Suhara and others v. A. Sheik Abdul Karim (Deleted) and Rajan and The New India Assurance Co. Ltd. (MACA No. 1946 of 2009)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 25[TH] DAY OF AUGUST 2021 / 3RD BHADRA, 1943 MACA NO. 1946 OF 2009** **AGAINST THE AWARD DATED 06.04.2009 IN OP(MV)NO.3377/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANTS/PETITIONERS:** - **1 SUHARA, W/O LATE K P KOYA,** **KUNNUMPURATHU HOUSE,EZHUMANGAD, P.O.ARANGOTTUKARA, PALAKKAD DISTRICT.** - **2 JASEENA K.P, D/O.LATE K.P.KOYA -DO- -DO-** - **3 RASEENA K.P., D/O.LATE K.P.KOYA, DO- -DO-** - **4 SHAFEEK K.P., S/O.LATE K.P.KOYA DO- -DO-** **5 BEEVIKUTTY, D/O. LATE MOHAMMEDALI (SISTER OF LATE K.P.KOYA), -DO- -DO-** - **6 NABEESA,** **D/O.LATE MOHAMMEDALI (SISTER OF LATE K.P.KOYA), -DO- -DO-** **7 BASHEER, S/O.LATE KUNJEERA, KUNNUMPURATH HOUSE, EZHUMANGAD, P.O.ARANGOTTUKARA, PALAKKAD DISTRICT,(BROTHER OF LATE K.P.KOYA).** **BY ADV SRI.P.V.CHANDRA MOHAN** M.A.C.A.No.1946/2009 -:2:- ## **RESPONDENTS/RESPONDENTS:** **1 A.SHEIK ABDUL KARIM (DELETED) BALRAMA, PULIPARAMBIL LANE, KANATTUKARA, THRISSUR DISTRICT.** **2 RAJAN, S/O.GANAPATHY, KUNDANVEETTIL HOUSE, KERALADHEESWARAPURAM, THANALOOR,TIROOR, MALAPPURAM DISTRICT.** **3 THE NEW INDIA ASSURANCE CO.LTD., EAST COAST CHAMBERS,IST FLOOR,92, G.M.CHETTY ROAD,T.NAGAR,CHENNAI.** **RESPONDENT NO. 1 DELETED** **RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER THE ORDER DATED 17/3/2021 IN I.A.NO. 1/2021 IN MACA 1946/2009.** ## **BY ADV T.C.SOWMIAVATHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1946/2009 -:3:- Dated this the 25[th] day of August, 2021 ## **J U D G M E N T** The appellants were the petitioners in O.P. (MV) No.3377/2003 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents 2 and 3 before the Tribunal. Even though the appellants had impleaded the first respondent before the Tribunal as the first respondent in the appeal, pursuant to the order dated 17.03.2021 of this Court in I.A.No.1/2021, the first respondent was deleted from the party array. Therefore, the parties are for the sake of convenience, wherever the context requires, referred to as per their status in the claim petition before the Tribunal. 2. The petitioners had filed the claim petition M.A.C.A.No.1946/2009 -:4:- under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the death of 'K.P. Koya'(deceased), the husband of the first petitioner, the father of the petitioners 2 to 4 and the brother of the petitioners 5 to 7. The petitioners had averred in the claim petition that on 13.12.2002, while the deceased was travelling as a pillion rider on a motorcycle bearing registration No.KL-9D/5705 ridden by 'Moidutty' through the Thrissur-Kunnamkulam public road, when the vehicle reached Kanipayuur near Unity Hospital, a bus bearing registration No.KL-8/R 9258(bus) came from the opposite direction, driven by the second respondent in a rash and negligent manner, hit against the motorcycle. In the accident, both the rider and the pillion rider (Moidutty and Koya) succumbed to fatal injuries. The accident occurred solely due to the negligence of the second respondent. The bus was owned by the first M.A.C.A.No.1946/2009 -:5:- respondent and insured with the third respondent. The petitioners were dependants of the deceased. The deceased was a headload worker by profession and earning a monthly income of Rs.9,000/-. Hence, the petitioners claimed an amount of Rs.11,86,250/- as compensation from the respondents. 3. The legal representatives of Moidutty also filed O.P.(MV)No.3378/2003 against the respondents before the same Tribunal, seeking compensation. 4. The respondent Nos.1 and 2 did not contest the proceedings. 5. The third respondent - the insurer of the bus - filed written statements in both the claim petitions, _inter alia,_ contending that the accident was caused due to the negligent riding of the motorcycle by Moidutty. It was also contended that the compensation claimed was excessive and exorbitant. Hence, the third respondent prayed that the claim petitions be M.A.C.A.No.1946/2009 -:6:- dismissed. 6. The Tribunal consolidated and jointly tried both the original petitions. The employer of the deceased was examined as PW1 and the wife of Moidutty was examined as PW2 and Exts.A1 to A15 were marked in evidence. The respondents did not let in any contra evidence. 