REHIYANATHU BEEVI and others v. Divisional Manager, United India Insurance Co. Ltd., Kollam and Sudhakar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 28TH DAY OF JANUARY 2016/8TH MAGHA, 1937 MACA.No. 712 of 2014 (C) ------------------------ AGAINST THE AWARD IN OPMV 1495/2005 of M.A.C.T.,KOLLAM DATED 29-01-2013 ## APPELLANTS/PETITIONERS: ----------------------- ## 1. REHIYANATHU BEEVI, AGED 34 YEARS, D/O. SAUDA BEEVI, PANAVILA VEEDU, THAZHAM, MEENADU. 2. SHEREEFA BEEVI, AGED 70 YEARS, M/O. LATE NAZARUDEEN, PANAVILA VEEDU, THAZHAM, MEENADU. 3. NIJIYA, AGED 8 YEARS, D/O. LATE NAZARUDEEN, PANAVILA VEEDU, THAZHAM, MEENADU (MINOR REPRESENTED BY HER MOTHER, 1ST APPELLANT). BY ADV. SRI.PRATHEESH.P ## RESPONDENT/3RD RESPONDENT: ----------------------------- DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., KOLLAM-691001. ## Addl.2. SUDHAKARAN, - 16/25 SHORNUR ROAD, PALAKKAD - 679 121. ADDL.R2 IS IMPLEADED AS PER ORDER DATED 27.03.2015 IN IA 1203/15. R1 BY ADV. SMT.P.K.SANTHAMMA BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -----------------------------------------------------------------M.A.C.A.No.712 of 2014 -----------------------------------------------------------------Dated this the 28[th] day of January, 2016** ## **JUDGMENT** ## Anil K.Narendran, J. The appellants are the claimants in O.P.(MV)No.1495 of 2005 on the file of the Motor Accidents Claims Tribunal, Kollam, an application filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of Nazarudeen (husband of the 1[st] appellant, son of the 2[nd] appellant and father of the 3[rd] appellant) who died in a motor accident occurred on 7.2.2005. On the date of the accident the deceased was driving a lorry bearing No.KL-01/E1672. When the lorry reached the place of accident, another lorry bearing No.KEE.7187 owned, driven and insured by the respondents 1 to 3 before the Tribunal came in a rash and negligent manner and hit the lorry driven by the deceased. The deceased sustained fatal injuries and he succumbed to injuries. Claiming a total compensation of ₹5,00,000/- the appellants filed claim petition before the Tribunal. M.A.C.A.No.712 of 2014 2 2. Before the Tribunal Exts.A1 to A9 were marked on the side of the appellants. The respondents have not chosen to adduce any oral or documentary evidence. 3. After considering the pleadings and materials on record the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of lorry bearing No.KEE.7187 by its driver and that at the time of the accident he was not holding a valid driving licence. As such the insurer was exonerated from the liability to indemnify the owner. Therefore the insurer shall pay the amount of compensation and get it recovered from the owner of the lorry. Under different heads the Tribunal awarded a total compensation of ₹2,50,000/- and directed the insurer to deposit the said amount before the Tribunal. 4. Inadequacy of the compensation awarded by the Tribunal under different heads is the subject matter of this appeal. 5. Originally, this appeal was filed without impleading the owner of the offending lorry. By order dated 27.3.2015 in M.A.C.A.No.712 of 2014 3 I.A.No.1203 of 2015 he was impleaded as additional 2[nd] respondent. As per order dated 1.9.2015 in I.A.No.1770 of 2015 notice was ordered to the additional 2[nd] respondent through paper publication in the C.M.Application for condonation of delay. Since service of notice has been effected by paper publication, we find it unnecessary to issue fresh notice in the appeal to the additional 2[nd] respondent. 6. The sole issue that arises for consideration in this appeal is as to whether the compensation awarded by the Tribunal under different heads represents just and reasonable compensation. 7. At the time of accident the deceased, who was aged 33 years, was driving a lorry bearing registration No.KL-01/E1672. The appellants claimed that the deceased was having a monthly income of ₹3,500/-. However no documents were produced in order to substantiate the said claim. In such circumstances, the Tribunal fixed the monthly income notionally at ₹3,000/-. The accident occurred in the year 2005 and at the time of accident the deceased was aged 33 years. M.A.C.A.No.712 of 2014 4 The fact that at the time of accident the deceased was holding valid driving licence and authorisation to drive heavy goods vehicle is not in dispute. In that view of the matter, we find that, the monthly income of the deceased can be fixed notionally as ₹4,000/- for calculating dependency compensation. 