Rajakumari and others v Abdul Nazar and Nishad and United India Insurance Co. Ltd.

MACA.No.2031/2013 1 ## _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. 2031 OF 2013_ _AGAINST THE ORDER/JUDGMENT DATED 27.12.2012 IN OPMV NO.260 OF 2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE_ ## _APPELLANTS/PETITIONERS IN O.P.(MV):_ _1 RAJAKUMARI, AGED 50 YEARS, W/O.LATE VISWANTHAN,(WIFE OF THE DECEASED)_ _2 SELVI, W/O.SENTHIL,(D/O.LATE VISWANATHAN), AGED 29 YEARS, RESIDING AT HOUSE NO 169, ALAWAAI MARIYAMAM KOIL STREET, WARD NO 1, KEELANTHAM, P.O KEEZHANATHAM, PARAMBALUR, TAMIL NADU._ - _3 KASTOORI, AGED 20 YEARS, D/O.LATE VISWANATHAN._ _4 PRABHAKARAN, AGED 17 YEARS, S/O.LATE LATE VISWANATHAN,(DOB 7/1/1996) MINOR REP BY MOTHER RAJAKUMARI THE 1ST, 3RD AND 4TH APPELLANTS ARE RESIDING AT HOUSE NO 42-A, KEEZHANATHAM, EAST STREETM, UDAYAPALAYAM TALUK, TRICHIRAPPALLY, ARIYALUR DISTRICT, TAMILNADU._ _BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN_ ## _RESPONDENTS/RESPONDENT IN O.P (MV):_ _1 ABDUL NAZAR, S/O.HUSSAIN MUHAMMED ALI, OTTAYAMBALAM PARAMBA HOUSE, PAYYANAKKAL P.O, KALLAI, CALICUT 673 506._ MACA.No.2031/2013 2 - _2 NISHAD, S/O.MOOSA, PARUVANTHAREMMAL HOUSE, AVADUKKA P.O, CALICUT 673 528._ - _3 UNITED INDIA INSURANCE COMPANY LIMITED, WHITELINES BUILDING, KALLALI ROAD, CALICUT 673 001._ _BY ADV.P.K.ManojKumar_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.2031/2013 3 ## **JUDGMENT** The appellants were the petitioners in O.P.(MV). No.260 of 2012 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The said claim petition was submitted by them seeking compensation for the death of one Viswanathan, due to the injuries sustained to him in a motor accident that occurred on 24.06.2011. The deceased was the husband of the 1[st] appellant and father of the appellants 2 to 4. The accident occurred when the deceased was walking through the road, he was knocked down by a lorry driven by the 2[nd] respondent. The 1[st] respondent was the owner of the vehicle and it was insured with the 3[rd] respondent. The deceased was aged 58 years at the time of the accident and was working as a coolie with a monthly income of Rs.10,000/-. The claim petition was submitted in such circumstances. 2. The 2[nd] and 3[rd] respondents filed a written statement denying the negligence on the part of the 2[nd] respondent. However, the 3[rd] respondent admitted the coverage of policy for the said vehicle. The quantum of compensation was also disputed by them. MACA.No.2031/2013 4 3. Evidence in this case consists of Exts.A1 to A4 and no evidence was adduced by the respondents. The Tribunal after appreciating the materials placed on record, found that the accident occurred due to the negligence on the part of the 2[nd] respondent and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The Tribunal fixed the compensation as Rs.3,80,000/- and the said amount was directed to be deposited by the 3rd respondent with interest at the rate of 7% per annum with proportionate cost from the date of petition till realization. This appeal is submitted by the appellants being dissatisfied with the quantum of compensation. 4. Heard Sri.K.M.Jamaludheen, learned counsel for the appellants and Sri.P.K.Manoj Kumar, learned counsel for the 3[rd] respondent. 5. The only question to be determined is whether any enhancement of compensation as claimed in the appeal is to be awarded or not. On perusal of the records, I find that the amounts awarded by the Tribunal under various heads are grossly inadequate. As far as the compensation for loss of dependency is concerned, the Tribunal calculated the same by fixing the monthly income as Rs.4,500/-. Since the accident in this case occurred in the year 2011, the said amount appears to MACA.No.2031/2013 5 be on the lower side. Of course, it is true that even though a claim of Rs.10,000/- was made as the monthly income, absolutely no evidence was adduced by the appellants. However, when the method of computation of monthly income evolved from the principles laid down by the Honourable 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 Co. [2014 (2) SCC 735]** is adopted, it can be reasonably fixed as Rs.8,000/- for an accident occurred in the year 2011. Therefore, the said monthly income is accepted. As the deceased was aged 58 years, an addition of 10% is to be made towards future prospects. It is to be noted in this regard that, even though there were four claimants, who were the wife and children of the deceased, it has come out of evidence that one of the daughters was already married and was not dependent upon the deceased. Therefore, the Tribunal made a deduction of 1/3, taking note of the number of dependents as three. In the facts and circumstances of the case, I do not find any justifiable reason to interfere with the same. Thus, while reassessing the compensation with the revised criteria, the compensation for dependency would come to Rs.6,33,600/- [(8000+10%) x 12 x 9 x 2/3]. The Tribunal has MACA.No.2031/2013 6 already awarded Rs.3,24,000/- under this head. After deducting the same, the additional compensation under the head of loss of dependency would come to Rs.3,09,600/-. 6. When moving on to the other heads, it can be seen that, towards funeral expenses, the Tribunal awarded only Rs.5,000/-, whereas the actual amount in the light of **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)]** should have been Rs.15,000/-. Therefore, a further sum of Rs.10,000/- is awarded under the said head. For the same reason a further sum of Rs.5,000/- is awarded under the head of loss of estate, as the Tribunal has awarded only Rs.10,000/-. 7. The next head which requires consideration is compensation for loss of consortium. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram & Others, 2018 (3) KLT Online 3095 (SC) and United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760],** all the appellants, being the wife and children, are entitled to compensation for loss of consortium at the rate of Rs.40,000/- each, thereby making out a total compensation of Rs.1,60,000/-. The Tribunal has already awarded Rs.10,000/- towards loss of consortium and Rs.25,000/towards loss of love and affection. Since it is held in **Satinder Kaur (supra)** when compensation for loss of consortium is MACA.No.2031/2013 7 awarded, no separate compensation needs to be granted for loss of love and affection, the said amount can be adjusted against the additional compensation fixed by this Court towards the loss of consortium. Thus, the compensation under loss of consortium would come to Rs.1,25,000/-. Accordingly, the total additional compensation would come to Rs.4,49,600/[309600+10000+5000+125000]. In the result, this appeal is allowed. The award dated 27.12.2012 passed by the Principal Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV). No.260 of 2012 is hereby modified by granting an additional compensation of Rs.4,49,600/[Rupees four lakhs forty-nine thousand and six hundred only]. The said amount shall be deposited by the 3rd respondent with interest at the rate as ordered by the Tribunal, 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 the delay of 53 days in filing the appeal was condoned by this court, subject to condition that, in case of any enhancement is granted in the appeal, the appellant shall not be entitled to interest for the additional compensation, for the period of delay, the 3rd respondent shall be at liberty to exclude the said period while computing the interest on the compensation. It is further MACA.No.2031/2013 8 ordered that the claimants shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of one month 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** DG/11.3.24