Saidalikutty and others v. P. N. Abdul Khader and The National Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI TUESDAY, THE 26TH DAY OF JUNE 2012/5TH ASHADHA 1934 MACA.No. 636 of 2009 (B) -----------------------------OPMV.580/2004 of M.A.C.T.,KOZHIKODE ----------- APPELLANT(S)/PETITIONERS: -------------------------------- 1. SAIDALIKUTTY, S/O.ATHRUMAN HAJI, AGED 46 YEARS. 2. BALKEES, W/O.SAIDALIKUTTY, AGED 38 YEARS. 3. LAMEES, D/O.SAIDALIKUTTY, AGED 21 YEARS. 4. JALISHA, D/O.SAIDALIKUTTY, AGED 16 YEARS, D.O.B. 21/09/1987. 5. SHERIN SHABANA (MINOR), D/O.SAIDALIKUTTY, AGED 13 YEARS, D.O.B.22/3/1991 (MINORS REPRESENTED BY THEIR FATHER AND LEGAL GUARDIAN SAIDALIKUTTY) ALL ARE RESIDING AT JISHILS HOUSE, M.KANARAN ROAD EAST NADAKAVU, ERANHIPAL BY ADV. SRI.NIRMAL. S RESPONDENT(S)/RESPONDENTS: ------------------------------------- 1. P.N.ABDUL KHADER, S/O.POCKER, - KALPETTA BAZAR MAIN ROAD, KALPETTA POST, WYNAD. MACA.No. 636 of 2009 (B) -2- 2. THE NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE, KALPENA SHOPPING COMPLEX, MAIN ROAD KALPETTA. BY ADV. SRI.JOE KALLIATH BY ADV. SRI.VINOD SINGH CHERIYAN BY ADV. SRI.R.SUDHISH BY ADV. SMT.M.MANJU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A No.636 of 2009 -----------------------------------------------Dated this the 26[th] day of June, 2012 ## **JUDGMENT** ## _Ramakrishna Pillai, J_ The appellants are the aged parents and sisters of a 19 year old student by name Jishil who succumbed to the injuries sustained by him in a motor occurrence on 15/02/04 while riding a motorcycle as it collided with another motorcycle which was coming from the opposite direction. The first respondent was the rider of the other motorcycle which was insured with the second respondent Insurance Company. Against the claim of ` 4 lakhs the learned Tribunal awarded a sum of ` 1,38,677/- finding that there was 25% contributory negligence on the part of the deceased on account of the fact that he was not holding a valid driving licence at the relevant time. As the first respondent was not holding a valid driving licence at the time of the accident M. A. C. A No.636 of 2009 -2- though the second respondent Insurance Company was directed to pay the amount there was a direction to recover the same from the first respondent after effecting payment. 2. In this appeal the claimants are challenging the finding regarding contributory negligence as well as the adequacy of compensation. 3. We have heard the learned counsel for the appellants and the learned counsel for the second respondent Insurance Company. 4. Though there was appearance for the first respondent who was the registered owner of the offending vehicle, when the matter came up for hearing the learned counsel for the first respondent submitted that he has no instructions from his party. 5. The impugned award was also perused. 6. The grievance voiced against the impugned judgment by the learned counsel for the appellants is too fold. Firstly it was argued that there was no justification in reducing 25% of the total compensation arrived at finding M. A. C. A No.636 of 2009 -3- that the deceased was not holding a valid driving licence. The second argument is that adequate compensation was not awarded by the learned Tribunal under various heads especially under the head of loss of dependency as the learned Tribunal has adopted a lower multiplicand for arriving at the quantum. 7. The learned counsel for the second respondent Insurance Company per contra would submit that at the material time the deceased was not having a valid driving licence and he was charge sheeted by the police. It was further submitted by the learned counsel that the first respondent also was not holding a valid driving licence. That is the reason why the recovery right was given to the insured by the learned Tribunal. 8. Going through the award we notice that the only reason for finding that there was 25% of the contributory negligence on the part of the deceased was that the deceased was not holding a valid driving licence. But it is trite after the decision of the Apex Court in Sudhir Kumar M. A. C. A No.636 of 2009 -4- Rana v. Surinder Singh & Ors. [2008(3) KHC 883 (SC)] that mere non-possession of the driving licence by itself is not enough to reach a finding of rashness and negligence in driving. In view of the above decision, we hold that the finding of the learned Tribunal that there was 25% contributory negligence on the part of the deceased is not legally sustainable and the same has to be interferred with. 9. During the course of the submission, the learned counsel for the appellants produced the original of the driving licence held by the deceased and on a perusal, we are convinced that the same was valid up to 21/08/2023 i.e covering the period of accident date. Thus we nullify the finding of the learned Tribunal that there was 25% contributory negligence on the part of the deceased. 