Sahira Saleem and others v. Abdul Raheem P.M., Mathew O.J., Azeez P.S and The 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 THURSDAY, THE 6TH DAY OF JULY 2017/15TH ASHADHA, 1939 MACA.No. 2329 of 2012 () ------------------------- AGAINST THE AWARD IN OPMV 134/2010 of MACT, KALPETTA DATED 22-06-2012 ## APPELLANTS/PETITIONERS: ---------------------------------------- 1. SAHIRA SALEEM, AGED 32 YEARS, W/O.SALEEM, PULIKKALKUNNEL, MANAVAYAL POST, PULPALLY. 2. SIDHIQUE, AGED 72 YEARS, F/O.SALEEM, PULIKKALKUNNEL, MANAVAYAL POST, PULPALLY. 3. PATHUMMA, AGED 64 YEARS, W/O.SIDHIQUE, PULIKKALKUNNEL, MANAVAYAL POST, PULPALLY. 4. SHAHANA, AGED 13 YEARS, (MINOR) D/O.SALEEM, REP. BY MOTHER SAHIRA, PULIKKALKUNNEL, MANAVAYAL POST, PULPALLY. 5. SHABANA,AGED 9 YEARS, (MINOR) D/O.SALEEM, REP. BY MOTHER SAHIRA, PULIKKALKUNNEL, MANAVAYAL POST, PULPALLY. 6. MUHAMMED YASSIN, AGED 6 YEARS, (MINOR) S/O.SALEEM, REP. BY MOTHER SAHIRA, PULIKKALKUNNEL, MANAVAYAL POST, PULPALLY. BY ADVS.SRI.A.V.JAMES SRI.P.DALBI EMMANUEL ## RESPONDENT(S)/RESPONDENTS: ---------------------------------------- 1. ABDUL RAHEEM P.M., AGED AND FATHER'S NAME NOT KNOWN, S/O.MUHAMMEDKUTTY, KONNIKKAL HOUSE, PAZHUPPATHOOR P.O., SULTHAN BATTERY, WAYANAD DT. PIN-673592. 2. MATHEW.O.J., OTTAPLACKAL HOUSE, THARIYODE P.O., POZHUTHANA, KALPETTA, WAYANAD DT., PIN-673 589. 3. AZEEZ.P.S, PULIKKALKUNNEL, IRULAM, MANAVAYAL POST, PULPALLY, WAYANAD DT., PIN-673579. 4. THE UNITED INDIA INSURANCE COMPANY LIMITED, REP. BY ITS BRANCH OFFICE, RAVUTHAR BUILDING, PINANGODE, ROAD JUNCTION, KALPETTA P.O., WAYANAD DT., PIN-673121. R4 BY ADV. SRI.P.V.JYOTHI PRASAD R BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 0607-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ. -----------------------------------M.A.C.A.No.2329 of 2012** **----------------------------------Dated this the 6[th] day of July, 2017** ## **J U D G M E N T** ## Ravikumar, J The death of the breadwinner of the family in a motor vehicle accident made his legal heirs to file O.P.(M.V).No.134 of 2010 claiming a total compensation of 15,00,000/- under Section 166 of₹ the Motor Vehicles Act before the Claims Tribunal. The said claim petition was allowed by the Tribunal as per the impugned award and a total compensation of 5,07,100/- was awarded with interest @₹ 7.55% per annum from the date of petition till realisation. It is aggrieved by the inadequacy of the quantum of compensation awarded by the Tribunal that this appeal has been preferred. 2. A brief narration of the facts is necessary for a proper disposal of the appeal. On 08.08.2008 at about 6.p.m., while the deceased Saleem was travelling as a pillion rider on a motor bike bearing Registration No.KL-12A/9470, ridden by the third respondent, it collided with another motorbike bearing Registration No.KL-12B/7084 ridden by the first respondent. Saleem sustained injuries and succumbed to them on the same day itself. It is in the said circumstances claiming that he was an employee of one Sasimala Traders, Hill Produce Dealer at Padichira and was earning M.A.C.A.No.2329 of 2012 2 ₹11,000/-, the claim petition was filed. It was also stated therein that he was then aged about 30 years. The claimants are his wife, parents and minor children. The Tribunal assessed the compensation as can be seen from the tabulation column given in the impugned award and awarded a total compensation of ₹5,07,100/-. While the learned counsel for the appellants submitted that the quantum of compensation awarded is too inadequate and at any rate it is not the just compensation, the learned counsel appearing for the fourth respondent submitted that the appellants were adequately compensated as per the impugned award. 3. Heard the learned counsel for the fourth respondent. Since there is no dispute regarding the accident, the cause of the accident, the negligence on the part of the first respondent who was riding the motorcycle bearing Registration No.KL-12B/7084 and also the liability of the fourth respondent to indemnify the second respondent owner of the offending vehicle, the sole question that has to be considered is whether the appellants are entitled to enhanced compensation. 4. The accident occurred on 08.08.2008. The Tribunal determined the age of the deceased based on Ext.A8 which is the extract of the school admission register issued by the Headmaster, Government High School, Irulath, wherein the date of birth of the M.A.C.A.No.2329 of 2012 3 deceased was shown as 30.05.1979. Thus it is evident that the deceased was aged about 30 years at the time of accident. The multiplier was correctly identified by the Tribunal as '17'. To establish the claim regarding occupation and income, on the side of the appellants, the owner of the Sasimala Traders got examined as PW1. He deposed that the deceased was working in his shop and he has been paid 300/- per day towards wages. He also admitted that₹ he had issued Ext.A9 certificate. However, the Tribunal held that his evidence is unreliable. Before the Tribunal PW1 deposed that no documents are available with him regarding disbursement of wages to the deceased Saleem. It is also deposed that he did not collect any professional tax and remitted the same to the Local Self Government Institution concerned. Even going by the