Subaida and others v. C.D. Biso S/O O.L. Devassy; The Managing Partner M/S Allied Surface Logistics; National Insurance Company Limited (MACA No.2012/2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 MACA NO. 2012 OF 2013 OPMAC 154/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR** ## **APPELLANT/PETITIONERS:** |1|SUBAIDA, AGED 33 YEARS, W/O.LATE ALI,'ALUNGAL| |---|---| ||HOUSE,VEENKUKKAL P.O PARAPPUR,TIRURANGADI| ||TALUK,MALAPPURAM DISTRICT 676 503| |2|ITHACHU, AGED 83 YEARS (DIED)*| ||W/O.BEERAN HAJI,W/O.LATE ALI,'ALUNGAL| ||HOUSE,VEENKUKKAL P.O PARAPPUR,TIRURANGADI| ||TALUK,MALAPPURAM DISTRICT 676 503| |3|HANNA SHERIN (MINOR), AGED 15 YEARS| ||D/O.LATE ALI,W/O.LATE ALI,'ALUNGAL| ||HOUSE,VEENKUKKAL P.O PARAPPUR,TIRURANGADI| ||TALUK,MALAPPURAM DISTRICT 676 503| |4|AYISHA SHERIN (MINOR), AGED 8 YEARS| ||D/O.LATE ALI,W/O.LATE ALI,'ALUNGAL| ||HOUSE,VEENKUKKAL P.O PARAPPUR,TIRURANGADI| ||TALUK,MALAPPURAM DISTRICT 676 503| |5|FATHIMA SHERIN (MINOR), AGED 2 YEARS| ||D/O.LATE ALI,W/O.LATE ALI,'ALUNGAL| ||HOUSE,VEENKUKKAL P.O PARAPPUR,TIRURANGADI| ||TALUK,MALAPPURAM DISTRICT 676 503| |ADDL.6|MOIDEENKUTTY, S/O. BEERAN HAJI, ALANGADAN HOUSE,| ||P.O. PARAPPOOR, MALAPPURAM DISTRICT| |ADDL.7|MOHAMMEDKUTTY, S/O. BEERAN HAJI, ALANGADAN HOUSE,| ||P.O. PARAPPOOR, MALAPPURAM DISTRICT| |ADDL.8|ABDUL SHEREEF, S/O. BEERAN HAJI, ALANGADAN HOUSE,| ||P.O. PARAPPOOR, MALAPPURAM DISTRICT| ADDITIONAL APPELLANTS 6 TO 8 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 2ND APPELLANT AS PER ORDER DATED 15.01.2024 IN I.A. NO.1/2023. BY ADV SRI.K.K.MOHAMED RAVUF M.A.C.A. No.2012/2013 : 2 : ## **RESPONDENT/S:** 1 C.D.BISO S/O.O.L.DEVASSY,CHALIPARAM HOUSE,P.O CHERUVALLOOR 2 THE MANAGING PARTNER M/S.ALLIED SURFACE LOGISTICS,3/201,PALAPURAM,NEAR G.H.S KALAMASSERY 3 NATIONAL INSURANCE CO.LTD KORAMBAYIL ARCADE PANDIKKAD ROAD,MANJERI,MALAPPURAM DISTRICT BY ADVS. GEORGE A.CHERIAN, SC, NATIONAL INSURANCE COMPANY LIMITED ADV. P.G. JAYASHANKAR PGJ P.K.RESHMA (KALARICKAL)(K/875/2014) S.RAJEEV (K/001711/2019)(K/001711/2019) SAJANA V.H(K/1174/2021) SHAIJU GEORGE(K/001271/2021) AADERSH R.S. PANICKER(K/1255/2021) **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.2012/2013 : 3 : ## **JUDGMENT** The appellants are the petitioners in OP(MAC) No.154/2011 on the files of the Motor Accident Claims Tribunal, Tirur. 2. The said claim petition was submitted by the appellants seeking compensation for the death of one Ali, who died due to the injuries sustained in a motor accident that occurred on 14.02.2010. According to the appellants, the accident occurred when the car he was driving was hit by a tanker lorry driven by the 1[st] respondent in the claim petition. Consequent to the accident, he sustained serious injuries, and he was taken to the hospital. While undergoing treatment, he died on 03.03.2010. The deceased was aged 42 years as on the date of the accident and he was working as a Pharmacist in American European Medical Centre in Abudhabi. The monthly income claimed was Rs.25,000/-. The appellants are the wife, mother and the three children of the deceased. The claim petition was submitted in such circumstances. 3. The 1[st] and 2[nd] respondents, the owner and driver of the vehicle did not contest the matter. The 3[rd] respondent M.A.C.A. No.2012/2013 : 4 : insurance company filed a written statement admitting the coverage of policy for the vehicle. However, they disputed the negligence as well as the quantum of compensation claimed in the petition. 4. The evidence in this case consists of Exts.A1 to A24 from the side of the appellants and from the side of the insurer Ext.B1 was marked. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence on the part of the driver of the lorry and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.12,89,000/- and the tribunal was directed to deposit the amount along with 9% interest from the date of petition till realisation with proportionate costs. This appeal is submitted by the appellants seeking enhancement of compensation. 6. Heard Sri. K.K. Mohamed Ravuf, the learned counsel appearing for the appellants and Sri. P.G. Jayashankar, the learned counsel appearing for the 3[rd] respondent insurance company. M.A.C.A. No.2012/2013 : 5 : 7. The dispute in this appeal relates to the quantum of compensation. The learned counsel for the appellants would submit that, the amount awarded by the tribunal, particularly under the head of loss of dependency was grossly inadequate and requires reconsideration. However, the learned counsel appearing for the 3[rd] respondent would oppose the said contention by highlighting that a reasonable award has been passed, taking into account all relevant aspects and no interference is warranted. 