Renuka (W/o Late Sivadasan) and SISIRA (Minor, represented by Renuka) v. Abdul Latheef, Abdul Gafoor, ICICI Lombard General Insurance Company Limited

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944`** ## **`MACA NO. 1325 OF 2013`** ``` AGAINST THE AWARD DATED 20.12.2011 IN O.P(M.V) NO.479/2011 OF MOTOR ACCIDENTS ``` ## **`CLAIMS TRIBUNAL, KOZHIKODE`** ## **`APPELLANTS/PETITIONER:`** ``` 1RENUKA, W/O. LATE SIVADASAN, AGED 36 YEARS 2SISIRA (MINOR) AGED 11 YEARS, DATE OF BIRTH 10/06/1999 (MINOR REPRESENTED BY HER MOTHER AND LEGAL GUARDIAN RENUKA. BOTH ARE RESIDING AT THENICHERI MEETHAL HOUSE, P.O. KARANTHOOR, KUNNAMANGALAM, KOZHIKODE. BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1ABDUL LATHEEF S/O. KOYAMED HAJI, KUNNUMMAL HOUSE, P.O. OMSSERY, KODUVALLY, KOZHIKODE - 673 572. 2ABDUL GAFOOR. K, S/O. MUHAMMED, AGED 25 YEARS, VADAKKEKUNNATH HOUSE, P.O. PUTHOOR, KODUVALLY, KOZHIKODE - 673 572. 3THE ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED 6/255/C, 2ND FLOOR, CITY PLAZA BUILDING YMCA, CROSS ROAD, KOZHIKODE.-673 006 BY ADVS. SRI.E.NARAYANAN SRI.R.AJITH KUMAR 12884 SRI.LATHEESH SEBASTIAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1325 OF 2013 ``` ``` 2 ``` ## JUDGMENT ## Dated this the 22[nd] day of February, 2023. This appeal is directed against an award passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short, ‘the Tribunal’) on 20.12.2011 in O.P(M.V) No.479/2011. The appellants are petitioners before the Tribunal, who are legal representatives of one Mr.Sivadasan, who died following the injuries sustained in a motor accident occurred at about 11 p.m on 25.12.2009 and succumbed to those immediately. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners 1 and 2 and respondents 1 to 3 in accordance with their status in the Original Petition. 3. According to the petitioners Mr.Sivadasan was aged 37 years at the relevant time of his death, was working as a Cook in Alakapuri Hotel, Kozhikode and earning Rs.6,000/- as monthly income. According to them, the motor accident alleged was occurred due to the rash and negligent driving of the Car bearing Registration No.KL-57-4733 by its driver. He was transported to ``` MACA NO. 1325 OF 2013 ``` ``` 3 ``` Medical College Hospital, Kozhikode for treatment, but succumbed to the injuries there on the same day itself. He was the sole bread winner of his family. Therefore, claiming a sum of Rs.8,00,000/- as compensation for his death, the above Original Petition was moved before the Tribunal. The owner, the driver and the insurer of the Car bearing Registration No. KL-57-4733 were arrayed as respondents 1 to 3 in the Original Petition. 4. 1[st] and 2[nd] respondents were declared ex parte for their failure to appear before the Tribunal following service of summons on them. The 3[rd] respondent had filed written statement admitting insurance coverage for the Car as on date of accident. It was contended that the motor accident was occurred due to negligence of Mr.Sivadasan himself. It was further contended that the 2[nd] respondent was driving the Car carefully and therefore, not responsible for the accident and the claim for compensation is excessive in nature. Claims of the petitioners regarding his age, occupation and monthly income of the deceased were also disputed. 5. Exts.A1 to A5 were marked in evidence by the petitioners. Respondents did not adduce any evidence. Based on the evidence adduced as above, the Tribunal arrived at a finding on ``` MACA NO. 1325 OF 2013 ``` ``` 4 ``` negligence on the part of the driver of the Car bearing Registration No.KL-57-4733. The Tribunal fixed liability on the 3[rd] respondent and directed it to pay Rs.4,67,500/- arrived at as compensation with interest at the rate of 7% per annum from the date of filing of the Original Petition till the date of realisation alongwith Rs.2,000/- as proportionate cost. Aggrieved by the quantum stands awarded by the Tribunal, the petitioners approached this Court in the appeal on hand. 6. According to Sri.V.S Chandrasekaran, the learned counsel, as per the pleadings of the petitioners in the Original Petition, the deceased was a Cook working at Alakapuri Hotel, Kozhikode and earning Rs.6,500/- as monthly income . According to him, evidence to establish the monthly income having not been let in, the Tribunal was constrained to fix Rs.3,500/- notionally. According to him, the Tribunal is not justified in fixing Rs.3,500/as the monthly income of the deceased. 7. The attention of this Court was also drawn to National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)] where the Constitution Bench of the Apex Court has fixed Rs.16,500/- as the compensation payable under each of the heads, ``` MACA NO. 1325 OF 2013 ``` ``` 5 ``` loss of estate and funeral expenses and Rs.44,000/- as compensation payable towards loss of consortium per head. According to him, the Tribunal has awarded only Rs.10,000/-, Rs.5,000/- and Rs.10,000/- as compensation under the respective heads and therefore, interference is highly warranted to grant those in accordance with the fixation of the Apex Court in Pranay Sethi supra. 8. The learned counsel for the 3[rd] respondent contended on the contrary that petitioners are not entitled to get compensation under the head pain and suffering. According to him, the Tribunal has awarded Rs.10,000/- under that head and the same needs to be deducted from the total additional compensation if arrived at. 9. Constitution Bench has directed in Pranay Sethi supra that Rs.15,000/- is a reasonable sum to be granted as compensation towards loss of estate as well as funeral expenses and Rs.40,000/to the petitioners per head towards loss of consortium. The Apex Court has further directed that in every successive three years, there will be a hike of 10% to the sums abovementioned. In the above circumstances, the petitioners are entitled to get Rs.16,500/- each as compensation towards loss of estate and funeral expenses and ``` MACA NO. 1325 OF 2013 ``` ``` 6 ``` Rs.44,000/- per head as compensation towards loss of consortium. The Tribunal has awarded only Rs.10,000/- under the head loss of consortium, Rs.5,000/- under the head funeral expenses and Rs.10,000/- under the head loss of estate. Therefore, petitioners two in numbers are entitled to get Rs.78,000/- (Rs.88,000/- - Rs.10,000/-) as additional compensation towards loss of consortium, Rs.6,500/- (Rs.16,500/- - Rs.10,000/-) as additional compensation towards loss of estate and Rs.11,500/- (Rs.16,500/- - Rs.5,000/-) as additional compensation towards funeral expenses. When the monthly income is modified to Rs.6,500/-, there will also be variation in compensation payable towards loss of dependency. Other factors considered by the Tribunal are maintained. 10. In the re-assessment with the modified monthly income of Rs.6,500/-, Rs.7,80,000/- [Rs.6,500/- x 12 x 15 x (2/3)] is arrived at. Rs.4,20,000/- stands awarded by the Tribunal towards loss of dependency when deducted therefrom, the petitioner will get Rs.3,60,000/- as additional compensation. 11. In the Table incorporated in the impugned award, the total compensation was shown as Rs.4,67,500/- whereas, the actual ``` MACA NO. 1325 OF 2013 ``` ``` 7 ``` sum arrived at is only Rs.4,57,500/-. The errors being occurred due to oversight of the Tribunal is corrected as Rs.4,57,500/-. 12. Rs.10,000/- stands awarded by the Tribunal under the head pain and suffering is liable to be deducted from `4,56,000/-, the additional compensation now arrived at and therefore, the petitioner will get Rs.4,46,000/- (Rupees Four Lakh Forty Six Thousand) (Rs.3,60,000/- + Rs.78,000/- + Rs.11,500/- + Rs.6,500/- ) - (Rs.10,000/-) as additional compensation in total. 13. Since valid insurance coverage was there for the offending vehicle with the 3[rd] respondent, the Tribunal had fixed liability upon the latter to pay the compensation in favour of petitioners and thereby to indemnify the insured. In the absence of any challenge raised against the fixation of liability, by the 3[rd] respondent, it is maintained. The additional compensation awarded will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisaiton excluding 397 days being the period of delay occurred in filing the appeal on hand. The 3[rd] respondent shall pay Rs.4,57,500/- stands already awarded by the Tribunal as well as Rs.4,46,000/-, the compensation now arrived at as additional compensation with respective rates of ``` MACA NO. 1325 OF 2013 ``` ``` 8 ``` interest fixed, within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. **`Sd/-`** MARY JOSEPH JUDGE JJ