Safiya v. Mohammed S/o Abdulla Haji, Abdul Gafoor S/o Usman, The Oriental Insurance Co. Ltd., Madhavi (MACA No. 1007 of 2011)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 26TH DAY OF JULY 2017 / 4TH SRAVANA, 1939** **MACA.No. 1007 of 2011** **AGAINST THE AWARD IN OPMV 1440/2010 OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 13-05-2011** **APPELLANT/PETITIONER IN THE OPMV** **SAFIYA, W/O.LATE ANIL KUMAR @ ANI, AGED 36 YEARS, KUZHIPALLI, ERANHITHARA HOUSE,, KARUVANTHIRUTHI P.O., VIA FEROKE, KOZHIKODE., (WIFE OF THE DECEASED).** **BY ADVS.SRI.K.M.JAMALUDHEEN SMT.DHANYA S.DHARAN** **SMT.LATHA PRABHAKARAN** ## **RESPONDENTS/RESPONDENTS IN OPMV:** **1. MOHAMMED, S/O.ABDULLA HAJI, AGE NOT** - **KNOWN, PANTHAPPADAN HOUSE, MANJERI,, MALAPPURAM-676121.** **2. ABDUL GAFOOR, S/O.USMAN, AGED 31 YEARS,** - **POOLANCHERI HOUSE, THRIKKALANGODE,, MALAPPURAM-676505.** **3. THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, JASEELA COMPLEX, BYE PASS JUNCTION,, NILAMBUR ROAD, MANJERI, MALAPPURAM-676121.** **4. MADHAVI, W/O.SANKARAN, AGED 70 YEARS, CHEMBRAKUZHI, P.O.VAIDYARANGADI,, KOZHIKODE-673633 (MOTHER OF THE DECEASED).** **R3 BY ADV. SRI.M.JACOB MURICKAN** **R4 BY ADV. SRI.JESWIN P.VARGHESE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AL/-** **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ. ------------------------------M.A.C.A. No.1007 of 2011** **---------------------------------------------Dated this the 26[th] day of July, 2017** ## **JUDGMENT** ## **C.T.RAVIKUMAR, J.** This appeal is directed against the award dated 13.5.2011 in O.P.(MV) No.1440/2010 passed by the Principal Motor Accidents Claims Tribunal, Kozhikode. The said claim petition was filed by the appellant herein under Section 166 of the Motor Vehicles Act seeking compensation for the death of her husband Sri. Anilkumar, in a motor vehicle accident. On 24.2.2008 while the deceased was walking alongside Kozhikode-Malappuram road at about 8.30 a.m a bus bearing registration No.KL-10W-3022, driven by the second respondent knocked him down. He sustained severe injuries and was immediately taken to Medical College Hospital, Kozhikode. He remained there as an inpatient for a total period of 128 days in three spells. Despite continuous treatment for the serious injuries sustained in the accident, he succumbed to his injuries on 13.8.2009. It is in the said circumstances, that the above M.A.C.A.No.1007/2011 2 mentioned claim petition was filed seeking a total compensation of Rs.7 lakhs. The Tribunal, as per the impugned award, had granted a total compensation of Rs.4,57,000/- with interest at the rate of 7% p.a from the date of petition till realisation. It is seeking enhancement of the quantum of compensation thus awarded, this appeal has been filed. 2. We have heard the learned counsel for the appellant, the learned counsel appearing for the third respondent as also the learned counsel appearing for the fourth respondent. 3. The main grievance of the appellant is that though the father of the deceased was not a party to the claim petition, the Tribunal had allotted a share of the compensation awarded, in his favour. Further grievance of the appellant is that she was deprived of just compensation. In other words, according to the appellant, the Tribunal had granted only inadequate compensation under different heads. The contentions of the appellant were resisted by the learned counsel appearing for the second respondent. The learned counsel submitted that a glance at the schedule of compensation would reveal that the Tribunal had granted M.A.C.A.No.1007/2011 3 adequate compensation under all heads. The learned counsel appearing for the fourth respondent submitted that the allotment of a share in the compensation awarded to the father of the deceased cannot be said to be an illegality warranting interference. It is further submitted that in view of the provisions under Section 166 of the Motor Vehicles Act, the father of the deceased ought to have been impleaded as a respondent in the claim petition. At the same time, the learned counsel for the fourth respondent had endorsed the contention of the learned counsel appearing for the appellant that the Tribunal had denied just compensation. 