8. At the time of accident the deceased was having widow and two children. For the purpose of calculating dependency 1/3[rd] of income has to be deducted towards personal expenses and 2/3[rd] has to be reckoned for calculating dependency compensation. In such circumstances, the dependency compensation payable to the claimants will have to be re-fixed as 4₹ ,000x12x16x2/3=₹5,12,000/-. The Tribunal awarded a sum of ₹3,84,000/- towards loss of dependency. In the result, the appellants will be entitled for an additional compensation of **₹1,28,000/-** under this head. 9. From the pleadings and materials on record it is seen that at the time of accident the deceased was aged 35 years. His wife, the first appellant was aged 25 years. The 2[nd] 5 M.A.C.A.No.712 of 2014 appellant, his mother was aged 61 years. The 3[rd] appellant, his daughter was aged 7 years. In **Rajesh v. Rajbir Singh (2013 (3) KLT 89),** the Apex Court held that, in appropriate cases, a maximum of ₹1,00,000/- has to be awarded under the head loss of consortium. In that case the deceased was aged 33 years and his wife was still young. In the aforesaid judgment, the Apex Court awarded a further sum of ₹1,00,000/- towards loss of love and affection. A Division Bench of this Court after referring to the decision of the Apex Court in Rajesh's case (supra) has held in **Valsamma and another v. Binu Jose and others (2014 (1) KLT 10)** that, the age of the deceased, the age of the wife, the period for which consortium is lost, period of marital life, etc. are relevant factors to be considered while fixing compensation payable under the head loss of consortium. The above reasoning of the Division Bench is equally applicable while awarding compensation towards loss of love and affection. Therefore, the age of the deceased and that of the dependents is a relevant factor to be considered, while awarding compensation for love and affection. Considering the M.A.C.A.No.712 of 2014 6 fact that the accident in the present case occurred in the year 2005, we deem it appropriate to re-fix the compensation for loss of consortium payable to the 1[st] appellant and that for loss of love and affection payable to the 2[nd] and 3[rd] appellants as ₹75,000/- each. In the result, the appellants will be entitled for an additional compensation of **₹65,000/- each** under these heads. 10. Towards funeral expenses, the Tribunal awarded a sum of ₹10,000/-. In **Rajesh's** case (supra), the Apex Court held that in the absence of evidence to the contrary for higher expenses, the courts have to award at least an amount of ₹25,000/- towards funeral expenses. In view of the law laid down by the Apex Court in the said judgment, we deem it appropriate to re-fix the compensation payable under the head funeral expenses as ₹25,000/-. In the result, the appellants will be entitled for an additional compensation of **₹15,000/-** under this head. 11. The amounts awarded by the Tribunal under other heads represent just and reasonable compensation which M.A.C.A.No.712 of 2014 7 require no enhancement in this appeal. 12. In the result, the appellants will be entitled for an additional sum of **₹2,73,000/-** in this appeal. In the award dated 29.1.2013 the Tribunal held that the appellants are not entitled to get interest for the amount of compensation for the period from 10.6.2010 to 24.5.2011. The delay of 220 days in filing this appeal was condoned as per order in C.M.Appln.No.835 of 2014 dated 29.10.2015 subject to the condition that, if at all any enhancement is ordered, the appellants would not be entitled to get interest for the period of delay. Therefore, the 1[st] respondent insurer shall deposit the additional compensation awarded in this appeal together with interest @9% per annum from 31.12.2015 till the date of deposit, except for the aforesaid period from 10.6.2010 to 24.5.2011 and also the period of delay of 220 days in filing this appeal, within one month from the date of receipt of a certified copy of this judgment. 13. It is made clear that the 1[st] respondent insurer will have the right to recover the aforesaid amount from the M.A.C.A.No.712 of 2014 8 additional 2[nd] respondent, the owner of the lorry bearing registration No.KEE-7187. 14. The appellants shall be entitled for the additional compensation awarded in this appeal in the ratio fixed by the Tribunal in Para.22 of the award. The share of the 3[rd] appellant shall be deposited in her name in a nationalised Bank in fixed deposit till she attains majority. The share of the 1[st] and 2[nd] appellants shall be disbursed to them fully. The appeal stands disposed of accordingly. Sd/- **P.R.RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge