Sulaiqa Beevi and others v. The New India Assurance Co. Ltd. and National Insurance Co. Ltd and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 20[TH] DAY OF JULY 2021 / 29TH ASHADHA, 1943** **MACA NO. 2080 OF 2010** **AGAINST THE AWARD DATED 22.01.2010 IN O.P.(MV)NO.333/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY, KANNUR** ## **APPELLANTS/PETITIONERS:** **1 SULAIKA BEEVI, 55 YEARS, W/O.LATE NEDUMANNIL KASIM, MOONUKULIL HOUSE, CHOORAPADAVU, P.O.PRAPOYIL, CHERUPUZHA(VIA). 2 RAHIM.N, AGED 28 YEARS, S/O.LATE NEDUMANNIL KASIM, MOONUKILIL HOUSE, CHOORAPADAV, P.O.PRAPOYIL, CHERUPUZHA(VIA).** **3 SOUDA BEEVI, 25 YEARS D/O.LATE NEDUMANNIL KASIM, MOONUKULIL HOUSE, CHOORAPADAVU, P.O.PROPOYIL, CHERUPUZHA(VIA).** **4 RASHEED.N, 23 YEARS, S/O.LATE NEDUMANNIL, KASIM,MOONUKILIL HOUSE, CHOORAPADAVU,, P.O.PRAPOYIL, CHERUPUZHA(VIA).** **BY ADV SRI.M.V.AMARESAN** ## **RESPONDENTS/RESPONDENT NO.3,6 AND 7 TO 19:** - **1 THE NEW INDIA ASSURANCE CO. LTD., PATHANAMTHITTA. PIN-689645.** **2 NATIONAL INSURANCE CO.LTD PAYYANNUR, PIN-670307.** M.A.C.A.No.2080/2010 -:2:- - **3 ALIYAR KUTTY NEDUMANNIL(DIED), 62 YEARS, S/O.MARIAM BEEVI, CHERUPUZHA.P.O. PIN-670511** - **4 AYISHA BEEVI NEDUMANNIL, 60 YEARS, D/O.MARIAM BEEV, CHERUPUZHA.P.O. PIN-670511.** - **5 JAMEELA BEEVI NEDUMANNIL, 60 YEARS, D/O.MARIAM BEEVI, CHERUPUZHA.P.O. PIN-670511** - **6 YOUSUF NEDUMANNIL, 56 YEARS, S/O.MARIAM BEEVI, KAKKAYAMCHAL, CHERUPUZHA.P.O. PIN-670511** - **7 SHAHUL HAMEED NEDUMANNIL, AGED 54 YEARS, S/O MARIAM BEEVI, PANDIKADAVU PO, CHERUPUZHA PO PIN-670511** ***8 KUNUMON NEDUMANNIL,(DELETED) AGED 54 YEARS, S/O. MARIAM BEEVI, PANDIKKADAVU P.O., CHERUPUZHA P.O. PIN- 670 511** ***9 NAZAR NEDUMANNIL,(DELETED) AGED 50 YEARS, S/O. MARIAM BEEVI, PANDIKKADAVU P.O, CHERUPUZHA P.O. PIN - 670 511** ***10 SALIM NEDUMANNIL,(DELETED) AGED 48 YEARS, S/O. MARIAM BEEVI, P.O. KARTHIKAPURAM, VIA ALAKODA PIN- 670 515,** M.A.C.A.No.2080/2010 -:3:- - **11 RAHEEMA NEDUMANNIL, AGED 56 YEARS, W/O. ISMAIL P.O., PRAPOYIL, PIN - 670 511.** - **12 SHAJI NEDUMANNIL, AGED 56 YEARS, S/O. ISMAIL P.O. PRAPOYIL PIN - 670 511.** - **13 NAZEER NEDUMANNIL, AGED 34 YEARS, S/O. ISMAIL P.O. PRAPOYIL, PIN - 670 511.** - **14 SOFIYA NEDUMANNIL, AGED 33 YEARS, D/O. ISMAIL, P.O. PRAPOYIL PIN - 670 511.** - ***15 RAZEENA NEDUMANNIL,(DELETED) AGED 30 YEARS D/O. ISMAIL , P.O. PRAPOYIL PIN - 670 511.** **RESPONDENTS 8,9 10 AND 15 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 12.03.2021 IN I.A.NO.1/2021 IN MACA NO.2080/2010** **BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2080/2010 -:4:- Dated this the 20[th] day of July,2021 ## **J U D G M E N T** The appellants were the petitioners in O.P (MV) No.333/2002 on the file of the Motor Accidents Claims Tribunal,Thalassery. The respondents in the appeal were respondent Nos.3, 6 and 7 to 19 before the Tribunal. This Court by order dated 12.03.2021 in I.A.No.1/2021 deleted the respondent Nos.8, 9, 10 and 15 from the party array at the risk of the appellants. Thus, the parties are for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of 'Nedumannil Kasim'(deceased)-the husband of the first petitioner and the father of the petitioners 2 to 4. The petitioners have averred in the claim petition that on 05.09.2001, while the deceased was travelling in a M.A.C.A.No.2080/2010 -:5:- jeep bearing registration No.KL-13B-2599 from Payyannur to Cherupuzha, a bus bearing registration No.KL-13A-3333(offending vehicle) came from the opposite side and hit the jeep. The deceased was thrown out of the jeep and sustained grievous injuries, including fracture on the cervical spine and other injuries. The deceased succumbed to his injuries on 13.11.2001. The deceased was a fishmonger by profession and earning a daily income of Rs.200/-. The accident occurred on account of the negligence on the part of the drivers of both the vehicles. Therefore, the respondents were jointly and severally liable to pay compensation to the petitioners, which they quantified at Rs.5,24,000/-; but limited to Rs.4,00,000/-. 3. Another fellow passenger in the jeep had filed O.P.(MV)No.243/2002 claiming compensation on account of the injuries sustained to him in the accident. 4. The third respondent/Insurance company, the M.A.C.A.No.2080/2010 -:6:- insurer of the jeep, filed a written statement admitting that the jeep had a valid insurance coverage. However, it disputed its liability on the ground that the documents pertaining to the vehicle were not produced. It was also contended that as the accident occurred on account of the collision between two vehicles, there was contributory negligence on the part of the driver of the offending vehicle. 