Ummul Kulsu M.A. and others v. The New India Assurance Co. Ltd. and Ors

MACA NO. 1988 OF 2010 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943 MACA NO. 1988 OF 2010 AGAINST THE ORDER/JUDGMENT IN OPMV 1000/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY, KANNUR ## APPELLANT/S: - 1 UMMUL KULSU M.A., AGED 55 YEARS, D/O. ABDUL KHADER, W/O. LATE MOIDEENKUTTY. - 2 MUMTHAS M.A. AGED 36 YEARS D/O. LATE MOIDEENKUTTY - 3 HARIS M.A. AGED 31 YEARS SO. LATE MOIDEENKUTTY - 4 SAJIDA MOL M.A. AGED 24 YEARS D/O. LATE MOIDEENKUTTY - 5 VAHIDA M.A. AGED 22 YEARS DO. LATE MOIDEENKUTTY (ALL ARE RESIDING AT POOMANGALORATH HOUSE, P.O.PERINGOME, KANNUR DISTRICT) BY ADV SRI.M.V.AMARESAN ## RESPONDENT/S: - 1 THE NEW INDIA ASSURANCE CO.LTD. PAYYANNUR, KANNUR. PIN-670307 - 2 MOHAMMED ASHRAF M.A. AGED 27 YEARS S/O. LATE MOIDEENKUTTY, P.B.NO.30552,, BUDAYYA, BAHARIN, A.G. BY ADV SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1988 OF 2010 2 ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.1000/2002 on the file of the Motor Accidents Claims Tribunal, Thalassery. The respondents 1 and 2 were respondents 3 and 4 before the Tribunal. As 1[st] respondent admitted the insurance policy, the appellants have not impleaded the respondents 1 and 2 in the claim petition as respondents in the appeal. Therefore, for the sake of convenience, the parties are referred to as per the status in the claim petition. 2. The petitioners had filed claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Sri.Moideenkutty (deceased), husband of the 1[st] petitioner and father of petitioners 2 to 5 and the 4[th] respondent. The concise case of the petitioners in the claim petition, relevant for the determination of the appeal is that : on 08.04.2002 while the deceased was walking on the road margin of Cherupuzha - Payyannur road, a jeep bearing registration No.KL-13C-5592 MACA NO. 1988 OF 2010 3 (offending vehicle) coming from Payyannur side driven by the 2[nd] respondent in a rash and negligent manner hit the deceased. The deceased was treated at B.K.M.Hospital, Payyannur and then referred to the City Hsopital, Mangalore, for a period of 20 days (from 09.04.2002 to 29.04.2002). Unfortunately Sri.Moideenkutty lost his life on 29.04.2002. The offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The deceased was working as L.I.C.Agent, an agent of Malayala Manorama Publications Ltd. and an agriculturalist by profession, having more than 60 acres of land. Petitioners claimed that deceased was earning more than Rs.42,000/- per month. The petitioners contended that respondents 1 to 3 were jointly and severely liable to pay compensation to them, which they quantified at Rs.15,00,000/- (Rupees Fifteen Lakhs only). 3. Respondents 1 and 2 had filed a joint written statement, inter-alia contenting that 2[nd] respondent was not negligent in causing the accident, but it was the deceased who walked on the road in a negligent manner MACA NO. 1988 OF 2010 4 and that the compensation claimed was on the higher side. 4. The 3[rd] respondent filed a written statement adopting the very same contentions as that of respondents 1 and 2. It is also contended that there was a violation of the policy condition. The age, income and other averments in the claim petition was also disputed. 5. Petitioner examined as PWs 1 to 7 and Exts.A1 to A23 were marked in evidence. Respondents produced and marked Ext.B1 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part, by permitting the petitioners and the 4[th] respondent to realise an amount of Rs.4,42,250/- with interest and cost from the 3[rd] respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard the learned counsel appearing for the MACA NO. 1988 OF 2010 5 appellants/petitioners and the learned counsel appearing for the 1[st] respondent/Insurance Company. 9. The sole question that emanates for consideration in the appeal is whether the amount of compensation awarded by the Tribunal is reasonable and just. 10. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation', and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. Ext.A2 postmortem certificate and Ext.A1 FIR substantiates that the accident was caused due to the rash and negligent driving of the offending vehicle by MACA NO. 1988 OF 2010 6 the 2[nd] respondent. Admittedly the offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. Therefore, it is the 3[rd] respondent who is liable to indemnify the 1[st] respondent of his liability. 12. Ext.A11 legal heirship certificate proves that the petitioners as well as the 4[th] respondent are legal heirs of the deceased. The petitioners had produced Exts.A7 and A16 TDS certificates issued by the Life Insurance Corporation of India to prove that the deceased had an income of Rs.32,612/- for the period from 01.04.2000 to 31.03.2001 and an income of Rs.30,486/- for the period from 22.04.2001 to 25.03.2002, respectively. Similarly petitioners produced Ext.A14 to prove that the deceased had received commission of Rs.869/- for the month of March 2002. The above said certificates were proved through PWs 6 and 7. However, the petitioners had averred in the claim petition that the deceased had a monthly income of Rs.42,000/-. Going by the income shown in Exts.A7, A16 and A14, the averment that the deceased had an income of Rs.42,000/- per month has not been proved by the MACA NO. 1988 OF 2010 7 petitioners. It was in the said circumstances that the Tribunal fixed notional income of the deceased at Rs.8,000/- per month. 13. Considering the fact that the deceased was aged 65 years and that the deceased passed away on 29.04.2002, I find that the notional income fixed by the Tribunal, particularly for want of materials to prove the averments, at Rs.8000/- per month is reasonable and just. Hence I confirm the findings of the Tribunal with regard to the notional income of the deceased. 14. On a re-appreciation of the pleadings and materials on the record, it is seen that the petitioners as well as the 4[th] respondent were legal heirs of the deceased. However, the Tribunal deducted 1/3[rd] of the income of the deceased towards his personal living expenses. 15. Going by the law laid down in **Reshma Kumari vs. Madan Mohan : 2013 (2) KLT 304 (SC)** which was reiterated by the Honourable Supreme Court in **Pranay Sethi** (Supra) **,** since the petitioners and the MACA NO. 1988 OF 2010 8 4[th] respondent were dependents of the deceased, and that he was supporting a large family, the deduction of 1/3[rd] towards personal living expenses is on the higher side. Hence I modify the personal living expense of the deceased at 1/4[th] . Therefore, I hold that the petitioners and 4[th] respondent are entitled for an enhancement of compensation under the head of loss of dependency at Rs.3,60,000/- instead of Rs.3,20,000/- awarded by the Tribunal. 16. In clause (viii) of paragraph 61 **Pranay Sethi** (Supra) **,** the Honourable Supreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads of funeral expenses, loss of estate and loss of consortium @ of Rs.15,000/-, 15,000 and 40,000/-, respectively. 17. On a re-appreciation of the amounts awarded under the conventional heads it is seen that the Tribunal had only awarded an amount of Rs.5,000/- towards funeral expenses and Rs.2000/- under the head loss of estate. Hence I enhance the compensation under the MACA NO. 1988 OF 2010 9 said heads at Rs.15,000/- each. 18. Coming to the head of compensation for loss of consortium it is seen that the 1[st] petitioner is the wife of the deceased and the petitioners 4 and 5 who are the children of the deceased were only the minors at the time of death of the deceased. Hence I hold that only the 1[st] petitioner and petitioners 4 and 5 are entitled for loss of consortium because other petitioners were majors and leading independent life. Hence I award Rs.40,000 as spousal consortium to the 1[st] petitioner and Rs.40,000 each to petitioners 4 and 5 under the head of filial consortium totaling to an amount of Rs.1,20,000/-. 19. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 20. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited precedents, I am of the firm opinion that the appellants/petitioners and the 2[nd] respondent/4[th] respondent are entitled for MACA NO. 1988 OF 2010 10 enhancement of compensation as modified and recalculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1.|Transportation<br>expenses|4,000/-|4,000/-| |2.|Medical expenses|98,250/-|98,250/-| |3.|Extra nourishment|3,000/-|3,000/-| |4.|Funeral expenses|5,000/-|15,000/-| |5.|Loss of estate|2,000/-|15,000/-| |6.|Loss of consortium|10,000/-|1,20,000/-| |7.|Loss<br>of<br>dependency|3,20,000/-|3,60,000/-| ||Total|4,42,250/-|6,15,250/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.1,73,000/- (Rupees One Lakh Seventy Three Thousand only) with interest on the enhanced MACA NO. 1988 OF 2010 11 compensation at the rate of 7.5% per annum from the date of filing the petition till the date of deposit, after excluding the period of 346 days i.e, the delay in preferring the appeal and as directed by this Court on 24.03.2021 in C.M.Appln.No.1 of 2010, and proportionate cost. The 1[st] respondent shall deposit the enhanced compensation along with interest and cost within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the compensation to the appellants/petitioners and 2[nd] respondent/4[th] respondent as directed in this judgment in accordance with law. **Sd/-** **C.S.DIAS** **JUDGE** rkc