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd