Sabira P. and others v. Sajith K and Niyas Babu and United India Insurance Company Limited

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 4TH DAY OF AUGUST 2017/13TH SRAVANA, 1939** ## **MACA.No. 1917 of 2014 ()** **------------------------IN OPMV 1474/2012 of M.A.C.T., KOZHIKODE DATED 21-06-2014** **-------------------------------------------------------------** ## **APPELLANT(S)/PETITIONERS :** **----------------------------------------------** ## **1. SABIRA.P, AGED 42 YEARS,** **W/O.LATE MUHAMMED M.K., MUTHASSANKANDY HOUSE, PAROPPADY, MERIKKUNNU P.O., KOZHIKODE.** **2. MIRZA SAMAH M.K., AGED 21 YEARS, S/O.LATE MUHAMMED M.K., MUTHASSANKANDY HOUSE, PAROPPADY, MERIKKUNNU P.O., KOZHIKODE.** ## **3. SIRU SAHAL M.K., AGED 19 YEARS,** **S/O.LATE MUHAMMED M.K., MUTHASSANKANDY HOUSE, PAROPPADY, MERIKKUNNU P.O., KOZHIKODE.** ## **4. BASIL SARNAN M.K., AGED 15 YEARS,** **S/O.LATE MUHAMMED M.K., MUTHASSANKANDY HOUSE, PAROPPADY, MERIKKUNNU P.O., KOZHIKODE. (PETITIONER 4 BEING MINOR REPRESENTED BY MOTHER AND LEGAL GUARDIAN 1ST PETITIONER).** ## **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENT(S)/RESPONDENTS :** **---------------------------------------------------** ## **1. SAJITH.K, AGED 32 YEARS,** **S/O.SIVADASAN K., PUTHUKUDY, KAPRATH HOUSE, VIRIPPIL ROAD, CHELAVOOR P.O., KOZHIKODE-673017. [DELETED]** *** RESPONDENT NO.1 IS DELETED FROM THE ARRAY OF PARTIES AS PER ORDER DATED 04.08.2015 IN IA NO.2409/2015 IN MACA NO.1917/2014.** ## **2. NIYAS BABU** **S/O.MUHAMMED KOYA, 18/590, THARAYANGAL, PUTHIYAPALAM, CHALAPPURAM P.O., KOZHIKODE-673002.** ## **3. UNITED INDIA INSURANCE COMPANY LIMITED** **WHITE LINES BUILDING, KALLAI ROAD, KOZHIKODE-673003.** **R2 BY ADV. SRI.R.SUDHISH R2 BY ADV. SMT.M.MANJU R3 BY ADV. SRI.MATHEWS JACOB (SR.) R3 BY ADV. SRI.P.JACOB MATHEW R BY SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VS** **MACA.No. 1917 of 2014 () -------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS :** **-----------------------------------------ANNEXURE A : THE CERTIFICATE UNDER S.203 OF THE INCOME TAX ACT, 1961 FOR TAX DEDUCTED AT THE SOURCE ON SALARY OF MUHAMMED M.K, LAST GRADE SERVANT (PEON) FOR THE ASSESSMENT YEAR 2012-13.** **RESPONDENT(S)' EXHIBITS : NIL -------------------------------------------** **/TRUE COPY/ PA TO JUDGE** **VS** ## **C.T.RAVIKUMAR & ANIL.K.NARENDRAN, JJ. ============================= M.A.C.A. No.1917 of 2014** **============================ Dated this the 4[th] day of August, 2017** ## **JUDGMENT** ## **C.T.RAVIKUMAR, J.** The petitioners who are the legal heirs of the victim of a motor vehicle accident preferred this appeal on being aggrieved by and dissatisfied with the award in O.P. (MV)No.1474/2012, passed by the Motor Accidents Claims Tribunal, Kozhikode. The said claim petition was filed under Sections 140 and 166 of the Motor Vehicles Act ('the M.V. Act' for short). The appellants are the wife and children of deceased Muhammed. On 08.03.2012 while Muhammed was riding his motor cycle, another motor cycle dashed against it and resultantly he sustained severe injuries. He was taken to the Medical College Hospital, Kozhikode and from there, he was shifted to Baby Memorial Hospital, Kozhikode. While undergoing treatment there, he succumbed to the injuries. In the _M.A.C.A. No.1917 of 2014 -2-_ claim petition it was averred that the deceased was working as a Peon in Muhammed Abdurahiman Memorial Orphanage College, Mukkam and he was then aged 48 years. As per the impugned award, the Tribunal granted an amount of Rs.9,50,500/- with interest at the rate of 8% per annum from the date of petition till realisation. The appellants seek for enhancement of the quantum of compensation. 2. We have heard the learned counsel for the appellants and also the learned Senior counsel appearing for the third respondent insurance company. 3. The main grievance of the appellants is that the Tribunal erroneously estimated the monthly income and that resulted in deprival of just compensation. It is submitted by the learned counsel that the Tribunal disregarded the averments regarding occupation and income of the deceased made in the claim petition as also the salary certificates produced in support of such contentions while fixing the monthly income notionally, _M.A.C.A. No.1917 of 2014 -3-_ that too, only as Rs.6,500/-. It is the further contention that the Tribunal granted only an amount of Rs.50,000/towards loss of consortium in derogation of the dictum laid down by the Hon'ble Apex Court in _**Rajesh v. Rajbir Singh**_ reported in 2013 (3) KLT 89. The compensation granted for loss of estate and pain and sufferings are also on the lower side, it is contended. 