National Insurance Company Ltd. v. Rasiya; Manas; Thasni; NayeeF (MACA No.1483 of 2016) with CO No.151 of 2016

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`MONDAY, THE 25[TH] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946`** ## **`MACA NO. 1483 OF 2016`** ``` AGAINST THE AWARD DATED 12.02.2016 IN OP(MV) NO.251 OF 2013 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, VATAKARA ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` NATIONAL INSURANCE CO.LTD., THALASSERY, REP. BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD,ERNAKULAM, COCHIN-682035. ``` ``` BY ADV. SRI.E.M.JOSEPH ``` ## **`RESPONDENTS/CLAIMANTSS:`** |**`1`**|**`RASIYA,`**| |---|---| ||**`AGED 49 YEARS`**| ||**`W/O. LATE MAMMED, CHERIYANA HOUSE,`**| ||**`AYANIKKAD, P.O.AYANIKKAD, KOYILANDI-673 521.`**| |**`2`**|**`MANAS,`**| ||**`AGED 29 YEARS`**| ||**`S/O. LATE MAMMED,CHERIYANA HOUSE,`**| ||**`AYANIKKAD,P.O.AYANIKKAD, KOYILANDI-673 521.`**| |**`3`**|**`THASNI`**| ||**`AGED 27 YEARS`**| ||**`D/O. LATE MAMMED,`**| ||**`CHERIYANA HOUSE, AYANIKKAD,P.O.AYANIKKAD,`**| ||**`KOYILANDI-673 521.`**| |**`4`**|**`NAYEEF,`**| ||**`AGED 25 YEARS,`**| ||**`S/O. LATE MAMMED, CHERIYANA HOUSE,`**| ||**`AYANIKKAD,P.O.AYANIKKAD, KOYILANDI-673521.`**| ``` BY ADV. SRI.T.G.RAJENDRAN ``` ``` THIS APPEAL HAVING COME UP FOR HEARING ON 25.03.2024, ALONG WITH CO.151/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.1483/2016 & CO NO.151/2016 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` MONDAY, THE 25[TH] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 ``` ## **`CO NO. 151 OF 2016`** ``` AGAINST THE AWARD DATED 12.02.2016 IN OP(MV) NO.251 OF 2013 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, VATAKARA ``` ## **`CROSS OBJECTOR/RESPONDENTS 1 TO 4:`** ``` 1RASIYA, AGED 52 YEARS, W/O.MAMMED, CHERIYANA HOUSE, AYANIKKAD AMSOM DESOM, AYANIKKAD P.O., KOYILANDY TALUK 673 521. ``` ``` 2MANNAS MUHAMMED, AGED 32 YEARS, S/O.MAMMED, CHERIYANA HOUSE, AYANIKKAD AMSOM DESOM, AYANIKKAD P.O., KOYILANDY TALUK 673 521. ``` ``` 3THASNI, AGED 30 YEARS, D/O.MAMMED, CHERIYANA HOUSE, AYANIKKAD AMSOM DESOM, AYANIKKAD P.O., KOYILANDY TALUK 673 521. ``` ``` 4NAYEEF, AGED 28 YEARS, S/O.MAMMED, CHERIYANA HOUSE, AYANIKKAD AMSOM DESOM, AYANIKKAD P.O., KOYILANDY TALUK 673 521. ``` ``` BY ADV. SRI.T.G.RAJENDRAN ``` ## **`RESPONDENTS / APPELLANT:`** ``` M/S NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, THALASSERY, EMPEE TOWER, TOWN HALL JUNCTION, CHIRAKKARA P.O., THALASSERY TALUK 670 104. BY ADV. SRI.E.M.JOSEPH ``` ``` THIS CROSS OBJECTION HAVING COME UP FOR HEARING ON 25.03.2024, ALONG WITH MACA.1483/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.1483/2016 & CO NO.151/2016 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 25[th] day of March, 2024** MACA No.1483 of 2016 is filed by the 3[rd] respondent, who was the insurer of the offending vehicle against the award passed by Motor Accidents Claims Tribunal, Vatakara (for short, ‘the Tribunal’). 2. Cross Objectors are claimants who are none other than the legal representatives of one Mr.Muhammed, who died due to the injuries sustained in a motor accident occurred on 23.10.2012. The quantum of compensation stood awarded by the Tribunal is under challenge in the appeal as well as in the cross objection. 3. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 1 to 4 and respondents 1 to 3 in accordance with their status in the Original Petition. 4. According to the 3[rd] respondent, the Tribunal has overlooked the directions issued by the Apex Court in **National** ``` MACA NO.1483/2016 & CO NO.151/2016 ``` ``` 4 ``` ## **Insurance Company Ltd. v. Pranay Sethi and Others** **[2017 (4) KLT 662 (SC)]** while calculating compensation payable to the petitioners. According to him, that being the context, interference is warranted to reassess the compensation in tune with the directions of the Apex Court. 