Raziya and others v. Mohammed Basheer and The National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 MACA NO. 233 OF 2015** **AGAINST THE AWARD DATED 07.08.2008 IN OPMV 1550/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** 1 RAZIYA AGED 38 YEARS W/O. LATE MUHAMMED BASHEER, RESIDING AT ZUHARA NIVAS, T.S.ROAD, P.O.CHALIYAM, KOZHIKODE. 2 RENNA AGED 18 YEARS D/O. LATE MUHAMMED BASHEER, RESIDING AT ZUHARA NIVAS, T.S.ROAD, P.O.,CHALIYAM, KOZHIKODE. 3 MUHAMMED NAFIHI MINOR AGED 14 YEARS S/O.LATE MUHAMMED BASHEER, RESIDING AT ZUHARA NIVAS, T.S.ROAD, P.O.,CHALIYAM, KOZHIKODE. 4 MUHAMMED ALI AGED 71 YEARS S/O.LATE N.V.K.KUTTY, ZUHARA NIVAS, T.S.ROAD, P.O.,CHALIYAM, KOZHIKODE. 5 KHADEEJAKUTTY AGED 63 YEARS W/O. LATE MUHAMMED ALI, RESIDING AT ZUHARA NIVAS, T.S.ROAD, P.O.CHALIYAM, KOZHIKODE. BY ADV SMT.K.V.RESHMI ## **RESPONDENTS/RESPONDENTS:** 1 MUHAMMED BASHEER S/O. ALIKOYA, ANCHAUDIKKAL HOUSE, KADALUNDI POST, KOZHIKODE - 673 004. 2 M.A.C.A No. 233 of 2015 2 THE NATIONAL INSURANCE CO. LTD DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE - 673 021. BY ADVS. SRI.E.C.AHAMED FAZIL SRI.K.M.FIROZ SRI.S.KANNAN SRI.K.B.RAMANAND SMT.M.SHAJNA SMT.UMMUL FIDA ## **OTHER PRESENT:** ADV DHANYA M B-R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 M.A.C.A No. 233 of 2015 ## **JUDGMENT** The appellants are the petitioners in O.P(M.V) No.1550/2004 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode. The said claim petition was submitted by them seeking compensation for the death of one 'Muhammed Basheer' due to the injuries sustained in a motor accident that occurred on 10.02.2004. The deceased was the husband of the 1st appellant, the father of the appellants 2 and 3, and the son of the 4th and 5th appellants. 2. The accident occurred when he was pillion riding on a motorcycle, the said motorcycle hit on a parked autorickshaw due to the rash and negligent riding of the 1st respondent. The motorcycle was owned by the 1st respondent himself and was insured with the 2nd respondent. The deceased was working as a Supervisor in an Engineering company with a monthly income of Rs.6,350/- and he was 33 years old at the time of the accident. The compensation was claimed in such circumstances. 3. The 2nd respondent resisted the claim by filing a written statement. Even though they admitted the existence of an 4 M.A.C.A No. 233 of 2015 insurance policy for the motorcycle, they raised a contention that the policy does not cover the risk of a pillion rider as the insured had not paid any additional premium for the same. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of Exts.A1 to A3 from the side of the appellants and the copy of the policy was marked as Ext.B1. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 1st respondent. However, it was found that the insured had not paid any additional premium to cover the risk of the pillion rider, and therefore, the insurance company was exonerated from liability. The quantum of compensation was fixed at Rs.2,30,000/-, and the same was to be recovered from the 1st respondent with interest at the rate of 7% per annum from the date of petition till realisation. This appeal is submitted by the appellants in such circumstances challenging the exoneration of the 2nd respondentinsurance company and seeking enhancement of compensation. 5. Heard, Smt. K.V Rashmi, the learned counsel appearing for the appellants and Smt. Dhanya Babu M.B, the learned counsel appearing for the 2nd respondent, insurance company. 5 M.A.C.A No. 233 of 2015 6. The first question to be considered is whether the exoneration of the insurance company was proper or not. The specific contention put forward by the learned counsel for the appellants in this regard is that the policy issued was a package policy and, therefore, the same would take in the coverage of the risk of the pillion rider as well. The said contention has to be accepted, as from the Ext. B1 policy, it is discernible that it was a package policy. As per various circulars and directions issued by the IRDAI, when the insurer issues a package policy, the same will cover the risk of the pillion rider carried in the said vehicle as well and therefore, the insurance company cannot take a contention that in the absence of any additional premium, no coverage could be extended to the pillion rider. In such circumstances, I find that, as the policy issued in this case was a package policy, it provides the coverage of the risk of the pillion rider, and the exoneration of the 2nd respondent/insurance company, from the liability by the Tribunal was not proper. Accordingly, the said finding is set aside by holding that the 2nd respondent, being the insurer of the vehicle, is liable to pay the compensation. 