10. Coming to the quantum of compensation, we notice inadequacy of compensation awarded by the learned Tribunal under various heads. 11. The deceased was 19 years old and that he was a student. According to the learned counsel for the appellants, M. A. C. A No.636 of 2009 -5- the deceased was doing some part time work in Malabar Home Appliances and was earning a monthly income of ` 5,000/-. The learned Tribunal fixed the monthly income of the deceased at ` 1,300/-. The accident was in the year 2004. We are of the view that there is justification in fixing a higher notional monthly income considering the age of the deceased as well as the year in which the accident had occurred. Thus we fix the notional income of the deceased at ` 2,000/- per month. First appellant, the father of the deceased was aged 46 and the second appellant, the mother of the deceased was aged 38. For calculating the compensation for loss of dependency, we lean ourselves to the principle laid down by the Apex Court in Sarla Verma v. Delhi Transport Corporation (2010(2) KLT 802 SC). We adopt the multiplier applicable to the age group of the mother who is younger among the parents. The correct multiplier applicable to the age group of the mother of the deceased, i.e. the second appellant, is 15. As the deceased was unmarried one half of the amount has to be deducted in M. A. C. A No.636 of 2009 -6- consideration of the expenses which the deceased would have incurred had he been alive. When the dependency compensation is re-calculated adopting the revised monthly income as above as well as the correct multiplier applicable to the age group of the second appellant, it will stand enhanced to ` 1,80,000/-. As the learned Tribunal has awarded only a sum of ` 1,66,400/- under that head, the appellants become entitled to get an additional sum of ` 13,600/- under that head. We award the above amount to the appellants. 12. It is submitted by the learned counsel for the appellants that the deceased breathed his last only after three days, that too while undergoing treatment in the hospital. Towards compensation for pain and suffering the learned Tribunal awarded a sum of ` 5,000/- which according to us is on the lower side. We award an additional sum of ` 10,000/- on that count. 13. We notice that no sum was awarded by the learned Tribunal towards loss of estate and thus we award a sum of M. A. C. A No.636 of 2009 -7- ## ` 5,000/- under that head. 14. It is in evidence that the deceased was hospitalised after the accident for two days. Hence, the appellants are entitled to get an amount towards medical expenses and we award a sum of ` 2,000/- under that head. 15. We notice that the deceased was survived by his parents and three sisters of which two were minors at the relevant time. As the deceased was the only son of appellants 1 and 2, we are of the view that a reasonable sum has to be awarded as compensation for loss of love and affection. As the amount awarded by the Tribunal under that head is only ` 10,000/-, we award an additional sum of ` 30,000/- towards loss of love and affection. 16. Thus in total the appellants become entitled to get an additional sum of ` 60,600/-. 17. The amount arrived at by the learned Tribunal was ` 1,84,900/-. However, after deducting 25% of the same, the learned Tribunal has awarded only a sum of ` 1,38,675/- to the appellants. As we have already found that no amount M. A. C. A No.636 of 2009 -8- can be deducted on account of the contributory negligence we find that the appellants become entitled to get full amount arrived at by the learned Tribunal plus the additional amount awarded by us in this appeal (i.e. ` 1,84,900 + 60,600/- = ` 2,45,500/-). The entire amount shall carry interest at the rate of 7% per annum from the date of claim petition till realisation. 18. The appeal is allowed. The impugned award shall stand modified as above. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE M. A. C. A No.636 of 2009 -9-