RASIYA BEEVI, RASNA AND RAJINA v. HAMEED, ISMAYIL NARIKKODAN, THE MANAGER, NATIONAL INSURANCE COMPANY LTD., IBRAHIM KUTTY AND AMINA BEEVI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **FRIDAY, THE 13TH DAY OF DECEMBER 2019 / 22ND AGRAHAYANA, 1941** ## **MACA.No.1322 OF 2013 (B)** ## **AGAINST THE AWARD IN O.P.(MV) NO.359/2009 DATED 17-04-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL** ## **APPELLANTS/CLAIMANTS:** - **1 RASIYA BEEVI, W/O.LATE RAHIM, RAHMANIYA MANZIL, PARUTHIYIL, KURIYADU, KUNNAMPURAM P.O., CHADAYAMANGALAM, KOLLAM.** - **2 RASNA, D/O.LATE RAHIM, DO.....DO....DO...** - **3 RAJINA, D/O LATE RAHIM, DO....DO....DO** **BY ADV. SRI.N.K.KARNIS** ## **RESPONDENTS/RESPONDENTS:** - **1 HAMEED, M.M.HOUSE, NO.12/455, MALEKKUDY HOUSE, THANDEKKAD, PONJASSERY P.O., PERUMBAVOOR, ERNAKULAM DISTRICT-683 541.** - **2 ISMAYIL NARIKKODAN, S/O.SULAIMAN, NARIKKUDAN, MUTTIL P.O., WAYANADU-673 122.** - **3 THE MANAGER, NATIONAL INSURANCE COMPANY LTD., P.B.NO.25, 1ST FLOOR, MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, NORTH PARAVOOR, 683513.** - **4 IBRAHIM KUTTY, S/O.MUHAMMED BANEEFA, KODIYIL VEEDU, MADAN NADA, CHADAYAMANGALAM P.O., KOTTARAKKARA TALUK, (DIED, LEGAL HEIRS NEED NOT BE IMPLEADED).** - **5 AMINA BEEVI, W/O.IBRAHIM KUTTY, KODIYIL VEEDU, MADAN NADA, CHADAYAMANGALAM P.O., KOTTARAKKARA TALUK-691 534.** **BY ADVS. R1 BY ADV. SMT.MARY TRREASA** **R1 BY ADV. SRI.LAL GEORGE R1 BY ADV. SRI.MADHU B.THOPPIL R1 BY ADV. SRI.C.R.SANISH R1 BY ADV. SRI.SUNIL KUMAR KURIAKOSE R3 BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1322 OF 2013 (B) 2 ## **JUDGMENT** The appellants/claimants, who are the legal representatives of late Rahim who died in an accident occurred on 01.11.2008 at 10 a.m., on account of the rash and negligent driving of the lorry bearing registration No.KL-07/V-9360, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent, have preferred this appeal seeking enhancement of compensation of Rs.5,00,000/awarded by the Motor Accidents Claims Tribunal, Attingal, in OP(MV) No.358 of 2009, dated 17.04.2013 . It is alleged that the deceased was, at the time of the accident, earning a monthly income of Rs.8,000/- as a driver of autorickshaw and as a fish vendor. Two other claim petitions were filed for damages to the lorry and the autorickshaw. 2. The Tribunal, after noticing all the facts, taken the income of the deceased as Rs.4,000/- and since the deceased was 40 years, applied the multiplier of 14 and deduction of ¼, awarded a total compensation of Rs.8,39,500/-under various MACA.No.1322 OF 2013 (B) 3 ## heads in the following manner:- |Sl.<br>No.|Head of claim|Amount<br>Claimed|Amount<br>Awarded|Basis-vital<br>details in a nut<br>shell| |---|---|---|---|---| |1|Loss of earning|Nil|Nil|The accident<br>victim died<br>immediately| |2|Partial loss of<br>earning|Nil|Nil|The accident<br>victim died<br>immediately| |3|Transportation to<br>hospital|Rs.4,000/-|Rs.4,000/-|Amount<br>applied for<br>granted| |4|Extra nourishment|Nil|Nil|Accident<br>victim died<br>soon after the<br>accident| |**Others**||||| |5|Medicine|Rs.20,000/-|Nil|Accident<br>victim died<br>soon after the<br>accident| |6|Expenses of funeral<br>and to bring in<br>relatives to attend<br>funeral and<br>obsequies|Rs.10,000/-|Rs.8,000/-|Probable<br>amount| |7|Damages to<br>clothing and<br>personal articles|Rs.1,000/-|Rs.500/-|Probable<br>amount| |8|Expenses of<br>bystander|Rs.5,000/-|Rs.1,000/-|Probable<br>amount<br>accident victim<br>died 5 days<br>after the<br>accident| |**Part II**||||| |9|Compensation for<br>pain and sufferings|Rs.20,000/-|Nil|Accident<br>victim died<br>soon after the<br>accident| MACA.No.1322 OF 2013 (B) 4 |10|Compensation for<br>loss of love,<br>affection and<br>guidance|Rs.4,00,000/-<br>(under joint<br>head)|Rs.30,000/-|The deceased<br>is survived by<br>young widow,<br>2 teen aged<br>daughters and<br>aged parents| |---|---|---|---|---| |11|Compensation for<br>loss of<br>dependency,<br>future income and<br>other benefits and<br>loss of future<br>prospects|Rs.4,00,000/-<br>(under joint<br>head)|Rs.7,56,000/-|(Rs.4000x12=<br>Rs.48000-1/4<br>(12,000)=3600<br>0x14=5,04,000<br>plus<br>Rs.252000,<br>50% of<br>Rs.5,04,000/-)<br>=Rs.7,56,000/-| |12|Compensation for<br>loss of consortium|Rs.4,00,000/-|Rs.30,000/-|Probable<br>amount| |13|Compensation for<br>loss of estate|Rs.50,000/-|Rs.10,000/-|Probable<br>amount| ||Total||**Rs.8,39,500/-**|| 3. Sri.M.A. George, the learned counsel appearing on behalf of the insurance company contested the aforementioned claim petition. The stand of the insurance company was that the deceased was negligently standing on foot path behind a parked autorickshaw, bearing registration No.KL-02/W-2477, adjoining the public road at Manalayathupacha in Pazhayakunnummel village at 10 a.m. and the accident was not the result of the rash and negligent driving of the lorry driver. He attributed 25% negligence on the deceased and further submits that no enhancement of compensation of the award of MACA.No.1322 OF 2013 (B) 5 the Tribunal is required. 4. Sri.N.K. Karnis, the learned counsel appearing on behalf of the appellants/claimants contended that the compensation awarded does not commensurate with the law laid down by the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680]. It is further contended that the compensation awarded under various heads-such as funeral expenses, loss of consortium and loss of estate, etc. are much less. Treatment expenses are also not been taken care of and there is no rationality in assessing the income as Rs.4,000/-. Therefore, the award is liable to be enhanced. He further submitted that in the absence of any eye witness, the contributory negligence of the deceased to the extent of 25% could not have been taken. The negligence should have been only on the driver and owner of the offending lorry, insured with the 3[rd] respondent, who has been given a recovery right, as the driver of the lorry was not holding a valid and effective driving licence. 5. Sri.M.A. George, the learned counsel appearing on MACA.No.1322 OF 2013 (B) 6 behalf of the insurance company submits that the award of the Tribunal does not call for any interference/enhancement, as it is fair and just. He submits that in the absence of any cross appeal by the owner and driver, the recovery rights may be ordered to be maintained and he also does not dispute the amount of compensation under conventional heads as laid down in **Pranay Sethi's case (supra)** . 6. Having heard the learned counsel on both sides and appraised the paper books on record, I am of the view that this is a fit case where this Court can modify the award and accordingly, I do so. 7. The age of the deceased and his death were not in dispute. The question is that at the time of the accident, i.e., on 01.11.2008, whether the deceased would have been earning Rs.4,000/- instead of Rs.8,000/-. He was stated to be a driver as well as a fish vendor. The income, thus, in my view, had been assessed on a lower side and not commensurating with the Minimum Wages Act, as applicable to Kerala. I take the income of the deceased as Rs.7,000/- and multiplier as 15 instead of 14 MACA.No.1322 OF 2013 (B) 7 for the purpose of calculating the compensation. The claimants failed to discharge the onus to rebut the stand of the insurance company with regard to the negligence attributed against the deceased. As a matter of fact, he was found to be selling fish on the road side. The vendor is not expected to be unmindful of the risk in selling fish on the brim of road and in case he takes the risk; he has to take reasonable protection for the same and be away from the brim of road inorder to prevent such type of unfortunate mishap. In such circumstances, the finding of the Tribunal in attributing 25% negligence on the part of the deceased cannot be faulted with. 8. However, as noticed above, the compensation under various heads like funeral expenses, loss of consortium and loss of estate are on a lower side. Under the head expenses of funeral and to bring in relatives to attend funeral and obsequies, the Tribunal granted a sum of Rs.8,000/-, which is enhanced to Rs.15,000/- resulting in an additional compensation of **Rs.7,000/** -. Towards loss of consortium the Tribunal granted a sum of Rs.30,000/-, which is enhanced to MACA.No.1322 OF 2013 (B) 8 Rs.40,000/- resulting in an additional compensation of **Rs.10,000/** -. Towards loss of estate the Tribunal granted a sum of Rs.10,000/-, which is enhanced to Rs.15,000/- resulting in an additional compensation of **Rs.5,000/** -. There shall be no enhancement of compensation under the head loss of love and affection and guidance. There shall be an increase of 40% of monthly income (7,000 x 40 = 9,800) which should be added while calculating loss of future prospects. In the result, there shall be additional compensation of **Rs.4,11,600/** - (9,800 x 12 x 15 x ¼) under this head also. In the result, the claimants are entitled for an additional compensation of **Rs.4,33,600/- (7,000 + 10,000 + 5,000 + 4,11,600)** (Rupees Four lakhs thirty three thousand and six hundred only) along with 9% interest and the 3[rd] resondent insurance company is directed to deposit the same within a period of 2 months from the date of receipt of a copy of this judgment. In case of default, the rate of interest will be 12%. Insurance company is free to seek recovery of the amount from the owner and driver of the vehicle. MACA.No.1322 OF 2013 (B) 9 With these modifications and directions the appeal stands disposed of. **Sd/-** **AMIT RAWAL, JUDGE** Skk//191219