Suharabi and others v. P. Ashraf and others and United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 23[RD] DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943 MACA NO. 1686 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1871/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE, KOZHIKODE** ## **APPELLANT/S:** 1 SUHARABI, W/O.(LATE)MAMUKOYA AGED 60 YEARS, SAREENA NIVAS,, ARTS COLLEGE P.O. VATTAKINAR, MEENACHANDA,, KOZHIKODE. 2 T.P. MUHAMMED SALEEM SO. LATE MAMUKOYA, AGED 41 YEARS, SAREENA NIVAS,, ARTS COLLEGE P.O. VATTAKINAR, MEENCHANDA,, KOZHIKODE. 3 T.P. MOOSA MANZOOR SO LATE MAMUKOYA AGED 39 YEARS, SAREENA NIVAS, ARTS COLLEGE P.O., VATTAKINAR, MEENCHANDA, KOZHIKODE. 4 NAZEEMA WO. ABDUL AZEEZ AGED 35 SAREENA NIVAS, ARTS COLLEGE P.O., VATTAKINAR, MEENCHANDA, KOZHIKODE. 5 BICHUKOYA T.P. LATE MAMUKOYA AGED 35 YARS, SAREENA NIVAS, ARTS, COLLEGE P.O. VATTAKINAR, MEENCHANDA, KOZHIKODE. MACA NO. 1686 OF 2009 2 6 NOUSHAD T.P. LATE MAMUKOYA AGED 30 SAREENA NIVAS, ARTS COLLEGE P.O., VATTAKINAR, MEENCHANDA, KOZHIKODE. BY ADV SMT.K.V.RESHMI ## **RESPONDENT/S:** 1 P.ASHRAF, S/O.SHOUKKATHALI YARS, KADEEJA MANZIL, PALAKEEL HOUSE,, P.O. ANJARAKANDY, KALLAI, KANNUR 2 SHAMEEV K. SO. BALAN.V. AGED 31 YEARS PUNATHANADATH HOUSE, P.O. PALAYAD,, P.O. PALAYAD, ANDALLOOR, KANNUR. 3 UNITED INDIA INSURANCE CO.LTD. P.B. NO.97, ASHEEQUA TOWERS,, NADAPURAM, THALASSERY. BY ADV P.K.MANOJKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1686 OF 2009 3 ## **`JUDGMENT`** ``` The appellants were the petitioners in OP(M.V) No. 1871 of 2003 on the file of Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. ``` ``` 2. The appellants had filed the claim petition under section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of death of Mamukoya (deceased), the husband of the first appellant and the father of the appellant Nos. 2 to 6. It was their case that on 11.07.2003, while the deceased was walking along the Meenchantha - Vattakinar Road, a mini lorry bearing Registration No. KL- 12/1247 (lorry), coming from the Meenchantha side at an exorbitant speed, hit the deceased. The deceased sustained serious injuries and was taken to the Medical College Hospital, Kozhikode, where he lost his life on the same day. The accident occurred due to the rash and negligent driving of the lorry by the second respondent. The first respondent ``` MACA NO. 1686 OF 2009 4 ``` was the owner and the third respondent was the insurer of the lorry. The deceased was a real estate broker by profession and earning a monthly income of Rs. 12,000/-. The appellants were the dependants of the deceased. They claim a compensation of Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand Only) from the respondents. ``` `3. The respondents Nos. 1 and 2 had filed a joint` `written statement admitting the ownership as well as the accident. The third respondent filed a written statement admitting that the lorry have a valid insurance coverage. However, it was contended that the quantum of compensation claimed by the appellants was excessive.` ``` 4. The appellants produced and marked Exhibits A1 and A2 in evidence. The respondents did not let in any evidence. ``` `5. The Tribunal, after appreciating the pleadings and` `materials on records allowed the claim petition in part, by permitting the appellants to realise an amount of Rs.` MACA NO. 1686 OF 2009 5 ``` 68,000/- (Rupees Sixty Eight Thousand Only) with interest at the rate of 7.5% per annum from 30.07.2003 till the date of realisation and a cost of Rs.1,000/- from the third respondent. ``` `6. Dissatisfied with the quantum of compensation` `awarded by the Tribunal, the appellants/petitioners are in the appeal.` `7. Heard; Smt. K.V. Rashmi, the learned counsel` `appearing for the appellants/petitioners and Sri. P.K. Manoj Kumar, the learned counsel appearing for the third respondent/Insurer.` `8. The sole question that emerges for consideration in` `the appeal is:- “whether the quantum of compensation awarded by the Tribunal is reasonable and just?”` ## **`- Negligence and Liability:`** `9. It is undisputed that the accident occurred due to` `the negligence of the first respondent. Admittedly, the` MACA NO. 1686 OF 2009 6 ``` second respondent was the owner and the third respondent was the insurer of the lorry. The third respondent has not alleged that the second respondent has violated the policy conditions. Therefore, the third respondent is to indemnify the liability of the second respondent. ``` ## **`- Income of the deceased:`** ``` 10. The appellants had claimed that the deceased was a Real Estate Broker and earning a monthly income of Rs.12,000/-. They did not produce any material to substantiate their contention. The Tribunal fixed the notional income of the deceased at Rs.1,250/- per month. ``` ``` 11. InRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a Coolie worker in the year 2004 at Rs.4,500/- per month. ``` ``` 12. Following the benchmark in the aforesaid decision and taking into account that the accident occurred in the ``` MACA NO. 1686 OF 2009 7 ``` year 2003, I am of the opinion that the notional income of the deceased can safely be fix at Rs.4,000/- per month. ``` ## **`- Multiplier:`** ``` 13. Even though the appellants had stated that the deceased was aged 59 years at the time of accident, they did not produce any material to substantiate the age of the deceased. Exhibit A1, postmortem certificate proves that the deceased was aged 64 years at the time of the accident. Hence, the age of the deceased is taken as '64' as on the date of accident/death. ``` ``` 14. In the said circumstances, the relevant multiplier to be adopted is '7' as laid down in Sarla Varma and others v. Delhi Transport Corporation and others [(2010) 2 KLT 802 (SC)]. ``` ## **`- Dependents of the deceased:`** ``` 15. The appellants have stated in the claim petition that they are the wife and children of the deceased. In order to substantiate their contention, they had produced Exhibit ``` MACA NO. 1686 OF 2009 8 ``` A2 legal heir-ship certificate, which shows that they are the wife and children of the deceased. Therefore, I hold that the deceased was maintaining a large family. Accordingly, I deduct 1/4[th] of the compensation for loss of dependency towards the personal living expenses of the deceased. ``` ``` 16. The Hon'ble Supreme Court in Gujarat State Road Transport Corporation, Ahmedabad v. RamanbhaiPrabhatbhai, [1987 (3) SCC 234], has observed:- “that we should remember that in Indian families brothers, sisters and brothers, children and sometimes foster children live together and they are dependent upon the breadwinner of the family. And if the breadwinner is killed on account of a motor vehicle accident, there is no justification to deny compensation to all of them.” ``` ``` 17. Following the ratio in the aforesaid decision and taking note of the fact that Exhibit A2 legal heir-ship certificate proves that the appellants were all living in one family, I am of the opinion that the appellants were the ``` MACA NO. 1686 OF 2009 9 ``` dependants of the deceased. In such circumstances, I set aside the finding of the Tribunal that only the first appellant was dependent of the deceased. ``` ``` 18. Accordingly, I deduct only 1/4[th] of the compensation towards loss of dependency as the personal living expenses of the deceased, instead of 1/2 of the compensation. ``` ## **`- Loss due to dependancy:`** ``` 19. Taking into account the above mentioned factors, i.e., the monthly income of the deceased at Rs. 4,000/-, the multiplier at '7' and after deducting 1/4[th] of the compensation towards the personal living expenses of the deceased, I re-fix the compensation for loss of dependency at Rs. 2,52,000/- instead of Rs. 50,000/- awarded by the Tribunal. ``` ## **`- Conventional heads of compensation:`** ``` 20. 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 ``` MACA NO. 1686 OF 2009 10 ``` under the conventional heads namely, 'funeral expenses', 'loss of consortium' and 'loss of estate' at the rate of Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. ``` ``` 21. In the instant case, it is seen that the Tribunal has awarded only an amount of Rs.2,000/- towards 'funeral expenses' and Rs.10,000/- towards 'loss of consortium'. In the above circumstances, I enhance the compensation under the head 'funeral expenses' by a further amount of Rs.13,000/-. ``` ``` 22. As the appellants 2 to 6 were in the age group of 36 and 25, I hold that only the first appellant, the wife of the deceased is entitled for compensation for loss of consortium. Accordingly, I award an amount of Rs. 40,000/- i.e., an enhancement by an amount of Rs.30,000/- to the first appellant towards 'loss of consortium'. ``` ``` 23. Similarly, it is seen that the Tribunal has omitted to grant any amount under the head 'loss of estate'. Therefore I award an amount of Rs.15,000/- under the said head. ``` MACA NO. 1686 OF 2009 11 ## **`- Pain and suffering:`** ``` 24. The Tribunal has awarded an amount of Rs.5,000/- as compensation for 'pain and sufferings'.In Sarla Varma (supra) and 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 instantaneous death, no amount can be awarded under the head 'pain and sufferings'. Accordingly, I set aside the amounts of Rs. 5,000/- awarded under the head pain and sufferings. ``` ``` 25. With respect to the amount of Rs.1000/- awarded under the head transportation expenses, I find the same to be reasonable and just ``` ``` 26. 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/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. ``` MACA NO. 1686 OF 2009 12 |**`Sl.`**<br>**`No.`**|**`Head of claim`**|**`Amount`**<br>**`awarded by`**<br>**`Tribunal`**<br>**`(in Rs.)`**|**`Amount`**<br>**`modifed and`**<br>**`recalculated`**<br>**`by this Court`**<br>**`(in Rs.)`**|<br><br><br><br><br><br><br>| |---|---|---|---|---| |`1`|`Transportation to`<br>`hospital`|`1,000`|`1,000`|| |`2`|`Funeral expenses`|`2,000`|`15,000`|| |`3`|`Pain and sufferings`|`5,000`|`0`|| |`4`|`Loss of estate`|`0`|`15,000`|| |`5`|`Loss of consortium`|`10,000`|`40,000`|| |`6`|`Loss of dependancy`|`50,000`|`2,52,000`|| ||**`Total`**|**`68,000`**|**`3,23,000`**|| ``` 27. Even though the petitioners had claimed only an amount of Rs.1,50,000/-, 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. Gurudayal Singh [2003(1) KLT 115 (SC)]`** MACA NO. 1686 OF 2009 13 ``` 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 what is sought for in the claim petition. ``` ``` In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.2,55,000/- (Rupees Two Lakh Fifty Five Thousand Only) with interest on the enhanced compensation at the rate of 7.5% per annum from the date of petition till the date of deposit, after deducting interest for a period of 262 days, i.e., the period of delay in flng the appeal and as ordered by this Court on 04.08.2021 in C.M.Appl. No. 2/2009, and a cost of Rs.4,000/-. The 3[rd] respondent/insurer is ordered to deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and costs within a period of 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellants/petitioners in the ratio of 50:10:10:10:10:10 and ``` MACA NO. 1686 OF 2009 14 ``` in accordance with law, after deducting their liability, if any, towards payment of court fee. ``` ``` All pending interlocutory applications will stand closed. ``` ``` Sd/- ``` ``` C.S.DIAS JUDGE ``` ``` avs ```