Sainabha & Others v. Sulaiman P & Mahesh C & Oriental Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ## **`FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944`** ## **`MACA NO. 29 OF 2014`** ## **`AGAINST THE AWARD IN OPMV 390/2012 OF MOTOR ACCIDENT CLAIMS`** ## **`TRIBUNAL, KOZHIKODE`** ## **`APPELLANTS/PETITIONERS:`** - **`1 SAINABHA, W/O.LATE MOOSAKUTTY. AGED 49 YEARS, RESIDING AT KUNDATTIL HOUSE,P.O.KARUVANTHIRUTHY, FEROKE, KOZHIKODE`** - **`2 MUHAMMED SHAMEER K, S/O.MOOSAKUTTY, AGED 29 YEARS,RESIDING AT KUNDATTIL HOUSE, P.O.KARUVANTHIRUTHY, FEROKE, KOZHIKODE`** - **`3 SAREENA D/O.LATE MOOSAKUTTY, AGED 26 YEARS, RESIDING AT KUNDATTIL HOUSE, P.O.KARUVANTHIRUTHY, FEROKE, KOZHIKODE`** - **`4 SHAHINA D/O.LATE MOOSAKUTTY, AGED 23 YEARS, RESIDING AT KUNDATTIL HOUSE, P.O.KARUVANTHIRUTHY, FEROKE, KOZHIKODE`** - **`5 MUHAMMED SHAMSEER, AGED 18 YEARS, RESIDING AT KUNDATTIL HOUSE, P.O.KARUVANTHIRUTHY, FEROKE, KOZHIKODE BY ADV SRI.AVM.SALAHUDIN`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 SULAIMAN P`** - **`S/O MOOSA, AGE NOT KNOWN, RESIDING AT 1/1648, PUTHUKUDI MEETHAL HOUSE, (PO) GA COLLEGE, KOZHIKODE 673001`** - **`2 MAHESH C S/O AYYAPPUTTY @ CHINNAN, AGED 33 YEARS, RESIDING AT PADANNAKOTT HOUSE, CHALIYAM P.O, KOZHIKODE 673301`** - **`3 ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE :II PARAMOD BUILDING, CHEROOTTY ROAD, KOZHIKODE. 673001 BY ADV VPK.PANICKER`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 19.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 29 OF 2014 ``` ``` 2 ``` ## **JUDGMENT** This is an appeal filed under Section 173 of the Motor Vehicles Act (hereinafter referred to as ‘the MV Act) by the petitioners in O.P.(MV) No.390/2012 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode, challenging award dated 16.02.2011. The respondents herein are the respondents before the Tribunal. 2. Heard both sides. 3. The short facts of the case are as follows: The appellants approached the Tribunal by filing petition under Section 166 of the MV Act and claimed compensation to the tune of Rs.10,00,000/-, on the assertion that one ‘Moosakkutty’, the husband of the first appellant and the father of appellants 2 to 5 died in consequence of a motor accident occurred on ``` MACA NO. 29 OF 2014 ``` ``` 3 ``` 19.07.2011 at about 7.45 p.m., while the above said Moosakkutty was travelling on a bicycle from Cheruvannur to Feroke. 4. The further case put up by the appellants before the Tribunal is that, the second respondent, who had driven the bus in a rash and negligence manner, hit down the bicycle where the deceased was travelling and thereby ‘Moosakkuty’ sustained very serious injuries. Though he was admitted and treated, in consequence of the injuries he breathed his last. 5. The first respondent was declared ex parte by the Tribunal. 6. The third respondent Insurance Company filed written statement denying accident and negligence. The quantum of compensation also was challenged, while admitting the policy. ``` MACA NO. 29 OF 2014 ``` ``` 4 ``` 7. The Tribunal adjudicated the matter, relying on Exts.A1 to A6 marked on the side of the appellants, since no evidence let in by the respondents. 8. After evaluating the evidence, the Tribunal granted Rs.5,10,500/- as compensation along with 8% interest . 9. While impeaching the award, it is submitted by the learned counsel for the appellants that the monthly income taken by the Tribunal is on lower side, where the appellants claimed income of the deceased ‘Moosakkuty’ at Rs.7,626/- per month as a worker of Standard Tile and Clay Works Pvt. Ltd. Kozhikode. She submitted further that Rs.8,000/- ought to be fixed, if the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** is applied. This legal position is not disputed by the learned counsel for the Insurance ``` MACA NO. 29 OF 2014 ``` ``` 5 ``` Company. Therefore, monthly income for the purpose of calculating ‘dependency income’ is fixed at Rs.7,626/-. Following the ratio in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662),** 10% addition (applicable to age group 50 – 60) is to be given in this case, where as per Ext.A3 copy of wound certificate and Ex.A2 postmortem certificate, the deceased was aged 53 years at the time of accident. Thus, the monthly income for the purpose of calculating ‘loss of dependency’ is fixed as Rs.8,389/-. In this matter, deduction towards the personal and living expenses of the deceased is 1/4[th] , since the number of claimants are 5. The multiplier applicable is ‘11’ following the ratio in **Sarla Verma (Smt) & Ors v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)].** Thus, the ‘loss of dependency income’ is re-calculated as under: ``` MACA NO. 29 OF 2014 ``` ``` 6 ``` 8,389 x 12 x 11 x 3/4 = 8,30,511/- Thus, the appellants are entitled to get total compensation of **Rs.8,30,511/-** under the head ‘loss of dependency’. 10. Similarly, the appellants together are entitled to get **Rs.2,00,000/-** towards ‘loss of consortium’ at the rate of 40,000/- per month and **Rs.15,000/-** each, is liable to be granted towards ‘loss of estate’ and ‘funeral expenses’, following the ratio in **Pranay Sethi’s** case (supra) 11. It is noticed that the Tribunal granted Rs.10,000/- under the head ‘pain and sufferings’ and Rs.25,000/- under the head ‘love and affection’. The same are impermissible as per the ratio in **United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and Others [2020(3) KHC 760].** Thus, the total compensation entitled by the appellants ``` MACA NO. 29 OF 2014 ``` ``` 7 ``` is **Rs.10,27,511/-** (8,30,511 + 2,00,000 + 15,000 + 15,000 + 1000 (Transportation) + 1000 (Damage to clothing) – 35,000) In the result, this appeal stands allowed. It is ordered that the appellants are entitled to get **Rs.10,27,511/-** (Rupees ten lakh twenty seven thousand five hundred and eleven only) as total compensation with the same rate of interest awarded by the Tribunal from the date of petition till the date of deposit or realisation. It is noticed that court fee for Rs.10,00,000/- alone was valued by the appellants and they are liable to pay court fee for the compensation to the tune of Rs.27,511/-. Therefore, the appellants are bound to deposit Rs.275/- in addition to the court fee already ordered to be paid by the Tribunal, by separate cheque in the name of M.A.C.T. ``` MACA NO. 29 OF 2014 ``` ``` 8 ``` In this case, the first appellant/claimant is the wife and the other appellants are children. Therefore, the award amount stands apportioned in the proportion 40% in the name of the first appellant and the remaining in equal proportion in the names of appellants 2 to 5. Therefore, the insurer shall deposit the balance amount in the name of the appellants in the above proportion within two months, after adjusting amount, if any, already deposited. On deposit, the appellants can withdraw the same. **Sd/-** **A. BADHARUDEEN JUDGE** nkr