Ramaswami & Tamilarasi v. Subeesh & Future General India Insurance Company Ltd.

M.A.C.A.No.1743/2012 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945_ ## _MACA NO. 1743 OF 2012_ _AGAINST THE ORDER/JUDGMENT OPMV 1313/2009 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL ,KOZHIKODE_ ## _APPELLANT/PETITIONERS:_ _1 RAMASWAMI, AGED 55 YEARS, S/O.MUTHUSWAMI, 9/38, L.KANAVAYAPATTI P.O., POYER STREET, LUTHUVADI, NAMAKKAL DITSTRICT, TAMIL NADU._ _2 TAMILARASI, AGED 25 YEARS, W/O.SELLAMUTHU, L.KANAVAYAPATTI P.O., KARADICHITHUR, KACHADA PALAYAM VIA, KALLAKURISHI TALUK, VILLIPPURAM DISTRICT, TAMIL NADU-606 207. BY ADV.SRI.K.MUHAMMED SALAHUDHEEN_ ## _RESPONDENTS/RESPONDENTS:_ - _1 SUBEESH, S/O.CHANDRADAS, 4/1015, PALKUZHI HOUSE, NENMENI, AMBUKUTHI, AMBALAVAYAL POST, WAYANAD._ - _2 FUTURE GENERAL INDIA INSURANCE COMPANY LTD., CORPORTE OFFICE, 001, TRADE PLAZA, 414, VEER SEVARKAR MARG, PRABHADEVU, MUMBAI-400 025._ _BY ADV.LIMMY K.J_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ 2 ## **J U D G M E N T** The appellants are the petitioners in O.P.(M.V).No.1313 of 2009 on the files of the Principal Motor Accidents Claims Tribunal, Kozhilode. The said claim petition was submitted by them seeking compensation for the death of one Pommai @ Ankammal due to the injuries sustained in a motor accident that occurred on 18.02.2009. According to the claimants, the accident occurred when the deceased was walking through the road, she was hit by a car bearing registration No.KL 05/U 8008. The said vehicle was owned and driven by the 1 st respondent, and it was insured by the 2nd respondent. 2. According to the appellants, the deceased was aged 44 years at the time of the accident and she was a cable digging worker with a monthly income of Rs.4,500/-. The claim petition was submitted in such circumstances. 3. The respondents filed a written statement, disputing the negligence on the part of the 1st respondent. The 2nd respondent admitted the insurance converge. However, they disputed the quantum of compensation claimed. 4. The evidence in this case consists of Ext. A1 to A5 from the side of the appellants, and no evidence was adduced by the respondents. After the trial, the Tribunal came to the 3 conclusion that the accident occurred due to negligence on the part of the driver of the car, and being the insurer, the 2nd respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,69,000/- and the said amount was permitted to be recovered from the 2nd respondent with interest at the rate of 7% per annum from the date of petition till realization and with a a cost of Rs.1,000/-. This appeal is submitted by the appellants seeking enhancement of compensation in such circumstances. 5. Heard Sri.Muhammed Salahudheen, learned counsel for the appellants and Sri.Limmy K.J, learned counsel for the 2[nd] respondent. 6. The only contest in this case relates to the quantum of compensation. There is serious dispute as to the age of the deceased. Even though the appellants contended that she was aged 44 years as of the date of the accident, in the Ext.A1 police records, i.e., FIR and FIS, and Ext.A3 postmortem certificate, her age was shown as 60 years. Ext.A5 is the final report prepared by the Police. No other documents were produced by the appellants to show the age of the deceased, and thereafter, acting upon said documents, the Tribunal fixed the age of the deceased as 60. The learned counsel disputes the same. The 4 learned counsel is placing reliance upon the election identity card of the deceased, which is produced along with I.A.No.1 of 2024, wherein the age of the deceased was shown as 45 years, as of 01.01.2006. If that is taken, as on the date of the accident, the deceased was aged 49 years. 7. I have gone through the said identity card which is produced as Annexure 1 and it is already accepted into the file and marked Exhibit A6. It is the original of the election identity card. Considering the fact that it is a document, i.e., an original identity card issued by a competent authority, namely the Election Commission of India, the same can be acted upon, and therefore, the age mentioned therein can be accepted. This would mean that the age of the deceased as on the date of the accident was 49 years. 8. The next aspect relates to the monthly income. According to the appellants, she was a cable digging worker with a daily income of 150/- per day. However, the learned counsel for the appellant would point out that when the monthly income is calculated on the basis of principles laid down 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)** 5 **SCC 735]** amount would come to Rs.7,000/-. It is also contended that solely because of the fact that the lesser income was mentioned in the claim petition, the just compensation cannot be denied, as the facts and circumstances of the case would justify taking a higher monthly income. Even though the learned counsel for the 2[nd] respondent stoutly opposed the said contention, I am inclined to accept the contention put forward by the learned counsel for the appellant in this regard. It is to be noted that in **Minu Rout v. Satya Pradumna Mohapatra [2013(3) KLT Online 1128 (SC)],** the Honourable Supreme Court was pleased to take monthly income at a higher rate than claimed in the claim petition. Moreover, as rightly pointed out by the learned counsel for the appellant, in **Ramachandrappa (supra)** the Honourable Supreme Court was pleased to take the monthly income of an ordinary employee even without any evidence as Rs.4,500/- in the year 2004. Similarly, in **Syed Sadiq (supra)** the monthly income of a vegetable vendor is fixed as Rs.6,500/- in respect of an accident in the year 2007. Therefore, I am of the view that the monthly income can reasonably be taken as Rs.7,000/- and merely because a lesser income was claimed, the same would not preclude the court from taking a higher income so as to ensure a just income. 