Sameer et al. v. Nazar K.P. and Others (MACA No.1909/2014)

MACA.No.1909/2014 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 1[ST] DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945_ ## _MACA NO. 1909 OF 2014_ _AGAINST THE AWARD DATED 18.06.2013 IN OP(MV) 1257/2012 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE_ ## _APPELLANTS/PETITIONER:_ _1 SAMEER AGED 27 YEARS S/O.ABOOBACKER, RESIDING AT 415(17/13), PUTHEN VEETTIL, POST OLAVANNA, ODUMBRA, KOZHIKODE._ _2 ANHAM MUHAMMED, AGED 3 YEARS D.O.B.:13-1-2009, MINOR REPRESENTED BY HIS FATHER/NEXT FRIEND SAMEER, S/O.ABOOBACKER, 415(17/13), PUTHENVEETTIL, POST OLAVANNA, ODUMBRA, KOZHIKODE._ _3 KOYASSAN, AGED 49 YEARS S/O.AHAMMEDKOYA,_ _4 SUBAIDA, AGED 44 YEARS, W/O.KOYASSAN,_ _BOTH RESIDING AT 2007,NAKKARUVEETTIL 25, KOZHIKODE._ _BY ADVS. SRI.V.S.CHANDRASEKHARAN SRI.M.V. DAS SMT.LEKSHMI SWAMINATHAN_ MACA.No.1909/2014 2 ## _RESPONDENTS/RESPONDENTS:_ - _1 NAZAR K.P., S/O.MUHAMMED, AGE NOT KNOWN, RESIDING AT 7/338, KUZHIPPALLI, MEETHAL, POST PANTHEERANKAVU, KOZHIKODE-673 019._ - _2 M.V.SAHEER ALI, S/O.ABOOBACKER, AGED 27 YEARS, RESIDING AT THAIKKOTTATHIL HOUSE, KUTTIKATTOR POST, KUNNAMANGALAM, KOZHIKODE-673 571._ - _3 THE ORIENTAL INSURANCE COMPANY LIMITED, DVIL.OFFICE, I, SEEMA BUILDING, GH ROAD, OPP.KOTTAPPARAMBU, HOSPITAL, KOZHIKODE-673 008._ _BY ADVS. SRI.VPK.PANICKER_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1909/2014 3 ## **JUDGMENT** The appellants are the petitioners in O.P.(M.V.).No.1257 of 2012 on the files of the Principal Motor Accident Claims Tribunal, Kozhikode. The claim petition was submitted by them seeking compensation for the death of a housewife aged 22 years due to the injuries sustained in a motor accident that occurred on 06.09.2012. 2. The accident occurred when the motorcycle on which she was a pillion rider, was hit down by a stage carriage driven by the 2[nd] respondent. The 1[st] respondent was the registered owner of the said vehicle and it was insured with the 3[rd] respondent. The deceased was a housewife and the monthly income claimed was Rs.6,000/-. The 1[st] appellant is the husband, the 2[nd] appellant is the son and the 3[rd] & 4[th] appellants are the parents of the deceased. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent alone contested the matter by filing a written statement wherein, they admitted the coverage of policy but disputed the negligence as well as the quantum of compensation claimed. MACA.No.1909/2014 4 4. The evidence in this case consists of Exts.A1 to A4 from the side of the appellants and no evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent in driving the stage carriage and being the insurer; the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.4,72,000/- and the 3[rd] respondent was directed to deposit the said amount with interest @ 8% per annum from the date of petition with proportionate cost. This appeal is submitted by the appellant seeking enhancement of compensation in such circumstances. 5. Heard Sri.V.S. Chandrasekaran, learned counsel appearing for the appellants and Sri.V.P.K. Panicker, learned counsel appearing for the 3rd respondent. 6. The only dispute in this appeal relates to the quantum of compensation. The main head to which the attention of this Court was brought was the compensation for loss of dependency. It was pointed out that the Tribunal assessed the compensation by taking the monthly income as Rs.3,000/- which is grossly MACA.No.1909/2014 5 inadequate. It is also pointed out by the learned counsel for the appellants that considering the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735], at least an amount of Rs.8,500/- ought to have been taken as the monthly income. 7. After considering the materials placed on record, I find some force in the said contention. The deceased was a housewife and the monthly income claimed was Rs.6,000/-. The learned counsel for the Insurance Company contends that, a monthly income higher than Rs.6,000/- which is as per claim of the appellants, should not be taken. However, I am of the view that, since the deceased was a housewife, she was not an actual earning member of the family. The services rendered by a housewife to the other members of the family including the earning member, cannot be measured in terms of money. However, the said services have to be evaluated in terms of money for assessing the compensation. The services of a housewife are an unavoidable part of the family, which helps the earning MACA.No.1909/2014 6 members of the family to continue their avocation without hassles, thereby to provide support to the family. In such circumstances, despite being a non earning member of the family, for assessing the compensation for loss of dependency, the monthly income which is not less than the monthly income that is usually fixed for the persons employed in other avocations has to be fixed. Thus, as rightly pointed out by the learned counsel for the appellants, when the method of