Vettompadikkal Kamalakshi v. Riyas Babu, Mohammedali, M/S New India Assurance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
Anil K. Narendran
Judgment Date: 2017-07-03
Court Decision / Holding: Appeal partly allowed. The appellant is entitled to an enhanced compensation of ₹2,56,000 with interest at 8% per annum from the date of petition till realization. The insurer is directed to deposit the amount before the Tribunal within two months from receipt of a certified copy of the judgment. There will be no order as to costs. All pending interlocutory applications are closed.
Final Disposition: Appeal partly allowed; enhanced compensation and re-calibration of heads; insurer to deposit the increased amount; costs none; interlocutory applications closed.

Parties to the Case

Appellants / Petitioners

Vettompadikkal Kamalakshi

Respondents

Riyas Babu
Mohammedali
M/S New India Assurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M.P. Mohammed Aslam

Counsels for Respondents

• Sri. P. Jayaram
• Sri. P.K. Babu
• Sri A. A. Ziyad Rahman

Case Synopsis & Summary

This Kerala High Court MACA concerns an appeal by the widow of Arumukhan seeking enhancement of compensation awarded by the Motor Accidents Claims Tribunal, Manjeri, under Section 166 of the Motor Vehicles Act, 1988, for the death of her husband in a road accident on 9 February 2009. The Tribunal held the rider negligent and the insurer liable, granting ₹2,27,684 under various heads. The High Court, after re-examining evidence (notably the deceased’s income), fixed the deceased’s monthly income at ₹6,000 (instead of the Tribunal’s ₹3,500) and recalculated the compensation by head, resulting in an increased loss of dependency to ₹3,36,000 and several supplementary amounts for bystander expenses, nourishment, transport, clothing, pain and suffering, and estate-related heads. It also addressed two specific heads—loss of consortium and loss of love and affection—by applying Jyni v. Raphael P.T. to disallow the latter where consortium was awarded, and by relying on Rajesh v. Rajbir Singh to raise the consortium award to ₹1,00,000, given the age of the deceased and the wife’s age. Funeral expenses were increased from ₹3,500 to ₹25,000. The cumulative enhancement amounted to ₹2,56,000, with 8% interest, and the insurer was directed to deposit within two months; no costs were awarded and interlocutory applications were disposed of.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

Appellant contends that the deceased was 65, an able-bodied coconut plucker, earning about ₹6,000 per month. The MACT fixed ₹3,500 as notional income, which is inadequate for 2009. They seek re-fixation at ₹6,000 monthly and recalculation of all heads, including loss of dependency, medical and miscellaneous expenses, pain and suffering, and other heads. They rely on precedents to justify higher compensation and emphasize the insurer’s liability, urging prompt deposit of the enhanced amount.

