Shereefa Beevi v. K.P. Imbichikoya Thangal and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 11[TH] DAY OF APRIL 2023 / 21ST CHAITHRA, 1945 ``` ## **`MACA NO. 192 OF 2010`** ``` AGAINST THE AWARD IN O.P(MV) NO.385/2003 OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS ``` ## **`TRIBUNAL, KOZHIKODE DATED 5-11-2007`** ## **`APPELLANT/2ND PETITIONER IN O.P(MV):`** ``` SHEREEFA BEEVI, AGED 42 YEARS, D/O KUNHI BICHIKOYA THANGAL, THANNICHALIL HOUSE,, P.O.PERUMUGAM, VIA FEROKE,CALICUT. BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN ``` ## **`RESPONDENTS/1ST PETITIONER/RESPONDENTS IN O.P.(MV):`** ``` 1K.P.IMBICHIKOYA THANGAL AGED 49 YERS, S/O AATTAKOYA THANGAL, SAYID MANZIL, P.O.CHIRAYIL, KONDOTTY, MALAPPURAM DISTRICT (FATHER OF THE, DECEASED) ``` ## **`2 B.SASIKUMAR, S/O.LATE BALAKRISHNAN NAIR BALAKRISHNA TRANSPORT, GURUVAYOOR.`** ``` 3P.K.HARI , S/O. KUMARAN , AGED 37 YEARS PONNARASSERRY HOUSE, CHAKKUMKANDAM (VIA), CHALUVEYI, CHAVEKKADE. ``` - **`4 THE NEW INDIA ASSURANCE CO.LTD. BRANCH OFFICE, ANUGRAHA BUILDING,, KADAKKANCHERY ROAD, KUNNAMKULAM.`** ``` BY ADVS. R2 BY SRI.ARUN ROY SRI.ASWIN KUMAR M J(D/004917/2017) SRI.R.NANDAGOPAL(K/001008/2017) R3 BY SRI.M.PREMCHAND R4 BY SRI.P.G.GANAPPAN ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD`** ``` ON 11.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.NO.192 OF 2010 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 11[th] day of April, 2023** This appeal is originated from an award passed by the Principal Motor Accidents Claims Tribunal, Kozhikode, (for short, the 'Tribunal') on 05.11.2007, in O.P.(MV) No.385/2003. 2. The appellant is the legal representative of one Mr.Sainul Aabid Thangal who died consequent to the injuries sustained in a motor accident occurred at about 3 pm on 04.12.2002. Raising a claim for Rs.3,00,000/- as compensation, the Original Petition above was moved before the Tribunal. Evidence was adduced by both parties in the Original Petition. On appreciation of the evidence on record, the Tribunal arrived at a sum of Rs.1,90,000/- as the total compensation payable to the appellant. The parties to this appeal will hereinafter be referred to as the petitioner and the respondent in accordance with their status before the Tribunal. 3. At the relevant time, when the Original Petition was filed, the deceased was survived by his parents. But, ``` M.A.C.A.NO.192 OF 2010 ``` after passing of the award, the father divorced the mother. Due to his reluctance to join in the appeal as appellant, he was arrayed as the 1[st] respondent. Contending that the compensation stands awarded by the Tribunal is unjust and unreasonable, the 2[nd] petitioner before the Tribunal who is none other than the mother of the deceased has approached this Court in the appeal on hand. 4. According to Sri.Jamaludheen K.M, the learned counsel for the appellant, the Tribunal is unjustified in awarding only a meager sum as compensation in favour of the petitioner. According to him, Rs.1,375/ fixed by the Tribunal as the monthly income is too low. The motor accident in the case on hand being occurred in the year 2002, the learned counsel canvassed for fixing a higher sum as the monthly income in proportion to the monthly income fixed by the Apex Court in the case of a Coolie worker in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236]** . According to him, the compensation payable under the heads loss of estate, funeral expenses and loss of ``` M.A.C.A.NO.192 OF 2010 ``` ``` 4 ``` consortium having been fixed by the Apex Court in **National Insurance Company Limited v. Pranay Sethi** **and others [2017 (4) KLT 662 (SC)],** the Tribunal ought to have awarded so. According to him, the petitioner is entitled to get Rs.16,500/- as compensation under each of the heads, loss of estate and funeral expenses and Rs.44,000/- per head as compensation under the head loss of consortium. 