6 9. As the deceased was aged 49 years, towards future prospects, and addition of 25% of the monthly income is to be made. Thus, while calculating the compensation with the above revised criteria, the amount would come to Rs.9,10,000/[(7,000+25%) x 12 x 13 x 2/3]. The amount already awarded by the Tribunal is Rs.1,44,000/-. Thus, the additional compensation would come to Rs.7,66,000/-. The amount awarded by the Tribunal towards funeral expenses was Rs.3,000/- only, whereas in the light of **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)]** the proper amount is Rs.15,000/-. Therefore, a further sum of Rs.12,000/- is awarded. Similarly, the Tribunal awarded only Rs.2,500/- towards loss of estate. In the light of **National Insurance Co. Ltd v. Pranay Sethi [2017** **(4) KLT 662 (SC)]** the same is not adequate and a further sum of Rs.12,500/- is awarded. Another head which requires consideration is loss of consortium. No amount was seen awarded by the Tribunal under the said head, but instead Rs.5,000/- was granted towards loss of love and affection. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram & Others 2018 (3) KLT Online 3095 (SC)** the first appellant being the husband, is entitled to Rs.40,000/- under the said head. It is also stated in **United India Insurance Co. Ltd. v.** 7 **Satinder Kaur [2020 (3) KHC 760],** when compensation is awarded for loss of consortium no separate amount needs to be granted for loss of love and affection. Therefore, Rs.5,000/awarded by the Tribunal towards loss of love and affection can be adjusted against the amount determined by this Court towards loss of consortium. Thus, the additional amount would come to Rs.35,000/-. Accordingly, the total additional compensation is determined as Rs.8,25,500/[766000+12500+12000+35,000]. 10. The learned counsel for the appellant points out that, even though this court ordered notice on the delay petition submitted along with this appeal on 06.09.2012, no steps were taken, and ultimately, the appeal was dismissed for nonprosecution on 29.09.2021 for that reason. Later, an application was submitted to restore the appeal, with a petition to condone the delay of 304 days. It was further pointed out that the 2[nd] respondent was given notice in that petition only in the year 2021. Therefore, it was contended by the 2[nd] respondent that, they should not be held liable to pay the interest for the said period. Of course, it is true that there were some lapses on the part of the appellant in serving the notice to the 2[nd] respondent; the main contestant in the appeal and records would show that it 8 was served in 2021 only. However, exonerating the 2[nd] respondent from the liability to pay the interest for the entire period may not be justifiable. However, some solace is to be granted to the 2[nd] respondent as there was no lapse on their part. Taking note of the huge delay in taking steps to serve notice on the 2[nd] respondent, I am of the view that pertaining to the said period, the lesser interest of 5% alone can be granted. It is also to be noted that the application for restoration of appeal was filed with a delay of 304 days, and the appeal itself was filed with a petition to condone the delay of 618 days. The delay of 618 days in filing the appeal was condoned by this Court subject to the condition that the appellant shall not be entitled to interest for the said period. In such circumstances, I am of the view that the 2[nd] respondent can be exonerated from the liability to pay the interest for a total period of 922 days, which includes 618 days in filing the appeal and 304 days in filing the restoration application. 9. In the result, this appeal is allowed. Award dated 06.03.2010 in O.P.(MV).No.1313 of 2009 passed by the Principal Motor Accidents Claims Tribunal, Kozhikode is hereby modified by granting an additional compensation of Rs.8,25,500/- (Rupees eight lakhs twenty five thousand five hundred only) and the same 9 shall be recoverable from the 2[nd] respondent with interest at the rate of 7% per annum from the date of petition till realization subject to the application of different rate of interest and exclusion of the period for computing the interest as referred to above. It is further ordered that such a deposit shall be made by the 2[nd] respondent before the Tribunal within three months from the date of receipt of a copy of this judgment and the appellant shall furnish the details of bank account PAN Card etc before the Tribunal within one month. In case of failure in submitting the said details within a period of one month from the date of receipt of a copy of this judgment, the 2[nd] respondent shall be entitled to deposit the amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A. (JUDGE)** DG/23.1.24 10 _APPENDIX OF MACA 1743/2012_ _PETITIONER ANNEXURES_ _Annexure 1 ORIGINAL ELECTION ID CARD OF THE DECEASED_