4. Per contra, the learned senior counsel appearing for the third respondent, the insurer contended that a bare perusal of the impugned award would reveal that the appellants were justly compensated and therefore, no appellate interference is called for. 5. We will firstly consider the question whether there is any substance in the contention of the appellants that the erroneous estimation of monthly income of the Tribunal resulted in denial of just compensation. True that the appellants averred in the claim petition that the deceased was a Peon working in Muhammed Abdurahiman Memorial Orphanage College, Mukkam and _M.A.C.A. No.1917 of 2014 -4-_ they have produced 3 certificates viz., Exts.A6 and A7 salary certificates and Ext.A8, a certificate to establish the factum of his employment in the said institute as a Peon and also the salary which was being drawn by him at the relevant point of time. At the same time, it is to be noted that none of the appellants mounted the box to give evidence in tune with their pleadings. So also, no authority competent to prove the said certificates was examined before the Tribunal. When that be the nature of the evidence available before the Tribunal, we do not find any reason to hold that the Tribunal went wrong in fixing the monthly income of the deceased notionally for calculation purpose. It is to be noted that the appellant got no case that he was working in a Government school. In the absence of any evidence establishing the occupation and income of the deceased, the only option of the Tribunal was to fix the monthly income notionally. But then, the next question is whether the fixation of the monthly income as Rs.6,500/- invites interference. Taking _M.A.C.A. No.1917 of 2014_ _-5-_ into account the year of accident i.e., on 2012, the age of the deceased at the time of accidental death and also taking note of the decision of the Apex Court in _**Ramachandrappa v. Manager Royal Sundaram Alliance Insurance Company Ltd 2011(13)SCC 236**_ , we are of the view that it is just and proper to fix the monthly income of the deceased as Rs.9,000/-. Accordingly, it is fixed. The multiplier was rightly adopted as '13' by the Tribunal with reference to the age of the deceased. So also, the Tribunal has correctly effected deduction of 1/4[th] of the income of the deceased taking into account the number of dependent family members in tune with the dictum laid down by the Apex Court in **Sarala Varma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)]. Hence a reassessment of the compensation for loss of dependency is required only by substituting the refixed monthly income. On such reassessment, the amount payable will be Rs.10,53,000/(9,000x12x13x3/4). The Tribunal has already awarded an _M.A.C.A. No.1917 of 2014_ _-6-_ amount of Rs.7,60,500/-. So after deducting the amount already awarded by the Tribunal, the appellants are entitled to an amount of **Rs.2,92,500/-** . It is awarded. 6. Towards loss of consortium, the Tribunal granted an amount of Rs.50,000/-. In paragraph 13 itself it is stated that the deceased was aged 48 years at the time of accident and the first appellant, who is the wife of the deceased was then aged only 40 years. The accident occurred in the year 2012 and hence, we do not find any reason at all to deny the first appellant the benefits flowing from the decision **Rajesh** 's case (supra). Going by the said decision, Rs.1,00,000/- shall be the minimum to be granted to the surviving spouse in a claim petition filed under Section 166 of the M.V. Act for the accidental death of his/her spouse. Hence, the first appellant is entitled to grant **Rs.50,000/-** more towards loss of consortium. 7. Towards pain and sufferings the Tribunal granted only an amount of Rs.5,000/-. Evidently, immediately after the accident, the deceased who _M.A.C.A. No.1917 of 2014 -7-_ sustained injuries was taken to Medical College Hospital, Kozhikode and from there he was shifted to Baby Memorial Hospital, Kozhikode. Thus it is obvious that the deceased had to endure excruciating pain at least for some hours. In the said circumstances, we are inclined to grant an amount of **Rs.5,000/-** more under that head. 8. Towards loss of estate only an amount of Rs.8,000/- was granted to the appellants. The appellants deserves to get conventional amount under that head. Therefore we are inclined to grant an amount of **Rs.2,000/-** more under the head loss of estate. The compensation assessed by the Tribunal under other heads are just and reasonable. In the result, this appeal is allowed. The appellants are entitled to an additional compensation of **Rs.3,49,500/-** (Rupees Three lakhs forty nine thousand and five hundred only). The said amount will carry interest at the rate of 8% per annum from the date of petition till realisation. In view of the absence of any _M.A.C.A. No.1917 of 2014_ _-8-_ dispute regarding the liability to indemnify the insured owner of the vehicle involved in this accident, the third respondent is directed to deposit the additional amount with interest, within a period of 2 months from the date of receipt of a copy of this judgment. All pending miscellaneous applications are dismissed. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **ANIL.K.NARENDRAN, JUDGE** VS