5. According to the Cross Objectors, the monthly income of the deceased was fixed by the Tribunal as `5,000/-. According to them, the motor accident being occurred in the year 2012, the Tribunal ought to have taken a higher sum than `5,000/- as the monthly income and calculated compensation on its basis. 6. The motor accident in the case on hand was occurred at about 8.45 pm on 23.10.2012. One Mr.Muhammed was travelling as pillion rider in a motorcycle bearing Registration No.KL 56 D 3891 and a motorcycle bearing Registration No.KL 18 C 4372 dashed against and thereby he sustained serious injuries. He was rushed to Baby Memorial Hospital, Calicut for treatment, but he succumbed to the injuries during the course of treatment. Postmortem examination of his body was ``` MACA NO.1483/2016 & CO NO.151/2016 ``` ``` 5 ``` conducted at Medical college Hospital, Calicut. Alleging that the motor accident was occurred due to the rash and negligent riding of motorcycle bearing Registration No. KL 18 C 4372 by its rider and claiming a total sum of `20,00,000/- as compensation, the above Original Petition was filed by his legal representatives before the Tribunal. 7. The registered owner of the motorcycle, its rider and it’s insurer were arrayed as respondents 1 to 3 in the Original Petition. All respondents were served with notice from the Tribunal, but 1[st] and 2[nd] respondents did not turn up to contest . the Original Petition and were declared as _ex parte_ 8. 3[rd] respondent filed written statement admitting issuance of a valid policy for the motorcycle bearing Registration No. KL 18 C 4372 covering the date of the motor accident. The claim of the petitioners regarding the age, the occupation and the monthly income of the deceased at the relevant time were denied. Compensation claimed is also disputed for it’s exorbitance. ``` MACA NO.1483/2016 & CO NO.151/2016 ``` ``` 6 ``` 9. Petitioners have adduced documentary evidence as Exts.A1 to A9 series and the 3[rd] respondent as Ext.B1. On the basis of the evidence on record, the Tribunal arrived at a finding that the motor accident in question was occurred due to the rash and negligent riding of the motorcycle bearing Registration No. KL 18 C 4372 by its rider, who was arrayed as the 2[nd] respondent. The Tribunal also found that the petitioners on account of the death of Mr.Muhammed in the motor accident are entitled to get compensation. A sum of `8,50,000/- was arrived at as the compensation payable. The 3[rd] respondent insurer was directed to deposit the same with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation. Proportionate costs was also ordered. 10. The monthly income of the deceased fixed by the Tribunal as `5,000/- is too low when compared to the cost of living and price index prevalent in the year 2012. Even in the case of a coolie worker, the Apex Court had fixed `4,500/- as the monthly income in the year 2004 **(Ramachandrappa vs.** ``` MACA NO.1483/2016 & CO NO.151/2016 ``` ``` 7 ``` **Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236])** . This Court finds `8,500/- a reasonable sum and the monthly income of the deceased is refixed accordingly. 11. It is pertinent to note that the Tribunal failed to deduct the sum, the victim of the motor accident would have spent towards his personal needs, had he been alive after the motor accident. He was survived by his wife and three children. Therefore, ¼[th] is liable to be deducted towards his personal expenditure. 12. It is also noticed that the Tribunal has awarded excess sum than that was payable towards loss of estate and funeral expenses and failed to award the sum payable towards loss of consortium. The Tribunal has awarded `1,00,000/towards loss of consortium in favour of the 1[st] petitioner. Thus, the Tribunal failed to follow the directions of the Apex Court in **Pranay Sethi** supra. For the reason that a wrong calculation was adopted by the Tribunal while arriving at the compensation payable to the petitioners, this Court feels it appropriate to ``` MACA NO.1483/2016 & CO NO.151/2016 ``` ``` 8 ``` re-calculate the compensation after setting aside the award only to the extent the Tribunal awarded compensation. The finding of the Tribunal under point No.1 that the petitioners in O.P. (MV) No.251 /2013 are entitled to get compensation from respondents is maintained. 