5. The learned counsel pointed out that Rs.2,000/was awarded as compensation by the Tribunal towards funeral expenses and failed to award any sum as compensation towards loss of estate and loss of consortium. According to him, the petitioner as legal representative of the deceased is not entitled to get Rs.5,000/- and Rs.6,000/- respectively stands awarded by the Tribunal as compensation towards pain and suffering and loss of love and affection. The learned counsel canvassed for modification of the compensation under each of the heads. ``` M.A.C.A.NO.192 OF 2010 ``` ``` 5 ``` 6. The learned counsel for the 4[th] respondent – insurer, canvassed for maintaining the compensation stands awarded by the Tribunal contending it as just and reasonable. 7. As per the claim of the petitioner in the Original Petition, Mr.Thangal was aged 22 years at the time of his death, a Coolie worker by occupation and earning Rs.5,000/- as monthly income. He was a bachelor. Petitioner failed to adduce any reliable evidence to establish his occupation and monthly income. 8. In **Ramachandrappa** supra the Apex Court had fixed Rs.4,500/- as the monthly income in the case of a coolie worker, who had met with a motor accident in the year 2004. Therefore, this Court finds it reasonable to fix Rs.3,500/- as the monthly income of the deceased. Multiplier has been correctly adopted by the Tribunal as 18 and it being correct, the same is maintained. The deceased was aged 22 years and being a self employed man, addition of 40% to the monthly income fixed in consideration of loss of future prospects is reasonable. ``` M.A.C.A.NO.192 OF 2010 ``` ``` 6 ``` Accordingly, Rs.4,900/- is arrived at (Rs.3,500/- + Rs.1400/-). The deceased being a bachelor, half of the monthly income fixed is liable to be deducted in consideration of personal expenditure, liable to be met with by the deceased, had he been alive. 9. When compensation for loss of dependency is reassessed on the basis of Rs.4,900/-, the modified monthly income, Rs.5,29,200/- [(Rs.4,900 x 12 x 18) x 1/2] is arrived at. Rs.1,76,000/- stands awarded by the Tribunal is deducted from the sum arrived at and thus the petitioner is entitled to get Rs.3,53,200/- as additional compensation under that head. 10. Rs.2,000/- stands awarded by the Tribunal as compensation towards funeral expenses, when adjusted against Rs.16,500/- payable in view of **Pranay Sethi** supra, petitioner is entitled to get Rs.14,500/- as additional compensation under that head. 11. As compensation towards loss of estate, the Tribunal failed to award compensation. Rs.16,500/- being the sum for which the petitioner is entitled to, it is granted ``` M.A.C.A.NO.192 OF 2010 ``` ``` 7 ``` in his favour. As compensation towards loss of consortium, though the father of the deceased are entitled to get compensation, in view of his second marriage and failure to join as appellant, this Court is declined to award it in his favour. The mother of the deceased is entitled to get Rs.44,000/- as compensation under the head loss of consortium and this courts awards accordingly. 12. As per the position of law settled, the legal representatives of the deceased are not entitled to get compensation for love and affection and pain and suffering. The Tribunal has awarded Rs.6,000/- and Rs.5,000/- as compensation under those heads and those sums are liable to be deducted from the total sum that would be arrived at as additional compensation. 13. When re-assessed in the above manner, Rs.4,17,200/- (Rupees Four lakhs seventeen thousand and two hundred only) [(Rs.3,53,200/- + Rs.14,500/- + Rs.44,000/- + Rs.16,500/-) - ( Rs.11,000/-)] is arrived at as the total additional compensation. It carries interest at the rate of 7.5% per annum from the date of filing of the ``` M.A.C.A.NO.192 OF 2010 ``` ``` 8 ``` Original Petition till the date of deposit, excluding 131 days of delay occurred in filing the appeal. 14. The 4[th] respondent, being the insurer, shall pay the additional compensation with interest fixed on it to the appellant, in accordance with the direction in Circular No.03/2019 issued by this Court on 06.09.2019, within a period of two months from the date of receipt of a certified copy of this judgment. The appeal stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** NR