6 M.A.C.A No. 233 of 2015 7. The next issue to be considered relates to the enhancement of compensation. The learned counsel for the appellants points out that for assessing the compensation for disability, a meagre annual income of Rs.18,000/- was adopted. On perusal of the records, I find force in the said contention. Of course, it is true that, even though the deceased claimed to have been working as a supervisor in a company, no proper evidence was adduced to substantiate the same. However, considering the fact that the accident occurred in the year 2004, the annual income of Rs.18,000/- appears to be very meagre and requires reconsideration. It is to be noted in this regard that in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** the Honourable Supreme Court was pleased to take the monthly income as Rs.4,500/- for an ordinary worker even without any evidence. Therefore, in the absence of any other evidence, I deem it appropriate to fix the monthly income in this case as Rs.4,500/-. Since the deceased was aged 33 years at the time of the accident, an addition of 40% needs to be made towards future prospects, and the multiplier applicable is '16'. As the deceased left behind 7 M.A.C.A No. 233 of 2015 five persons, the deduction towards personal expenses should be ¼. Thus, while reassessing the compensation with the above criteria, the compensation for loss of dependency would come to Rs.9,07,200/- [(4,500 + 40%) x 12 x 16 x ¾]. The amount already awarded by the Tribunal is Rs.2,04,000/- and thus, the additional compensation would come to Rs.7,03,200/-. 8. Another head which requires consideration is the loss of consortium. All the appellants being the wife, children and parents are entitled to compensation for loss of consortium at the rate of Rs.40,000/- each in the light of the observations made by the Honourable Supreme Court in **Magma General Insurance Co.Ltd. v. Nanu Ram & Others [2018 (3) KLT Online 3095 (SC)] and United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780].** However, it was pointed out by the learned counsel for the insurer that the Tribunal has already awarded an amount of Rs.10,000/- under the said head. Therefore, the additional compensation under this head would come to Rs.1,90,000/-. 9. The Tribunal awarded an amount of Rs.2,500/- towards funeral expenses, whereas the proper amount should have been 8 M.A.C.A No. 233 of 2015 Rs.15,000/- in the light of **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)].** Therefore, a further sum of Rs.12,500/- is awarded. No amount is seen awarded towards loss of estate and in the light of **Pranay Sethi (supra)** an amount of Rs.15,000/- is awarded under the said head. Thus, the total additional compensation is determined as Rs.9,20,700/(7,03,200+ 1,90,000 + 12,500 + 15,000) and this would result in the reassessment of the total compensation as Rs. 11,50,700/(9,20,700 + 2,30,000). In the result this appeal is allowed. The award dated 07.08.2008 passed by the Principal Motor Accidents Claims Tribunal, Kozhikode in O.P.(M.V) No. 1550/2004, to the extent it exonerated the 2[nd] respondent from the liability is set aside and it is held that the 2[nd] respondent is liable to indemnify the 1[st] respondent. The quantum of compensation is reassessed as Rs.11,50,700/- and said amount shall be deposited by the 2[nd] respondent, with interest at the rate as ordered by the Tribunal and proportionate cost within a period of three months from the date of receipt of a copy of this judgment. It is further clarified that, as there was delay of 2246 days in filing the appeal, the 2[nd] 9 M.A.C.A No. 233 of 2015 respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further ordered that, the claimants shall furnish the details of PAN card Aadhar Card and Bank details to enable the insurance company to make the deposit as ordered above within a period of two months from the date of receipt of a copy of this judgment. In case, they failed to furnish the said details it shall be open for the respective insurance company to deposit the said amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A JUDGE** rpk