13. The victim of the motor accident died at Baby Memorial Hospital, Kozhikode while undergoing treatment for the injuries sustained by him in the motor accident. The age of the deceased was shown in the Original Petition as 59 years. Though dispute was raised against the claim of age, petitioners failed to establish the date of birth through an authentic document. In the above circumstances, there is every reason to base the certificate of postmortem examination for considering the age of the deceased. The certificate of postmortem examination was marked in evidence as Ext.A4 without any objection being raised against by the respondents. In Ext.A4, the Surgeon who conducted the postmortem examination of the body of the deceased reported his age as 62 years and this Court ``` MACA NO.1483/2016 & CO NO.151/2016 ``` is inclined to base that and to adopt 7 as the multiplier applicable for calculation of compensation. 14. Petitioners failed to adduce any evidence to establish the occupation and the monthly income of the deceased. `5,000/- was fixed by the Tribunal as the monthly income of the deceased on a notional basis. The motor accident was occurred in the year 2012 and `5,000/- fixed having no nexus to the cost of living and the price index prevailing then, this Court finds it reasonable to re-fix the monthly income as `8,500/-. It is settled law that loss of future prospects is not required to be considered in a case where the deceased was aged above 60 years. The deceased was survived by four members and therefore, ¼[th] needs to be deducted towards his personal expenditure. Petitioners being the wife and three children of the deceased, each of them is entitled to get `40,000/- as compensation towards loss of consortium. Thus `1,60,000/- (`40,000/- x 4) is awarded in total as compensation under that head. Petitioners are also awarded ``` MACA NO.1483/2016 & CO NO.151/2016 ``` ``` 10 ``` `15,000/- each as compensation towards loss of estate and funeral expenses, in accordance with their entitlement. 15. Compensation for loss of dependency when calculated afresh with the modified factors as above, `5,35,500/(`8,500/- x 12 x 7 x ¾) is arrived at and that is awarded. 16. The victim of the motor accident died while undergoing treatment. Therefore, petitioners must have incurred expenses for transportation, clothing and bystander. This Court awards `4,000/- each towards transportation and bystander expenses and `1,000/- towards damages to clothing. 17. Thus the petitioners are entitled to get `7,34,500/(`1,60,000/- + `15,000/- + `15,000/- + `5,35,500/- + `4,000/- + `4,000/- + `1,000/-) (Rupees Seven lakh thirty four thousand five hundred only) as the total compensation. Interest is also ordered to be paid for the sum at the rate of 7.5% per annum from the date on which the Original Petition was filed till the date on which the compensation awarded is paid. Liability was not under challenge. The Tribunal has fastened liability on the 3[rd] respondent to indemnify the insured of the ``` MACA NO.1483/2016 & CO NO.151/2016 ``` offending vehicle for the compensation arrived at in the re-calculation. Therefore, the 3[rd] respondent shall deposit the compensation in favour of the petitioners within two months from the date on which a certified copy of this judgment is received. 3[rd] respondent shall issue a separate cheque for the court fee payable for the compensation now awarded. While disbursing the compensation, the Tribunal shall abide by the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. MACA and Cross Objection are allowed in part accordingly. ``` Sd/- ``` **MARY JOSEPH** **JUDGE** JJ