Vasu and Others v. P.P. Abdurahiman and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. SATURDAY, THE 28[TH] DAY OF OCTOBER 2023 / 6TH KARTHIKA, 1945 MACA NO. 952 OF 2015 ``` ``` AGAINST THE ORDER/JUDGMENT OPMV 954/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ## **`APPELLANT/S:`** - `1 VASU AGED 58 YEARS (FATHER OF THE DECEASED) THADATHIL HOUSE, P.O.CHERUVAYOOR, MALAPPURAM DIST.` - `2 KARTHYAYANI WO.VASU AGED 50 YEARS (MOTHER OF THE DECEASED) THADATHIL HOUSE, P.O.CHERUVAYOOR, MALAPPURAM DIST.` - `3 VIKAS SO.VASU AGED 27 YEARS (BROTHER OF THE DECEASED) THADATHIL HOUSE, P.O.CHERUVAYOOR, MALAPPURAM DIST.` - `4 VISAKH SO.VASU AGED 22 YEARS (BROTHER OF THE DECEASED) THADATHIL HOUSE, P.O.CHERUVAYOOR, MALAPPURAM DIST.` - `5 VIPINA DO.VASU AGED 19 YEARS (SISTER OF THE DECEASED) THADATHIL HOUSE, P.O.CHERUVAYOOR, MALAPPURAM DIST.` - `BY ADV SMT.DIVYA B.NAIR` ## **`RESPONDENT/S:`** - `1 P.P.ABDURAHIMAN S/O.MOOSAKUTTY, P.P.HOUSE, THAZHE KUNNOTH, P.O.CIVIL STATION, CALICUT- 673 020.` - `2 BABU RAJAN O. AGED 35 YEARS S/O.UNNI NAGAN, NADUVEETTIL HOUSE, P.O.OMANUR MALAPPURAM - 673 640.` - `3 ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD. 4TH FLOOR, M SON'S ARCADE, CHEROOTTY ROAD, CALICUT 673001.` M.A.C.A. No.952/2015 : 2 : - `4 THE MANAGING PARTNER MS.CAPITHAN EXPORTING COMPANY, SAKTHIKULANGARA, KOLLAM-691 581.` ``` 5BINU D.S. SO.DEVADATHAN UTHRADAM HOUSE, SARATHI NAGAR, KARIKKOODU, KILIYALLUR KARUNAGAPALLY, KOLLAM - 690 518. 6THE ORIENTAL INSURANCE CO. LTD. MICRO OFFICE, LAKSHMI ARCADE, VALLIKEEZHU, KAVANADU PO, KOLLAM - 691 001. BY ADVS. SRI.G.PRABHAKARAN SRI.GEORGE CHERIAN (SR.) SRI.ALEXY AUGUSTINE GEORGE A.CHERIAN JACOB MATHEW KAITHALIL(K/000596/1989) ``` ## **`OTHER PRESENT:`** ``` R6- ADVGEORGE A.CHERIAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.952/2015 : 3 : ## JUDGMENT This appeal is submitted by petitioners in O.P.(M.V) No.954/2012 on the files of the Principal Motor Accidents Claims Tribunal, Kozhikode. 2. The said claim petition was filed by the appellants seeking compensation for the death of Vijil, who died due to the injuries sustained in a motor accident that occurred on 15.09.2010. Appellants 1 and 2 are the parents, and appellants 3 to 5 are the siblings of the deceased. The accident occurred when the bus in which the deceased was travelling was hit by a lorry coming from the opposite direction and overturned. The deceased was immediately taken to the Medical College hospital, Kozhikode, and while undergoing treatment, he succumbed to the injuries on the same day. 3. The bus was owned by the 1[st] respondent, driven by the 2[nd] respondent and was insured with the 3[rd] respondent. The lorry was owned by the 4[th] respondent, driven by the 5[th] M.A.C.A. No.952/2015 : 4 : respondent, and insured with the 6[th] respondent. Respondents 1, 3 and 6 have filed separate written statements disputing the negligence. The 3[rd] respondent, however, admitted the coverage of policy in respect of the bus. The 6[th] respondent submitted a written statement admitting the coverage of policy in respect of the lorry but denied the liability. They also disputed the negligence and quantum of compensation. 4. The evidence in this case consists of Exts.A1 to A4 from the side of the appellants, and no evidence was adduced from the side of the respondents. After the trial, the tribunal came to the conclusion that the accident had occurred due to the negligence on the part of both drivers and the liability to pay the compensation was apportioned among both the insurers in equal proportions. The quantum of compensation was fixed as Rs.4,30,000/- and the said amount was directed to be deposited by both the above insurance companies along with interest at the rate of 8% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted by the appellants in such circumstances, being dissatisfied with the quantum of compensation. M.A.C.A. No.952/2015 : 5 : 5. Heard Smt. Divya B. Nair the learned counsel appearing for the appellants, Sri. Mathews Jacob the learned senior counsel appearing for the 3[rd] respondent and Sri. George A. Cherian, the learned counsel appearing for the 6[th] respondent. 6. The main contest in this appeal is with regard to the quantum of compensation particularly under the head of loss of dependency. The tribunal has taken the monthly income of the deceased, who was working as a cleaner on a bus, as Rs.3,500/-, even though the claim in this regard was Rs.12,000/-. The specific contention of the learned counsel for the appellant is that the same is grossly inadequate. On examining the materials placed on record, I find some force in the said contentions. Of course, it is true that no evidence was adduced to substantiate the employment and income of the deceased. But even then, the amount of Rs.3,500/- appears to be on the lower side. It is to be noted in this regard that the method of computation that evolved from principles laid down by the Hon’ble 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 Company [(2014) 2 M.A.C.A. No.952/2015 : 6 : SCC 735] even in the absence of any evidence, the monthly income of an ordinary employee can be fixed as Rs.4,500/- in respect of an accident occurred in the year 2014. To determine the monthly income for the subsequent years, Rs.500/- each per year is to be added. While adopting such a method of computation, monthly income in this case would come to Rs.7,500/- as the accident occurred in the year 2010. Therefore, the said amount is fixed for the purpose of computing compensation for loss of dependency. 