5. The sixth respondent filed a written statement admitting that the offending vehicle had a valid insurance coverage. They disputed that there was contributory negligence on the part of the offending vehicle in causing the accident. It is contended that as per the charge-sheet, the accident occurred on account of the negligence of the driver of the jeep. Hence, they may be exonerated from payment of compensation. The other respondents did not contest the proceedings. 6. The Tribunal consolidated and jointly tried M.A.C.A.No.2080/2010 -:7:- the original petitions. Two witnesses were examined on the side of the petitioners in both the claim petitions and Exts.A1 to A21 series were marked through them in evidence. Respondents produced and marked Exts.B1 to B4 in evidence. Disability certificate of the claimant in O.P.(MV)No.243/2002 was marked as Ext.X1. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition filed by the petitioners holding that there was negligence on the part of the respondent Nos.2 and 5, the drivers of both the vehicles and, therefore, the owners of the vehicles namely; respondent Nos.1 and 6 were jointly and severally liable to pay compensation to the petitioners and the respondent Nos.3 and 6 being the insurers of the vehicles were liable to indemnify the owners of their liability. Accordingly, the Tribunal permitted the petitioners to realise an amount of Rs.3,09,250/- from respondent Nos.3 and 6 M.A.C.A.No.2080/2010 -:8:- along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 9. Heard the learned counsel appearing for the appellants/petitioners and the learned counsel appearing for the second respondent/third respondent-Insurance Company. 10. The sole question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 11. The second respondent produced Ext.B4 charge-sheet and Ext.B3 scene mahazar to substantiate the contention that the accident occurred on account of the negligence on the part of the second respondent, the driver of the jeep. 12. The Tribunal, after analysing the pleadings M.A.C.A.No.2080/2010 -:9:- and materials on record and the oral testimonies of PWs.1 and 2, arrived at a conclusion that the accident occurred on account of the negligence of the respondent Nos.2 and 5 namely; the drivers of the jeep and the bus. Accordingly, the Tribunal fixed the composite negligence at 50% on the part of both the drivers and fixed the liability on the Insurance Company of both the vehicles to pay the compensation amount. I find that the Tribunal has evaluated the evidence in a threadbare manner and arrived at the said conclusion, which is justifiable and correct. I do not find any scope for interference in the fact finding exercise undertaken by the Tribunal. 13. Accordingly, I move on to the next question; i.e., the payment of reasonable and just compensation. ## **Notional income:** 14. The petitioners had claimed that the deceased was a fishmonger by profession and earning a monthly income of Rs.6,000/-. The Tribunal has fixed M.A.C.A.No.2080/2010 -:10:- the notional income of the deceased at Rs.2,500/- per month. 15. In **Ramachandrappa 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. 16. Following the ratio in the afore-cited decision and considering the fact that the deceased lost his life in the year 2001, I am of the considered opinion that the deceased's notional income can safely be fixed at 3,000/- per month as claimed in the claim petition. Hence, I fix the notional income of the deceased at Rs.3,000/- per month. ## **Multiplier** 17. The deceased was aged 49 years at the time of his death on 13.11.2001. In the light of the law laid down in **Sarala Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT M.A.C.A.No.2080/2010 -:11:- 802 (SC)],the multiplier fixed by the Tribunal at '13' is correct. ## **Personal living expenses of the deceased** 18. It is on record that the petitioners were the wife and children of the deceased. Although it is contended before this Court that the petitioners 2 to 4 have attained majority, I find that they were only aged 28, 25 and 23 years respectively. 