Contentions of Respondents

The judgment notes that no oral evidence was adduced on behalf of the respondents and does not detail separate argument, indicating that the respondents’ specific submissions are not elaborated in the available record; the tribunal’s findings are reviewed against the evidence and statutory framework.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Jyni v. Raphael P.T.	[2016(2) KHC 870(DB)]	Positive	Court followed the principle that once the wife is compensated under loss of consortium, she cannot receive further compensation under loss of love and affection; applied to limit the latter head.
Rajesh v. Rajbir Singh	[2013(3) KLT 89(SC)]	Positive	SC decision cited to justify higher loss of consortium (₹1,00,000) in the given circumstances and applied to re-fix this head.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 3RD DAY OF JULY 2017/12TH ASHADHA, 1939** ## **MACA.No. 2754 of 2012 ()** **------------------------(AGAINST THE AWARD IN OP(MV).NO. 1237/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI DATED 06-09-2012)** **------------------** ## **APPELLANT/PETITIONER :** **---------------------------------------** **VETTOMPADIKKAL KAMALAKSHI, AGED 53 YEARS, W/O. LATE ARUMUKHAN, MAYYAMTHANNI, CHANDAKKUNNU P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.M.P.MOHAMMED ASLAM** ## **RESPONDENT(S)/RESPONDENTS :** **---------------------------------------------------** **1. RIYAS BABU, S/O. AYISHABI, MACHINCHERY HOUSE, KETTINGAL,** **VAZHIKKDAVU P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT. PIN-679 327** **2. MOHAMMEDALI, S/O. MOYTHEENKUTTY HAJI, 2/33A, PATTAPURATH HOUSE, CHERUKUNDANGAD, PALAKKAD (OWNER). PIN-679 305** **3. M/S. NEW INDIA ASSURANCE CO. LTD., THRIPURI BUILDINGS, EAST NADAKKAVU, KOZHIKODE (INSURER). PIN-673 011** **R2 BY ADV. SRI.P.JAYARAM R3 BY ADVS. SRI.P.K.BABU SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **-----------------------------------------------** M.A.C.A.No.2754 of 2012 **-----------------------------------------------** Dated this the 3[rd] day of July, 2017 ## **J U D G M E N T** ## **ANIL K.NARENDRAN, J** ## . This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Manjeri, dated 6.9.2012 in O.P.(MV) No.1237/2009, an application filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of her husbandArumukhan, who died in a motor accident which occurred on 9.2.2009 while walking along the side of a public road. At the place of accident, he was hit by a motor cycle bearing registration No.KL-52/6005 ridden and owned by respondents 1 and 2 and insured with the 3[rd] respondent. The deceased succumbed to the injuries sustained in the accident, while undergoing inpatient treatment. Alleging that the accident occurred due to the rash and negligent riding of the motor cycle by the 1[st] respondent rider, claim petition was filed before the Tribunal claiming a total compensation of `3,50,000/- under M.A.C.A.No.2754 of 2012 :-2-: different heads. 2. Before the Tribunal Exts.A1 to A6 series were marked and Pws.1 and 2 were examined on the side of the appellant/ claimant. On the side of the respondents, Exts.B1 and B2 were marked. No oral evidence was adduced on the side of the respondents. 3. After considering the materials and evidence on record the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the motor cycle by the 1[st] respondent rider. Since the said vehicle was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 2[nd] respondent owner. Under different heads, the Tribunal awarded a total compensation of `2,27,684/- and directed the 3[rd] respondent insurer to deposit the said amount before the Tribunal together with interest at the rate of 9% per annum from the date of petition till realisation together with proportionate costs. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal. 5. Heard arguments. M.A.C.A.No.2754 of 2012 :-3-: 6. The sole issue that arises for consideration is as to whether the appellant/claimant is entitled for enhancement of the compensation awarded by the Tribunal under different heads. 7. The accident was of the year 2009 and at the time of the accident, the deceased was aged 65 years. The appellant/ claimant contended that the deceased was a coconut plucker earning a monthly income of `6,000/- per month. Other than the oral testimony of the 1[st] appellant as PW1, no reliable materials were produced before the Tribunal in order to substantiate the said contention. It was in such circumstances that the Tribunal notionally fixed the monthly income of the deceased at `3,500/-. Considering the fact that the accident was of the year 2009 and at the time of the accident, the deceased was an able bodied person aged 65 years, we deem it appropriate to re-fix his monthly income notionally at `6,000/- for the purpose of assessing compensation under different heads. 8. The compensation awarded by the Tribunal under different heads reads thus ; |Sl. No.|Head of claim|Amount claimed in ₹.|Amount awarded in ₹.| |---|---|---|---| |1|Loss of earning (total)|---|---| M.A.C.A.No.2754 of 2012 :-4-: |Sl. No.|Head of claim|Amount claimed in ₹.|Amount awarded in ₹.