evidence of PW1, it can only be assumed that the deceased was working on daily wage basis. Taking into account all such aspects, we do not find any reason to interfere with the findings of the Tribunal in fixing the monthly income for calculation purpose that, it is unsafe to rely on the oral testimony of PW1 as also Ext.A9. If so, we are of the view that Tribunal has rightly decided to fix the monthly income notionally for calculation purpose. But, it is to be noted that the Tribunal fixed the monthly income only as 3,000/- for calculation₹ purpose. Therefore, the question is whether the fixation of notional M.A.C.A.No.2329 of 2012 4 income as 3,000/- seeks interference. As noticed hereinbefore the₹ accident had occurred on 08.08.2008 and the deceased was then aged only about 30 years. Ext.A6 Family Membership Certificate issued by the Village Officer, Irulath would reveal that the appellants/claimants are the legal heirs. Since they are the widow, parents and the minor children of the deceased, there can be no doubt with respect to the fact that they are all his dependants. Thus it can be seen that the deceased was maintaining a family consisting of himself and six others. Taking into account all these aspects, we are of the view that it is only proper to fix the monthly income of the deceased for calculation purpose, notionally at ₹7,000/-. Then the question is whether any addition is to be made to the said income reckoning the future prospects. The deceased was only aged 30 years and therefore, it can only be presumed that but for the untimely death, he would have had bright prospects in life. Taking into account the cost of living and price index prevalent at the time of the accident and further that by lapse of time such factors would have persuaded him also to seek for enhanced rate of wages for his service and further that in respect of such persons, there would not be any age of retirement and they could continue to work as long as they are able to do it, we are of the view that an addition has to be made to the income. In such circumstances, we 5 M.A.C.A.No.2329 of 2012 are inclined to make an addition of 30% to the income fixed reckoning the future prospects. The Tribunal has deducted 1/4[th] of the income towards personal and living expenses which the deceased would have incurred had he been alive. This was perfectly in tune with the dictum laid down by the Honourable Apex Court in the decision reported in _**Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]**_ . In such circumstances, a re-assessment of the compensation under the head loss of dependency is required only by substituting the re-fixed notional monthly income. It has to be taken, based on the discussion as above. In such circumstances, the amount payable is ₹13,92,300/- (9100x12x17x3/4). The Tribunal has already granted an amount of 4,59,000/-. After deducting the said amount, the₹ appellants are entitled to get an additional compensation of ₹9,33,300/- under the head loss of dependancy. Though the death had occurred on the same day itself, it is evident that he must have suffered excruciating pain due to the injuries. Hence, we are inclined to grant an amount of 5,000/- towards the head pain and₹ sufferings in addition to 5000/- already granted by the Tribunal.₹ Towards the head loss of consortium, the compensation granted by the Tribunal is only 10,000/-. While considering the question₹ whether fixation of compensation under the said head by the M.A.C.A.No.2329 of 2012 6 Tribunal invites interference, it is relevant to refer to the decision of the Apex Court in _**Rajesh v. Rajbirsingh [2013 (3) KLT 89]**_ . In the said decision, the Apex Court held that in an application for compensation filed under Section 166 for death, under the head consortium the claimant is entitled to a minimum of 1,00,000/-.₹ The first appellant had lost marital bliss at the age of 30 years. Hence, we are of the view that she is entitled to get the benefit of the decision in _**Rajesh**_ 's case. In the view of the said decision, we are inclined to grant 90,000/- additionally under the head loss of₹ consortium. Towards loss of love and affection, imbibing the spirit of the very same decision, we are inclined to grant an amount of ₹90,000/- additionally taking into account the fact that the deceased was survived by three minor children aged 11, 7 and 4 years respectively and aged parents. Towards funeral expenses following the decision in _**Rajesh**_ 's case an amount of 20,000/- is granted₹ additionally, over and above 5,000/- already granted by the₹ Tribunal. Going by the said decision in the absence of evidence of higher expenses a minimum of 25,000/- shall be granted towards₹ funeral expenses. 5. In the light of the above enhancements made by us, the appellants are entitled to get a total additional compensation of ₹11,38,300/-. It is granted. The said additional compensation will M.A.C.A.No.2329 of 2012 **==> picture [8 x 9] intentionally omitted <==** carry interest @ 8% per annum from the date of petition till realisation. The fourth respondent is directed to deposit the said amount within a period of three months from the date of receipt of a copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** AV /True Copy/ P.A to Judge