8. I have carefully gone through the records. As mentioned above, the deceased was a Pharmacist working in Abudhabi. Ext.A22 is the certificate evidencing that the deceased had successfully completed the course of B.Pharm in April,1990. Ext.A21 is the passport which contains necessary endorsement evidencing his employment abroad. Ext.A5 is the statement of account in respect of his NRI account. On verification of the same, it would indicate that during the year 2009 there was a total remittance of Rs 4,16,007/-. This would indicate that, on an average he was getting more than Rs.30,000/- per month during the said year. Even though the learned counsel for the appellant M.A.C.A. No.2012/2013 : 6 : would submit that even though the appellants attempted to produce the salary certificate the same was not marked in evidence. When considering the entries in Ext.B5, it could be seen that there were regular remittances at particular intervals which would indicate the financial stability and capacity of the deceased. Therefore, the monthly income of Rs.10,000/- taken by the tribunal for assessing the compensation appears to be on lower side. This is particularly because, it is evidenced from Ext.A22 that he was a qualified Pharmacist. In such circumstances, a higher monthly income should have been taken into consideration. The monthly income of the deceased claimed by the appellants in the claim petition was Rs.25,000/-. Considering the nature of the educational qualification of the deceased and the remittance of the amounts reflected in Ext.A5 are taken into consideration, I am of the view that, the monthly income of Rs.25,000/- was a probable income and hence I deem it appropriate to accept the same. 9. As the deceased was aged 41 at the time of the accident, 25% of the monthly income has to be added towards future prospects and while reassessing the compensation with the M.A.C.A. No.2012/2013 : 7 : above criteria, the said amount would come to Rs.39,37,500/[(25000+25%)x12x14x3/4]. The amount already awarded by the tribunal was Rs.12,60,000/- and thus the total additional compensation would come to Rs.26,77,500/-. 10. In addition to the above, the appellants are entitled to compensation under the head of loss of consortium as well. The tribunal awarded only an amount of Rs.10,000/- under this head and a further amount of Rs.10,000/- under the head of loss of love and affection. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130], and United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [ 2020 (3) KHC 760]** all the appellants, being wife, mother and children are entitled for Rs.40,000/- each, under the said head thereby making out a total sum of Rs.2 lakhs. Since it was observed in **Satinder Kaur** that when compensation for loss of consortium is awarded, no further amounts need to be granted for loss of love and affection, the amount of Rs.10,000/- under that head is to be adjusted against the total amount fixed by this Court towards loss of consortium. 11. At this juncture, the learned counsel for the insurance M.A.C.A. No.2012/2013 : 8 : company pointed out that, the 5[th] claimant was not born as on the date of the accident. Therefore, the learned counsel for the insurance company pointed out that, the compensation for loss of consortium cannot be granted to the 5[th] respondent. However, I am not inclined to accept the said contention. Ofcourse it is true that, as far as the 5[th] claimant is concerned, she was in the womb at the time of the death of the deceased. However, that cannot be a reason to deny compensation for loss of consortium to her. The fact that the 5[th] respondent was denied the love, care and companionship of the deceased since the date of her birth, is a crucial aspect which cannot be ignored while calculating the compensation. Therefore, I am not inclined to accept the said contention. 12. Thus the additional compensation receivable by the appellant after adjusting the amount already awarded by the tribunal for loss of consortium and loss of love and affection would come to Rs.1,80,000/-. 13. The tribunal awarded only Rs.5,000/- under the head of loss of estate whereas the proper amount was Rs.15,000/under the said head. Thus a further sum of Rs.10,000/- is M.A.C.A. No.2012/2013 : 9 : granted under this head. Similarly, towards the funeral expenses the amount awarded is only Rs.4,000/- whereas it is Rs.15,000/as per **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680]. Thus a further sum of Rs.11,000/- is granted under this head. 14. Another head which requires consideration is the pain and suffering of the deceased. It is evident that the accident occurred on 14.02.2010, and consequent to the injuries sustained, he was undergoing treatment in the hospital until he died on 03.03.2010. Considering the nature of injuries sustained and the treatment the deceased had availed, I deem it appropriate to grant an amount of Rs.20,000/- towards pain and sufferings. However, in this regard also, the learned counsel for the insurance company raised an objection to the effect that, since the claim for pain and sufferings is a personal injury suffered by the deceased, the same cannot be claimed by the legal heirs of the deceased, in the light of Section 306 of the Indian Succession Act. He also places reliance upon the decision rendered by