7. The Tribunal by its common award allowed claim petition filed by the petitioners permitting them to realise an amount of Rs.4,11,500/- from the third respondent with interest and costs. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard; Sri. P.V. Chandra Mohan, the learned counsel appearing for the appellants/petitioners and Smt. T.C. Sowmiavathy, the learned counsel appearing M.A.C.A.No.1946/2009 -:7:- for the second respondent in the appeal/insurer. 10. The question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 11. Ext.A5 charge-sheet filed by the Kunnamkulam Police in Crime No.781/2002 proves that the accident occurred solely due to the negligence of the second respondent. Admittedly, the first respondent was the owner and the third respondent was insurer of the bus. Therefore, the third respondent is liable to indemnify the first respondent of his liability to pay the compensation amount. 12. The principal area of dispute in the appeal is with regard to the fixation of the notional income of the deceased. 13. The petitioners had categorically pleaded in the claim petition that the deceased was a loading and unloading worker and earning a monthly income of M.A.C.A.No.1946/2009 -:8:- Rs.9,000/-. The petitioners produced Ext.A8 salary certificate, which was proved through PW1. They also produced Ext.A7 identity card to substantiate that the deceased was a headload worker. Nevertheless, the Tribunal for the reason that the petitioners had not produced additional materials containing the actual monthly income of the deceased from January to December, fixed the notional income of the deceased at Rs.3000/-. 14. Ext.A8 salary certificate proves beyond any semblance of doubt that the deceased had earned an amount of Rs.9000/-. This document is corroborated by the oral testimony of PW1, the Secretary of Ottapalam Taluk Headload and General Workers Union. The Tribunal has not adverted to the oral testimony of PW1 read with Ext.A8 certificate, instead discarded the oral testimony and document on the cavil reason that other materials to prove the actual income for the month M.A.C.A.No.1946/2009 -:9:- from January to December were not produced. According to me, the course adopted by the Tribunal is erroneous and wrong. 15. In the light of the fact that there was no contra evidence let in by the respondents to discredit the uncontroverted oral testimony of PW1 read with Ext.A8 salary certificate, the Tribunal ought to have accepted the income shown in Ext.A8 salary certificate on its face value. Nevertheless, the total income shown in the said certificate is Rs.9000/- per month. As the deceased was a headload worker, he could have worked only for 25 days a month. Similarly, going by the law laid down in _**Kalpanaraj & Ors. v. Tamil Nadu State Transport Corporation**_ [(2015) 2 SCC 764], only the net income, after deducting the taxable amount can be taken in account for the purpose of income of the deceased. 16. In such circumstances, after deducting the M.A.C.A.No.1946/2009 -:10:- income tax payable on Rs.9,000/- and taking into account that the deceased could have worked only for 25 days a month, I am of the firm opinion that the deceased's net income can safely be fixed at Rs.6700/per month. 17. The deceased was aged 42 years at the time of his death. In the light of the law laid down in _**Sarla Varma and others v. Delhi Transport Corporation and others**_ [(2010) 2 KLT 802 (SC)], the relevant multiplier is '14'. ## **Dependants of the deceased:** 18. Even though the petitioners who are seven in number, had claimed to be the dependants of the deceased, there is no material to prove that the petitioners 5 to 7, the siblings of the deceased, were dependent on him. Going by the cause title, it is seen that the petitioners 5 to 7 were all above 35 years of age. Therefore, without sufficient materials on record, M.A.C.A.No.1946/2009 -:11:- it is difficult to accept that they were depending on the deceased for their livelihood. 