4. In the light of the rival contentions we will firstly consider the question whether the Tribunal had committed an error or illegality in granting a share in the compensation awarded to the father of the deceased. Evidently, the fourth respondent before the Tribunal who is the mother of the deceased was aged 70 years at the time of filing of the claim petition in the year 2010. There is no case for the appellant that the father of the deceased is younger than the fourth respondent and therefore, it can ony be taken that in the year 2010 he was also an aged man. At that age a father can certainly be treated as a dependent of his son. In such M.A.C.A.No.1007/2011 4 circumstances and in the light of the provisions under Section 166 of the Motor Vehicles Act, being a legal representative, and a surviving dependent family member, the appellant ought to have impleaded him as a respondent in the claim petition. A glance at Section 168 of the Motor Vehicles Act would reveal that after determining the amount of compensation, which appears to be just, it is incumbent on the Claims Tribunal to specify the person or persons to whom compensation shall be paid. When it came to the notice of the Tribunal that the aged father of the deceased was also surviving and then taking into account the fact that he is also one among the legal representatives and a dependent of the deceased. If a share is granted to him in the amount of compensation, we cannot find fault with the Tribunal. In fact, it is only a lawful exercise of the bounden duty under Section 168 of the Motor Vehicles Act. 5. What survives for consideration is whether the claim for enhanced compensation in this appeal is well merited? According to the appellant the Tribunal had erroneously estimated the monthly income of the deceased disregarding the averments in the claim petition as to his occupation and income. In the claim petition it was averred that the deceased M.A.C.A.No.1007/2011 5 was a tailor by profession and was earning Rs.7,000/-, per month. The learned counsel for the appellant submitted that despite a recital in Ext.A5 Inquest Report regarding the occupation of the deceased as a tailor, the Tribunal had failed to take note of the same and fixed the monthly income of the deceased for calculation purpose, notionally. The monthly income of the deceased was then fixed on the lower side as Rs.3,000/-. Even if it is taken that the occupation of the deceased was referred to in the inquest report, as tailor it could not be taken as proof of his income. In other words, before the Tribunal, no evidence was adduced by the appellant regarding the income of the deceased. When that be so, the Tribunal cannot be said to have committed an error in fixing the monthly income of the deceased notionally. However, the question is whether the fixation of monthly income as Rs.3,000/- is on the lower side and warrants interference, as contended by the appellant. We are of the considered view that in the factual situation obtained in the case, the decision of the Apex Court reported in **Ramachandrappa Vs Royal Sundaram Aliance Insurance Company [(2011) (13) SCC 236],** can act as a guidance in the matter of fixation of monthly income. In that case in respect of a coolie who met with an M.A.C.A.No.1007/2011 6 accident in the year 2004, the Apex Court fixed the monthly income at Rs.4,500/-. The accident involved in this case, had occurred on 24.2.08 and it was while undergoing treatment that Sri. Anilkumar died on 13.8.09. At the time of his death he was aged 35 years. In such circumstances we are of the view that the fixation of monthly income is on the lower side and taking into account the aforesaid facts, it can be safely taken and fixed as Rs.6,500/-. We do so. There is no dispute with respect to the multiplier adopted by the Tribunal as it was identified with reference to the age of the deceased. So also, taking into account the number of dependant family members, the Tribunal had correctly deducted 1/3 of the income of the deceased towards his personal and living expenses which he would have incurred, had he been alive. In short, a reassessment of the compensation under the head loss of dependency is only required by substituting the re-fixed monthly income of the deceased. On such reassessment, the amount payable become Rs.8,32,000/-(Rs.6500x12x16x2/3). The Tribunal had already granted an amount of Rs.3,84,000/under that head. After deducting the said amount, the amount payable under the said head as compensation would be Rs.4,48,000/-. M.A.C.A.No.1007/2011 7 6. We will now, proceed to consider whether the appellant or other legal representatives including the fourth respondent are entitled to get enhanced compensation under any other heads. In the light of the fact that the accident in question had occurred in the year 2008, the appellant and other legal representatives are entitled to get the benefit of compensation in accordance with decision of the Apex Court reported in _**Rajesh v. Rajbir Singh [(2013) (3) KLT 89 SCC].**_ While considering the compensation payable towards loss of consortium and reimbursement of the expenses incurred towards funeral, imbibing the spirit of the said decision, compensation payable for loss of love and affection is also to be refixed. In the light of the decision in **Rajesh's** case (supra) the surviving spouse in a claim for compensation for death filed under Section 166 of the Motor Vehicles Act is entitled to get a minimum of Rs.1 lakh towards loss of consortium. The Tribunal has granted only an amount of Rs.10,000/- under that head. In such circumstances, the appellant who is the widow of the deceased Anilkumar is entitled to get an additional compensation of Rs.90,000/under that head. Going by the said decision, in the absence of evidence for higher expenses a minimum of Rs. 25,000/- can M.A.C.A.No.1007/2011 8 be granted towards funeral expenses. The Tribunal had granted only an amount of Rs.3,000/- under that head. Hence, an amount of Rs.22,000/- is granted additionally under that head. Taking note of the fact that the fourth respondent who is the mother of the deceased and the father of the deceased are survived by the deceased and they are the legal representatives and septuagenarians, we are of the view that an amount of Rs.50,000/- can be granted additionally towards loss of love and affection. The Tribunal had granted only an amount of Rs.10,000/- thereunder. Towards bystander's expenses, the Tribunal had granted only an amount of Rs.6,000/-. Admittedly, Sri.Anilkumar had been an inpatient for a period of 128 days before succumbing to the injuries sustained in the accident. Taking into account the fact that the accident had occurred in the year 2008, we are of the view that, the appellants are entitled to get reimbursement of the expenses under that head, at the rate of Rs.200/- per day. Hence, the amount payable towards bystander's expenses would be Rs.25,600/-. After deducting an amount of Rs.6,000/- granted by the Tribunal under the said head, an amount of Rs.19,600/- is granted additionally under that head. Towards loss of estate, the Tribunal had granted only an M.A.C.A.No.1007/2011 9 amount of Rs. 5,000/-. We are inclined to grant an amount of Rs.5,000/- additionally under that head. Towards pain and suffering, the Tribunal had granted only an amount of Rs.25,000/-. It is a fact borne out from the records that after sustaining the injuries on 24.5.2008, Anilkumar died due to the complication arising from the head injuries sustained in the accident only on 13.8.2009. In other words, he had to suffer for the injuries sustained for a period of about 1½ years. In such circumstances, we are inclined to grant an amount of Rs.25,000/- additionally under that head. In the light of the enhancement made by us, the total amount of additional compensation payable in this case would be Rs.6,59,600/which is awarded. It is made clear that out of the said additional compensation, the appellant alone would be entitled to get the additional compensation granted by us under the head loss of consortium. So also, the additional compensation granted towards loss of love and affection is payable only to the fourth respondent and Sri. Sankaran, the father of the deceased in whose favour a share was allotted by the Tribunal as per the impugned award. The rest of the amount of additional compensation shall be apportioned between the appellant, the fourth respondent and the aforesaid Sri. M.A.C.A.No.1007/2011 10 Sankaran, the father of the deceased, in the ratio fixed by the Tribunal, viz., in the ratio of 1:1:1. The said additional compensation will carry interest at the rate of 8% p.a from the date of the petition till its realisation. In the absence of any dispute regarding the liability of the third respondent to indemnify the insured owner of the offending vehicle, the third respondent is directed to deposit the additional compensation along with interest thereon, within a period of three months from the date of receipt of a copy of this judgment. Needless to say that before releasing the amount on deposit, the Tribunal shall realise the court fee payable taking into account the additional compensation granted under this judgment. This appeal is disposed of as above. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR JUDGE** **Sd/ANIL K.NARENDRAN, JUDGE** al/- True copy P.S to Judge