| |---|---|---|---| |2|Loss of earning (partial)|---|---| |3|Medical and miscellaneous expenses|6,000/-|3,184/-| |4|Future treatment|----|---| |5|Bystander expenses|Claim under 3|---| |6|Transportation expenses|2,500/-|---| |7|Extra nourishment|1,500/-|---| |8|Damage to clothing etc.|1,000/-|---| |9|Pain and suffering|15,000/-|---| |10|Loss of dependency|3,11,000/-|1,96,000/-| |11|Loss of consortium|5,000/-|10,000/-| |12|Loss of love and affection|Claim under 10|10,000/-| |13|Loss of estate|5.000/-|5,000/-| |14|Loss/reduction in earning capacity|---|---| |15|Loss of amenities and conveniences etc|---|---| |16|Any other heads|3.000/-|3,500/-| ||TOTAL|3,50,000/-|2,27,684/-| 9. The Tribunal awarded a sum of `1,96,000/- as compensation under the head 'loss of dependency', taking the monthly income of the deceased as `3,500/- and deducting 1/3[rd] of his monthly income towards 'personal and living expenses' of the deceased and applying the multiplier of '7'. Since we have already re-fixed the monthly income of the deceased notionally at `6,000/-, the compensation payable under the head 'loss of dependency' is re-assessed as `3,36,000/- (6,000x12x7x2/3), M.A.C.A.No.2754 of 2012 :-5-: resulting an additional compensation of ` **1,40,000** /- under this head. 10. Towards 'bystander expenses' and 'extra nourishment', no amount has been awarded by the Tribunal. Considering the fact that the deceased had undergone inpatient treatment for a period of 5 days, we deem it appropriate to grant a sum of ` **1,000** /- (200x5) and ` **500** /- (100x5) respectively towards 'bystander expenses' and 'extra nourishment'. 11. Towards 'transportation expenses', no amount has been awarded by the Tribunal. Considering the fact that the accident was of the year 2009, we deem it appropriate to grant a sum of ` **2,000** /- as compensation under this head. 12. Towards 'damage to clothing', no compensation has been granted by the Tribunal. Considering the facts and circumstances of the case, we deem it appropriate to grant a sum of ` **1,000** /- under this head. 13. Towards 'pain and suffering', no amount has been granted by the Tribunal. Considering the nature of injuries sustained by the deceased and also the fact that the deceased had undergone inpatient treatment for a period of 5 days, we deem it M.A.C.A.No.2754 of 2012 :-6-: appropriate to grant a sum of ` **10,000** /- under the head 'pain and suffering'. 14. Towards 'loss of consortium' and 'loss of love and affection', the Tribunal awarded a sum of `10,000/- each. In **Jyni v. Raphael P.T. [2016(2) KHC 870(DB)]** this Court held that once the wife of the deceased is compensated under the head 'loss of consortium', she is not entitled for any further compensation under the head 'loss of love and affection'. In such circumstances, the compensation awarded by the Tribunal under the head 'loss of love and affection' cannot be sustained. 15. However, under the head 'loss of consortium', the Tribunal awarded only a sum of `10,000/-. In **Rajesh v. Rajbir Singh [2013(3) KLT 89(SC)]** , the Apex Court has awarded a sum of `1,00,000/- as compensation towards 'loss of consortium'. That was a case in which the accident occurred in the year 2007 and at the time of accident, the deceased was aged 33 years and his wife was still younger. However, in the instant case, the deceased was aged 65 years and his wife was aged 53 years at the time of the accident. However, the accident is of the year 2009. Therefore, considering the facts and circumstances of the M.A.C.A.No.2754 of 2012 :-7-: case, we deem it appropriate to re-fix the compensation under the head 'loss of consortium' as `1,00,000/-. After deducting the sum of `10,000/- awarded by the Tribunal under the head 'loss of consortium' and a further sum of `10,000/- awarded under the head 'loss of love and affection' [which cannot be sustained in view of the judgment of this Court in **Jyni** 's case (supra)], the appellant will be entitled for an additional compensation of ` **80,000** /- under the head 'loss of consortium'. 16. Towards 'loss of estate', the Tribunal awarded a sum of `5,000/-. The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which warrants no enhancement in this appeal. 17. Towards 'funeral expenses', the Tribunal awarded a sum of `3,500/-. In Rajesh's case (supra), the Apex Court awarded a sum of `25,000/- towards 'funeral expenses'. In such circumstances, we deem it appropriate to re-fix the compensation under this head to `25,000/-, resulting an additional compensation of ` **21,500** /-. In the result, the appellant will be entitled to a total additional compensation of ` **2,56,000** /- (1,40,000+1,000+500+ M.A.C.A.No.2754 of 2012 :-8-: 2,000+1,000+10,000+80,000+21,500), which will carry interest at the rate of 8% per annum from the date of petition till realisation. Since the insurance coverage of the vehicle is not in dispute, the 3[rd] respondent insurer shall deposit the said amount before the Tribunal within a period of 2 months from the date of receipt of a certified copy of this judgment. There will be no order as to costs. All pending interlocutory applications are closed. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **ANIL K.NARENDRAN JUDGE** ami/4.7.17 //True copy// P.A.to Judge