19. Therefore, I only accept that the petitioners 1 to 4 i.e., the wife and children of the deceased as his dependants. Accordingly, I deduct ¼[th] of the total compensation as laid down in _**Sarla Verma**_ (supra) and _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662(SC)] towards the personal living expenses of the deceased. ## **Future prospects:** 20. Following the ratio in _**Sarla Verma**_ and _**Pranay Sethi**_ (supra) and considering that the deceased was aged 42 years on the date of his death, the petitioners 1 to 4 are also entitled for future prospects at 25% on the compensation for 'loss of dependency'. M.A.C.A.No.1946/2009 -:12:- ## **Loss due to dependency:** 21. Taking into account the above-mentioned factors, that is the monthly income of the deceased at Rs.6,700/-, the 'multiplier' at '14', 'future prospects' at Rs.25% and deducting ¼[th] of the compensation for 'loss of dependency' towards the personal living expenses of the deceased, I re-fix the compensation for 'loss of dependency' for the petitioners 1 to 4 at Rs.10,55,250/- instead of Rs.3,60,000/- fixed by the Tribunal. ## **Conventional heads of compensation:** 22. In clause (viii) of paragraph 61 of _**Pranay Sethi**_ (supra), the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for compensation under the conventional heads namely, 'funeral expenses', 'loss of estate' and 'loss of consortium' at Rs.15,000/-, Rs.15,000/- and Rs.40,000/-, respectively. M.A.C.A.No.1946/2009 -:13:- 23. In the instant case, the Tribunal has only awarded an amount of Rs.5,000/- towards 'funeral expenses', Rs.10,000/- towards 'loss of estate' and Rs.15,000/- towards 'loss of consortium'. Therefore, following the ratio in _**Pranay Sethi**_ (supra), I enhance the compensation under the heads 'funeral expenses' by a further amount of Rs.10,000/-, 'loss of estate' by a further amount of Rs.5,000/- and 'loss of consortium' by a further amount of Rs.1,45,000/- i.e., Rs.40,000/each to the petitioners 1 to 4. ## **Loss of love and affection and pain and sufferings:** 24. It is seen that the Tribunal has awarded an amount of Rs.10,000/- each under the heads 'pain and sufferings' and 'loss of love and affection'. 25. In _**New India Assurance Company Ltd. v. Somwati & Ors.**_ [2020(9)SCC 644], the Hon'ble Supreme Court has held that once compensation under M.A.C.A.No.1946/2009 -:14:- the head 'loss of consortium' is awarded, no amount can be awarded under the head 'loss of love and affection', as it is amount to duplication of compensation. Similarly, _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and Others**_ [2020(3)KHC 760], the Hon'ble Supreme Court has held that in the case of death, no amount can be awarded under the head 'pain and sufferings'. Accordingly, I set aside the amount of Rs.20,000/awarded under the above two heads. 26. With respect to the compensation awarded under the head 'transportation' and 'damage to clothing', I find the same to be reasonable and just. 27. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the appellants 1 to 4/petitioners 1 to 4 are entitled for enhancement of compensation as M.A.C.A.No.1946/2009 -:15:- modified and recalculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal<br>(in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Transport|1,000|1,000| |2|Clothing|500|500| |3|Funeral expenses|5,000|15,000| |4|Pain and sufferings|10,000|Nil| |5|Loss of love and<br>affection|10,000|Nil| |6|Loss of estate|10,000|15,000| |7|Loss of consortium|15,000|1,60,000| |8|Loss<br>of<br>dependency|3,60,000|10,55,250| |**Total**||**4,11,500**|**12,46,750**| 24. Even though the petitioners had claimed only an amount of Rs.11,86,250/-, following the ratio in _**Sarla Verma**_ and _**Pranay Sethi**_ (supra), I have re-fixed the compensation which is just and reasonable and in excess of the amount that was claimed in the claim petition. Nevertheless, in _**Nagappa v.**_ M.A.C.A.No.1946/2009 -:16:- _**Gurudayal Singh**_ [2003(1) KLT 115 (SC)] and _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)] the Hon'ble Supreme Court has held that there is no restriction in awarding more compensation than that is awarded in the claim petition. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of **Rs.8,35,250/-** with interest on the enhanced compensation at the rate of 6% per annum from the date of petition till the date of deposit and costs of Rs.5,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and costs within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellants 1 to 4/petitioners 1 to 4 in the ratio of 40:20:20:20 and in accordance with law, after deducting their liability, if M.A.C.A.No.1946/2009 -:17:- any, towards payment of court fee. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge