United India Insurance Company Limited v. SEBIYA and Others

MACA.No.772/2014 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945_ ## _MACA NO. 772 OF 2014_ _AGAINST THE ORDER/JUDGMENT OPMV 884/2008 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL, PERUMBAVOOR_ ## _APPELLANT/3RD RESPONDENT:_ _UNITED INDIA INSURANCE COMPANY LIMITED, PERUMBAVOOR, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI-11._ _BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW_ ## _RESPONDENTS/PETITIONERS:_ _1 SEBIYA, W/O.ABDUL AZEEZ, PUTHUPARAMBIL HOUSE, THRIKKAKARA, EDAPPALLY-682 038._ _2 ASBIYA, D/O.ABDUL AZEEZ, PUTHUPARAMBIL HOUSE, THRIKKAKARA, EDAPPALLY-682 038._ _3 ASBEER, S/O.ABDUL AZEEZ, PUTHUPARAMBIL HOUSE, THRIKKAKARA, EDAPPALLY-682 038._ _4 SAINABA, PUTHUPARAMBIL HOUSE, THRIKKAKARA, EDAPPALLY-682 038._ MACA.No.772/2014 2 _5 ALI,PUTHUPARAMBIL HOUSE, THRIKKAKARA, EDAPPALLY-682 038._ _BY ADV.SMT.ANUPAMA JOHNY_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.772/2014 3 ## **J U D G M E N T** This appeal is submitted by the 3[rd] respondent Insurance Company in O.P.(MV).No.884 of 2008 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. 2. The said claim petition was submitted by respondents 1 to 5 herein, seeking compensation for the death of one Abdul Azeez, in an accident that occurred on 28.05.2008. According to the respondents, the accident occurred when he was hit by a motorcycle insured with the appellant, while he was walking through the road. According to the respondents, the deceased was a head load worker with a monthly income of Rs.10,000/-. He was aged 46 years at the time of the accident. The claim petition was submitted in such circumstances seeking an amount of Rs.13,50,000/- as the compensation. 3. The appellant filed a written statement admitting the coverage of policy in respect of the motorcycle but disputed the liability on various grounds. The quantum of compensation was also seriously disputed by them. MACA.No.772/2014 4 4. The evidence in this case consists of the deposition of PW1 and PW2 and Ext.A1 to A9. No evidence was adduced from the side of the appellant. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the rider of the motorcycle and being the insurer of the vehicle, the appellant was held liable to pay the compensation. The quantum of compensation was fixed as Rs.15,32,093/-, and the said amount was directed to be deposited by the appellant with the interest of 8% per annum. This appeal is submitted by the 3[rd] respondent Insurance Company challenging the quantum of compensation. 5. Heard Sri.Mathews Jacob, learned counsel for the appellant and Smt.Anupama Johny, learned counsel for the respondents. The main contention put forward by the learned counsel for the appellant is with regard to the monthly income taken by the Tribunal. According to the learned counsel, the monthly income of Rs.8,378 fixed by the Tribunal is on the higher side. As evidenced by Ext.P8, which was issued by the Kerala Headload Workers Welfare Board, Kalamassery, he was a registered member of the Head Load Welfare Fund. To MACA.No.772/2014 5 substantiate Ext.A8, PW2 was also examined, and the amount of Rs.8,378/- was fixed based on his evidence. The learned counsel for the appellant would submit that since the monthly income of head load workers depends upon the work they get, income shall vary from month to month. The monthly income taken by the Tribunal is on the higher side, it was contended. It was also pointed out that even going by the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co. [(2014) 2 SCC 735],** monthly income can only be fixed as Rs 6,500/- in respect of an accident occurred in the year 2008. 6. However, after carefully considering the contentions from either side, I am of the view that, in the light of the evidence adduced by the claimants in the form of Ext.A8 and the deposition of PW2, the said contention cannot be accepted. It is evident that, the deceased was working as a head load worker having registration with the Welfare Fund Board, which is a regular employment in the organized sector, even MACA.No.772/2014 6 though monthly income may vary from month to month. Therefore, a slightly higher income than that of an ordinary worker can be fixed. As the Tribunal fixed the monthly income based on the evidence of PW2, I do not find any justifiable grounds to interfere with the said finding. However, even while arriving at the said conclusion, one submission made by the learned counsel for the appellant has to be accepted, which is with respect to the addition made by the Tribunal towards future prospects. It was pointed out that 30% of the monthly income was added towards future prospects, whereas as per the principles in **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)],** the addition should have been 25%. Therefore, while reworking the compensation with 25% of the additional amount would come to Rs.12,25,341/- [8,378+25%; (10473) x 12 x 13 x 3/4]. The amount already awarded by the Tribunal is Rs.12,77,016/- and therefore, the award contains an excess amount of Rs.51,675/-. In addition to that, the Tribunal awarded an amount of Rs.25,000/- towards funeral expenses, whereas the actual entitlement is 15,000/-. Therefore, Rs.10,000 is in excess. Similarly, Rs.75,000/- was awarded MACA.No.772/2014 7 under the head loss of love and affection. It is a settled principle as per **United India Insurance Co. Ltd. v. Satinder Kaur [2020 (3) KHC 760],** that, no separate amount can be awarded for loss of love and affection when compensation for the loss of consortium is awarded, and therefore, Rs.75,000/has to be deducted. At the same time, it cannot be ignored that the Tribunal awarded only an amount of Rs.1,00,000/- under the head of loss of consortium, whereas, as per **Satinder Kaur’s case,** all the appellants are entitled to compensation at the rate of 40,000/- each under the said head. Therefore, the total compensation entitled by the respondents is Rs.2,00,000/(40000 x 5). Therefore, an additional compensation of Rs.1,00,000/- is to be granted to the appellants under that head, and it is ordered accordingly. Similarly, no amount is awarded under the head of loss of estate, whereas the actual entitlement is Rs.15,000/-. Hence, Rs.15,000/- is awarded under that head. Another contention of the learned counsel for the appellant is that, an amount of Rs.15,000/- has been granted under the head of pain and suffering. Considering the fact that a notional amount needs to be awarded under the said head, in the case of death, the same MACA.No.772/2014 8 is fixed as 10,000/-. Thus, the excess amount awarded by the Tribunal is fixed as Rs.26,675/- [(51675+10000+75000+5000)(1,00000+15000)] (Rupees twenty six thousand six hundred and seventy five only), and thus the said amount has to be deducted from the amount awarded by the Tribunal. Therefore, total amount of compensation receivable by the respondents is fixed as Rs.15,05,418/- In the light of the aforesaid observations and findings, this appeal is allowed. The award passed by the Motor Accident Claims Tribunal, Perumbavoor in O.P.(MV).No.884 of 2008 is hereby modified by re-fixing the compensation as Rs.15,05,418/(Rupees fifteen lakhs five thousand four hundred and eighteen only). The appellant is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this judgment after deducting the amounts already deposited by them. Sd/- ## **ZIYAD RAHMAN A.A.** ## **JUDGE** DG/17.10.23