computation of monthly income evolved from the principles laid down in **Ramachandrappa** and **Syed Sadiq** (cited supra) is adopted, the monthly income of an ordinary employee with respect to an accident occurred in the year 2004 has to be fixed as Rs.4,500/- even without any evidence. For determining the monthly income of subsequent years, the usual method is to add Rs.5,00/- each per year. When that method is adopted, in respect of an accident occurred in the year 2012, the monthly income has to be fixed as Rs.8,500/-. In this case, I am inclined to accept Rs.8,500/- as the monthly income, even though the monthly income claimed was Rs.6,000/- only. It is also to be noted in this regard that, in **Minu Rout v. Satya Pradyumna Mohapatra [2013 (10) SCC 695],** the Honourable Supreme Court was MACA.No.1909/2014 7 pleased to take the monthly income higher than what was actually claimed in the claim petition. Therefore, I do not find any legal impediment in taking a higher monthly income than claimed, if such a higher monthly income is necessary to ensure “just compensation” to the victim. 8. The learned counsel for the appellants further contended that the deduction to be made towards personal expenses should have been ¼, whereas the Tribunal has made a deduction of 1/3. The said contention was opposed by the learned counsel for the Insurance Company by pointing out that, as far as the 3[rd] and 4[th] respondents are concerned, they are parents of the deceased. Since there is no case for the 3[rd] and 4[th] appellants that they were residing along with the deceased and the other claimants, they cannot be treated as dependents. The appellants have not adduced any other evidence to show that they were actually dependent upon the deceased. Therefore, while calculating the compensation for dependency, they cannot be treated as dependents. The said contention is to be accepted, as there is no evidence on record to show that they were actually dependents. Evidently, the deceased was married and was living MACA.No.1909/2014 8 separately, along with the 1[st] and 2[nd] appellants. Therefore, I do not find any illegality in deducting 1/3 towards the personal expenses of the deceased. 9. Another aspect to be noticed is that, the Tribunal did not make any addition towards future prospects, which is against the principles laid down by the Honourable Supreme Court in **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)].** Therefore, considering the fact that she was aged 22 years, 40% of the income has to be added towards future prospects. Thus, while re-assessing the compensation with the above revised criteria, the compensation under the head of loss of dependency would come to Rs.17,13,600/-[(8500+40%)x12x 18x2/3]. The amount already awarded by the Tribunal was Rs.4,32,000/- and thus, the additional compensation would come to Rs.12,81,600/-. 10. The amount awarded towards funeral expenses was Rs.8,000/- only. In the light of **Pranay Sethi (supra)** , a further sum of Rs.7,000/- is awarded under this head. Similarly, a further sum of Rs.10,000/- is awarded towards loss of estate, as the amount awarded by the Tribunal under this head was only MACA.No.1909/2014 9 Rs.5,000/-. The next head which requires enhancement is loss of consortium. The Tribunal awarded only Rs.5,000/- under the said head. However, in the light of the principles laid down by the Honourable Supreme Court in **Magma General Insurance Co.Ltd. v. Nanu Ram & Others 2018 (3) KLT Online 3095 (SC)** and **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760]** , all the appellants, being the husband, child and parents, are entitled to compensation at the rate of Rs.40,000/- each under the head of loss of consortium. However, the learned counsel for the Insurance Company pointed out that, in addition to the amount towards the loss of consortium, a further sum of Rs.15,000/- was granted towards loss of love and affection and this was not warranted. The said contention is accepted in the light of the principles laid down by the Honourable Supreme Court in **Satinder Kaur (supra),** wherein it was held that when compensation is granted for loss of consortium, no separate amount is to be granted towards loss of love and affection. Thus, that amount can be adjusted to the amount awarded towards loss of consortium. Thus, the additional compensation towards the loss of the consortium would come to Rs.1,40,000/-. Accordingly, the MACA.No.1909/2014 10 total additional compensation receivable by the appellants would come to Rs.14,38,600/-. Accordingly, this appeal is allowed, the award dated 18.06.2013 in O.P(MV).No.1257 of 2012 passed by the Motor Accidents Claims Tribunal, Kozhikode is hereby modified by awarding an additional compensation of Rs.14,38,600/- (Rupees fourteen lakhs thirty eight thousand and six hundred only) and the 3[rd] respondent Insurance Company is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. (JUDGE)** DG/Scs/5.12.23