7. Moreover, it is evident from the award that the tribunal has not made any addition towards future prospects, whereas, in National Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 662], the Hon’ble Supreme Court stipulated that 40% of the income is to be added towards future prospects in respect of a person coming within the age group upto 40 years. Here, the deceased was aged 22, and therefore, an addition of 40% is to be made towards future prospects. It is also to be noted that the deceased died as a bachelor, leaving behind his parents and three siblings. As per the settled position of law, in the absence of any specific evidence, the siblings cannot be treated as M.A.C.A. No.952/2015 : 7 : dependents of the deceased. In this case, no evidence was adduced to substantiate their dependency upon the deceased. Therefore, only the parents are treated as dependents, and since the deceased died as a bachelor, half of the income has to be deducted towards personal expenses. While reassessing the compensation with the above criteria, the amount of compensation under the head of loss of dependency would come to Rs.11,34,000/- [ (7500 + 40%) x 12 x 18 x1/2]. The tribunal has already awarded Rs.3,78,000/- and the additional compensation would come to Rs.7,56,000/-. 8. When moving on to the other heads, it can be seen that towards the head of loss of estate, only an amount of Rs.5,000/- was granted by the tribunal, whereas the actual amount payable in this regard is Rs.15,000/-. Therefore, a further sum of Rs.10,000/- is to be granted under this head. However, the tribunal has granted Rs.25,000/- under the head of funeral expenses which is in excess by Rs.10,000/-. Therefore, the additional amount of Rs.10,000/- granted under the head of loss of estate is set off against the excess amount awarded for the funeral expenses. Another head which requires reconsideration M.A.C.A. No.952/2015 : 8 : is the compensation for loss of consortium. In this award, no amount is granted under the said head, but only Rs.20,000/- is granted towards the loss of love and affection. In the light of United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780], the appellants 1 and 2 are entitled to loss of consortium at the rate of Rs.40,000/- each, thereby making a total of Rs.80,000/-. 9. However, it is also a well settled position as per New India Assurance Company Ltd. v. Somwati & Ors. [(2020) 9 SCC 644] that when compensation for loss of consortium is awarded, no separate compensation needs to be granted for loss of love and affection. Therefore, Rs.20,000/- already awarded towards loss of love and affection is to be deducted. Thus, the additional compensation for the loss of consortium would be Rs 60,000/-. In addition to that, the learned counsel for the appellants further submits that no amount was granted towards pain and suffering. It is pointed out that the deceased passed away while he was undergoing treatment in the hospital after the accident. Therefore, some amount has to be granted towards pain and sufferings of the deceased. The learned counsel for the M.A.C.A. No.952/2015 : 9 : insurance companies would oppose the aforesaid aspect by pointing out that in the light of Satinder Kaur, it need not be granted. 10. However, on careful examination of the observations made by the Hon’ble Supreme Court, it can be seen that the said observations were made by the Hon’ble Supreme Court while referring to the observations in this regard in Sarla Varma v. Delhi Transport Corporation [2010(2)KLT 802 (SC)] case wherein the question considered was the pain and suffering of the relatives of the deceased and not that of the deceased. Therefore, in view of the fact that the right to claim the compensation for the pain and suffering of the deceased, survived to the legal heirs of the victim on his death, by virtue of the statutory provisions in Kerala Torts and Miscellaneous Provisions Act, a reasonable compensation can be granted under the said head. In the facts and circumstances of the case, I deem it appropriate to fix it as Rs.10,000/-. Thus, the total additional compensation receivable by the appellant is fixed as Rs.8,26,000/- (7,56,000 + 60,000 + 10,000). M.A.C.A. No.952/2015 : 10 : In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 29.08.2013 passed by the Principal Motor Accidents Claims Tribunal, Kozhikode in OP(MV) No.954/2012 is hereby modified by granting an additional compensation of Rs.8,26,000/- (Rupees eight lakhs twenty six thousand only) to the appellants herein and the said amount shall be deposited by the 3[rd] and 6[th] respondents insurance companies in equal proportions along with interest at the rate as ordered by the tribunal and proportionate costs within a period of two months from the date of receipt of a copy of this judgment. However, it is clarified that since the appeal was filed with a delay of 292 days, the appellant shall not be entitled to claim interest for the additional amount for the period of delay. Sd/ZIYAD RAHMAN A.A. JUDGE rpk/ncd