19. Undisputably, the deceased was the breadwinner of the family and even though the petitioners 2 to 4 have now attained majority, certainly, they were depending on the income of the deceased for their upbringing and livelihood. Hence, I am of the definite opinion that only ¼[th] of the compensation under the head 'loss of dependency' has to be deducted towards the personal living expenses of the deceased, considering the large family that the deceased was maintaining. 20. Therefore, I deduct ¼[th] of the compensation M.A.C.A.No.2080/2010 -:12:- under the head 'loss of dependency' towards the personal living expenses of the deceased. Future prospects: 21. In **Sarla Verma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], the Hon'ble Supreme Court has held that the dependants of the deceased are also entitled for future prospects. As the deceased was aged 49 years and the multiplier being '13', the petitioners are entitled for an additional amount of 25% of compensation for 'loss of dependency' towards future prospects. ## **Loss due to dependency:** 22. Taking into account the above factors, i.e, the notional income of the deceased at Rs.3,000, the multiplier at 13, future prospects at 25% and ¼[th] of the total compensation to be deducted under the head 'loss of dependency' towards personal living expenses of the deceased, I re-fix the compensation under the M.A.C.A.No.2080/2010 -:13:- head 'loss of dependency' at Rs.4,38,750/- instead of Rs.2,60,000/- awarded by the Tribunal. ## **Conventional heads of compensation:** 23. 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. 24. In such circumstances, I enhance the compensation under the head 'funeral expenses' by a further amount of Rs.5,000/ i.e., total amount of Rs.15,000/- and award an amount of Rs.15,000/- under the head 'loss of estate'. 25. Even though the petitioners are the wife and children of the deceased, I hold that only the first petitioner is entitled for spousal consortium at Rs.40,000/-, because the petitioners 2 to 4 have M.A.C.A.No.2080/2010 -:14:- attained majority and are now leading independent lives. Thus, I award an amount of Rs.40,000/- as 'loss of consortium' to the first petitioner. 26. It is seen that the Tribunal has awarded an amount of Rs.15,000/- under the head 'loss of love and affection' to the petitioners. 27. This Court in **Kunjandy.L and others v. Rajendran and Others** [2020 (2) KLT 315], has held that if compensation is awarded under the head 'loss of consortium', no compensation can be awarded under the head 'loss of love and affection', as it would amount to duplication of payment of compensation. Hence, I set aside the amount of Rs.15,000/- awarded under the head 'loss of love and affection'. 28. With respect to the amount of compensation paid under the heads 'medical expenses' and 'ambulance charges', I find the same to be reasonable and just, which I confirmed. 29. On an overall re-appreciation of the pleadings M.A.C.A.No.2080/2010 -:15:- and materials on record and the law laid down 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. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Transport|2,450|2,450| |2|Funeral expenses|10,000|15,000| |3|Loss of love and<br>affection|15,000|-| |4|Loss of consortium<br>to<br>the<br>first<br>appellant|5,000|40,000| |5|Medical expense|16,800|16,800| |6|Loss<br>due<br>to<br>dependency|2,60,000|4,38,750| ||**Total**|**3,09,250**|**5,13,000**| 30. Although the appellants had only claimed an amount of Rs.4,00,000/- as compensation, the law laid M.A.C.A.No.2080/2010 -:16:- down by the Hon'ble Supreme Court in **Nagappa v. Gurudayal Singh** [2003(1) KLT 115 (SC)] that there is no restriction in the courts more awarding compensation than what is claimed in the claim petition because just compensation is to be awarded, I allow the appeal by fixing the compensation at Rs.5,13,000/- i.e., an enhancement of Rs.2,03,750/-. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.2,03,750/with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, after excluding the period of 116 days, i.e, the period of delay in preferring this appeal and as directed by this Court on 12.03.2021 in C.M.Appln.No.2700/2010, and proportionate costs. The respondents 1 and 2/respondents 3 and 6-Insurance companies are directed to pay the enhanced compensation with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of M.A.C.A.No.2080/2010 -:17:- this judgment. The enhanced compensation shall be disbursed to the appellants/petitioners in equal shares and in accordance with law. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge