Noushad and others v. Jayakumar and others

MACA.No.768/2016 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 1[ST] DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945_ ## _MACA NO. 768 OF 2016_ _AGAINST THE ORDER/JUDGMENT OPMV 361/2004 OF ADDITIONAL_ _DISTRICT COURT & SESSIONS COURT - III/ ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL-II, MAVELIKKARA_ ## _APPELLANTS/PETITIONERS 2 TO 6:_ - _1 NOUSHAD, MULAMOOTTIL VEEDU, PARAYANTAYYATHU, PUTHUPPALLY THEKKUM MURI, PUTHUPPALLY, KAYAMKULAM P.O._ - _2 NISSAR, MULAMOOTTIL VEEDU, PARAYANTAYYATHU, PUTHUPPALLY THEKKUM MURI, PUTHUPPALLY, KAYAMKULAM P.O._ _3 REMLATHU, MULAMOOTTIL VEEDU, PARAYANTAYYATHU, PUTHUPPALLY THEKKUM MURI, PUTHUPPALLY, KAYAMKULAM P.O._ - _4 SHINU, MULAMOOTTIL VEEDU, PARAYANTAYYATHU, PUTHUPPALLY THEKKUM MURI, PUTHUPPALLY, KAYAMKULAM P.O._ - _5 SHEEJA, MULAMOOTTIL VEEDU, PARAYANTAYYATHU, PUTHUPPALLY THEKKUM MURI, PUTHUPPALLY, KAYAMKULAM P.O._ _BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) A.R.DILEEP P.J.JOE PAUL MANU SEBASTIAN_ MACA.No.768/2016 2 ## _RESPONDENT/S:_ - _1 JAYAKUMAR, 55 ARUNACHALAM STREET, THENKASI, TAMIL NADU - 627 811._ - _2 THE DIRECTOR, A-ONE MILK PRODUCTS PVT. LTD. EDAVICHIRA WEST, PATHARAM P.O, SOORANADU._ - _3 THE ORIENTAL INSURANCE CO LTD., REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, KAYAMKULAM - 690502_ _BY ADVS. BINU GEORGE HEMALATHA VPK.PANICKER_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.768/2016 3 ## **JUDGMENT** The appellants are the petitioners 2 to 6 in O.P(MV).No.361 of 2004 on the file of the Motor Accidents Claims Tribunal, Mavelikkara. The said claim petition was submitted by them seeking compensation for the death of one Jalaludeen in a motor accident that occurred on 01.01.2004. The said claim petition was submitted by them along with the 1[st] claimant. The 1[st] petitioner in the claim petition was the wife of the deceased and the other petitioners were the children of the deceased. The deceased was aged 56 years and was conducting a business of selling utensils with a monthly income of Rs.7,000/-. 2. The accident occurred when the bicycle ridden by him was hit by a jeep bearing registration No.KL-02/L 9334 driven by the 1[st] respondent. The 2[nd] respondent was the owner of the said vehicle which was insured with the 3[rd] respondent. The claim petition was submitted in such circumstances. The 3[rd] respondent filed a written statement admitting the coverage of policy in respect of the jeep. However, they disputed the dependency of respondents 2 to 6 on the deceased, and according to them, they were earning members. MACA.No.768/2016 4 3. The evidence in this case consists of oral testimonies of PW1 and PW2, and Exts.A1 to A8 from the side of the appellants. From the side of the respondents DW1 was examined. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 1[st] respondent, the driver of the jeep ,and being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.3,31,700/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of petition till realization. This appeal is submitted in such circumstances seeking enhancement of compensation. 4. Heard Sri.P.J.Joe Paul, learned counsel for the appellants and Sri.V.P.K Panicker, learned counsel for the 3[rd] respondent Insurance Company. 5. The main contest in this case is in respect of the quantum of compensation. The learned counsel for the appellant would point out that the Tribunal took the monthly income as Rs.3,000/-, which is on the lower side. Moreover, no addition towards future prospects was also made. After considering the materials placed on record, I find some force in the said contention. Even though the monthly income was claimed as MACA.No.768/2016 5 Rs.7,000/-, the Tribunal accepted only Rs.3,000/-. Of course, it is true that there is absolutely no evidence indicating the nature of employment of the deceased and income which he used to earn from the avocation. It is to be noted that in **Ramachandrappa v.** **Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236],** Honourable Supreme Court was pleased to fix the monthly income of an ordinary worker as Rs.4,500/- in respect of an accident in the year 2004. Therefore, I am of the view that the said monthly income can be fixed in this case as well. Similarly, as the deceased was aged 56 years, an addition of 10% on the monthly income has to be made. 6. At this juncture, the learned counsel for the Insurance Company would point out that the appellants were not actually depending upon the deceased and therefore, the deduction of 1/5 made by the Tribunal was not proper. According to the learned counsel for the Insurance Company, the proper deduction should have been 1/3. Of course, it is true that the Insurance Company has raised specific contention in this regard. However, it is discernible from the records that, there was no evidence adduced by either side with respect to the question of dependency of the persons concerned. Therefore, the Tribunal proceeded with the assessment of compensation by treating all the persons as MACA.No.768/2016 6 dependents. However, since there are no materials before this Court also to take a different view, I do not intend to interfere with the same. However, the deduction of 1/5 made by the Tribunal is not at all proper. As per **Pranay Sethi** (supra) the deduction of 1/5 is contemplated only if the number of dependents are above six. Therefore, I deem it appropriate to deduct only ¼ towards personal expenses of the deceased. While reworking the compensation with the above revised criteria, the amount of compensation towards loss of dependency would come to Rs.4,00,950/[(4500+10%)x12x9x3/4]. Amount already awarded by the Tribunal is Rs.2,59,200/- and thus the additional amount would come to Rs.1,41,750/-. 7. The Tribunal has awarded an amount of Rs.25,000/towards funeral expenses, which is excess by Rs.10,000/-. The amount awarded under the head loss of estate is only Rs.15,000/-, which is lesser by Rs.10,000/-. Therefore, further interference is not necessary in both these heads, as the amounts awarded under these heads can be adjusted against each other. The next element of compensation is the loss of consortium, under which the Tribunal awarded only Rs.20,000/-. In addition to that, Rs.20,000/was awarded towards loss of love and affection as well. As per the principles laid down in **Magma General Insurance Co.Ltd. v.** MACA.No.768/2016 7 **Nanu Ram & Others 2018 (3) KLT Online 3095 (SC)** and **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3)** **KHC 760]** , all the petitioners, being the wife and children, total six in numbers, were entitled for compensation at the rate of Rs.40,000/- each. Thus, the total amount under this head would come to Rs.2,40,000/-, out of which Rs.20,000/- is already awarded by the Tribunal. It was held in **Satinder Kaur (supra)** when compensation is awarded for loss of consortium, no further amount needs to be awarded for loss of love and affection. Therefore, Rs.20,000/- already awarded by the Tribunal for loss of love and affection can be adjusted with this. After deducting the same the additional amount under the head of loss of consortium would come to Rs.2,00,000/-. Considering the nature of injuries sustained an amount of Rs.5,000/- is awarded towards pain and sufferings. Thus, the total additional compensation would come to Rs.3,46,750 [141750+200000+5000]. 8. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 04.10.2014, passed by the Motor Accidents Claims Tribunal, Mavelikkara in O.P.(MV).No.361 of 2004 is hereby modified by awarding an additional compensation of Rs.3,46,750/- (Rupees three lakhs forty six thousand seven hundred and fifty only) and the said amount shall be deposited by MACA.No.768/2016 8 the Insurance Company along with interest at the rate as ordered by the Tribunal and with proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that as there was a delay of 292 days in filing the appeal, the appellant shall not be entitled to claim interest for the additional amount pertaining to the period of delay. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/5.12.23