the Hon’ble Supreme Court in **Oriental Insurance Company Ltd. v. Kahlon** [2022 (13) SCC 494]. However, the M.A.C.A. No.2012/2013 ## : 10 : crucial aspect to be noticed in this regard is that, as far as the said case is concerned, the observations made by the Hon’ble Supreme Court in the said decision cannot be made applicable to the claim petitions to be considered in the State of Kerala in view of the statutory stipulations contained in Kerala Torts (Miscellaneous Provisions Act), 1975. As per the provisions in the said Act, the operation of Section 306 of the Indian Succession Act was made inapplicable to the State of Kerala as far as the claim for tortious liabilities are concerned. Therefore, the decision relied on by the learned counsel for the insurance company cannot be made applicable to the case at hand. Since Section 2 of the said Act specifically provides that, the cause of action of personal injuries in respect of tortious liabilities would survive upon the legal heirs of the deceased, nothing would preclude this Court from granting compensation for personal injuries suffered by the deceased in this case, to the legal heirs. Therefore, the contention raised by the insurance company is rejected and an amount of Rs.20,000/- is awarded towards pain and sufferings of the deceased. 15. Yet another aspect to be noticed is that, the tribunal M.A.C.A. No.2012/2013 : 11 : did not award any amounts towards compensation for bystander expenses despite the fact that the deceased was under treatment for a period of 18 days after the date of the accident. Therefore, an amount of Rs.2,700/- which is calculated at the rate of 150/per day is awarded under the said head. In addition to that, Rs.1,000/- is awarded towards the transportation expenses and a further sum of Rs.500/- is granted towards loss of clothing and articles. 13. The next head relates to the medical expenses incurred. The tribunal did not award any compensation under the said head even though Rs.2,50,000/- was claimed under the said head. The reason for not awarding the compensation was that the appellants failed to produce the bills evidencing the expenses incurred in this regard. However, the appellants produced the original of the bills along with I.A. No.3/2013 and the said I.A. has already been allowed by this Court accepting the said documents into the file. The Learned Counsel for the 3[rd] respondentInsurance Company after verifying the said bills raised certain objections to some of the bills which were produced as Annexures A1-18, A1-28,A1-27, A1-56, A1-71, A1-84 and A1-85. M.A.C.A. No.2012/2013 : 12 : 14. After considering the objections, the same was found to be sustainable, as some of the bills do not contain the proper acknowledgment. As far as A-84 and A-85 are concerned the same are advance payments which were adjusted in the other bills. Therefore, amounts covered as per the said bills are deducted, and accordingly, the total amount payable towards medical expenses is found to be Rs.2,22,021/-. Thus the total additional compensation would come to Rs 31,24,721/-(Rupees thirty one lakhs twenty four thousand, seven hundred and twenty one only) (26,77,500 +1,80,000 +10,000+11,000+ 20,000+ 2500+ 1000+ 500 + 2,22,021) in which the amount of Rs. 2,22,021/shall carry interest as ordered above, from the date of filing of I.A No.3/2013 that was on 25.02.2013. During the pendency of the appeal, the 2[nd] appellant died and as per order in I.A No.1/2023, the appellants 6 to 8 were impleaded as the additional appellants. In the affidavit filed along with the said I.A, which was sworn by the additional 8[th] appellant on behalf of the additional 6[th] and 7[th] appellants, it was averred that, they have no objection in granting the compensation payable to the deceased 2[nd] appellant to the appellants 1, 3 to 5. Therefore, it is ordered that, the share of M.A.C.A. No.2012/2013 : 13 : compensation payable to the 2[nd] appellant shall be paid to the appellants 1, 3 to 5 equally. In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 06.11.2012 passed by the Motor Accident Claims Tribunal, Tirur in OP(MAC) No.154/2011 is modified by awarding a further amount of Rs 31,24,721/-(Rupees thirty one lakhs twenty four thousand, seven hundred and twenty one only) . Out of the said amount Rs. 29,01,700 (Rupee twenty nine lakhs, two thousand and seven hundred only) shall carry interest at the rate of 8% per annum from the date of petition till realisation and Rs 2,22,021/- (Rupees two lakhs twenty two thousand and twenty one only) shall carry interest at the rate as referred to above from the date of filing of I.A No.3/2013 that was on 25.02.2013. The appellants shall be entitled to get the proportionate costs also. The said amount shall be deposited by the 3[rd] respondent within a period of three months from the date of receipt of the copy of this judgment. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd/asw ## M.A.C.A. No.2012/2013 : 14 : ## **ANNEXURE** ANNEXURE A1 ORIGINAL MEDICAL BILLS