Vimala and Others v. Muhammed P.S. Sulaiman, Suresh, The National Insurance Company Limited, Beena, Babu and Anju

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` TUESDAY, THE 30[TH] DAY OF AUGUST 2022 / 8TH BHADRA, 1944 ``` ## **`MACA NO. 2438 OF 2013`** ## **`AGAINST THE AWARD IN OPMV 909/2007 OF ADDITIONAL MOTOR ACCIDENT`** ## **`CLAIMS TRIBUNAL, ALAPPUZHA`** ## **`APPELLANTS/PETITIONERS 1 TO 3:`** - **`1 VIMALA AGED 29 YEARS, W/O.AJITH, CHIRAPARAMBIL, ASRAMAM WARD, ALAPPUZHA.`** - **`2 AISWARYA AGED 7 YEARS, MINOR, D/O. AJITH, CHIRAPARAMBIL, ASRAMAM WARD, ALAPPUZHA.`** - **`3 ANASOOYA AGED 2 YEARS,MINOR, CHIRAPARAMBIL, ASRAMAM WARD, ALAPPUZHA. (PETITIONERS 2 AND 3 ARE REPRESENTED BY THEIR MOTHER AND GUARDIAN IST PETITIONER VIMALA) BY ADV SRI.T.G.RAJENDRAN`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 MUHAMMED P.S. S/O. SULAIMAN KLUNJU, CHOOZHATTUVELI, MANNANCHERRY P.O., ALAPPUZHA - 688 538.`** - **`2 SURESH S/O. SUMANGALA, PANAVELI, MANNANCHERY P.O., ALAPPUZHA - 688 538.`** - **`3 THE NATIONAL INSURANCE COMPANY LIMITED REPRESENTED BY ITS MANAGER, NELLAI COMPLEX, NORTH OF IRON BRIDGE, ALAPPUZHA - 688 001.`** - **`4 BEENA AGED 45 YEARS, W/O. BABU, CHIRAPARAMBIL, ASRAMAM WARD, ALAPPUZHA - 688 001.`** - **`5 BABU AGED 47 YEARS, S/O. ABDUL HAMEED KHAN, RESIDING DO`** ``` 2 ``` ## **`MACA NO. 2438 OF 2013`** ``` 6ANJU AGED 22 YEARS, D/O. BABU, CHIRAPARAMBIL, ASRAMAM WARD, ALAPPUZHA - 688 001. BY ADV SMT.RAJI T.BHASKAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2438 OF 2013 ``` ``` 3 ``` ## **JUDGMENT** This appeal is at the instance of the petitioners 1 to 4 in O.P.(MV).No.909/2007 on the file of the Motor Accidents Claims Tribunal, Alappuzha, challenging award dated 04.08.2012 in the above case, arraying respondents and petitioners 4 to 6 before the Tribunal as respondents herein. 2. Heard the learned counsel for the appellants as well as the learned counsel appearing for the Insurance Company. 3. The summary of the claim put up by the appellants before the Tribunal is as under: One ‘Ajith’ died in consequence of a motor accident occurred on 14.04.2007 at about 9.00 p.m., while he was riding on his motorcycle and when he was ``` MACA NO. 2438 OF 2013 ``` ``` 4 ``` hit down by another motorcycle bearing registration No.KL-04/R-155 driven by the first respondent came from the South to North in a rash and negligent manner. Accordingly, the legal representatives of the deceased put up claim petition, canvassing Rs.11,13,000/- as compensation. 4. Respondents 1 and 2 were declared as ex parte by the Tribunal. 5. The third respondent Insurance Company filed written statement admitting policy to the motorcycle bearing registration No.KL-04/R-155. But disputed negligence on the part of the first respondent. Apart from that, age, occupation, income as well as compensation claimed under various heads were disputed. 6. The Tribunal adjudicated the matter, relying ``` MACA NO. 2438 OF 2013 ``` ``` 5 ``` on the evidence of PW1 and PW2, and Exts.A1 to A9 marked on the side of the appellants, where no evidence let in by the respondents. 7. After finding negligence on the part of the second respondent, the Tribunal granted Rs.7,77,597/along with 7.5% interest per annum. 8. Dissatisfied by the quantum of compensation, the appellants are before this Court. 9. Though the question of negligence found by the Tribunal is not in dispute, the appellants produced copy of charge to prove that, on investigation, police laid charge against the first respondent and the same is marked as Ext.A10. In fact, no challenge raised in the matter of negligence found by the Tribunal. Further, Ext.A10 shows charge against the first respondent alone. Therefore, the question of ``` MACA NO. 2438 OF 2013 ``` ``` 6 ``` negligence does not arise for decision of this Court. 10. The submission made by the learned counsel for the appellants while pressing for increase on the quantum is that the Tribunal accepted only Rs.4,000/alone as the monthly income of the deceased though Rs.7,000/- was claimed as his monthly income by doing cable work. 11. The learned counsel for the insurer not disputed fixation of income based on the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236].** It is true that PW2 was examined to prove the income at Rs.7,000/-. However, during chief examination, PW2 stated that the income of a labour constructor during 2007 was in between Rs.150– Rs.200/-. Thus, if the evidence of PW2 is given ``` MACA NO. 2438 OF 2013 ``` ``` 7 ``` emphasis, then also the monthly income does not exceed Rs.6,000/-. Therefore, Rs.6,000/-, following the ratio in **Ramachandrappa’s** case (supra) can be fixed in this case as the monthly income for the purpose of calculating ‘disability income’. As such, 40% addition towards future prospects (6,000+2,400=8,400) also is liable to be given, following the ratio in **National Insurance Company Limited v. Pranay Sethi and** **Ors** (2017 (4) KLT 662) **.** In this case, ‘17’ is the multiplier applied by the Tribunal, which is not in dispute and 1/4[th ] is the deduction since the number of dependents are 5. Accordingly, the ‘loss of dependency income’ is re-calculated as under: 8,400 x 12 x 17 x 3/4 = **Rs.12,85,200/-** 12. Apart from that, the claimants 1 to 5 are entitled to get Rs.40,000/- each, towards 'loss of consortium'. Thus, **Rs.2,00,000/-** (40,000x5) is ``` MACA NO. 2438 OF 2013 ``` ``` 8 ``` granted under the said head. Apart from that, **Rs.15,000/-** each is granted under the head 'loss of estate’ and funeral expenses'. Thus, the total compensation would come to **Rs.15,15,200/-.** 13. It is noticed that the Tribunal granted Rs.25,000/- under the head ‘pain and sufferings’ and Rs.2,00,000/- under the head ‘love and affection’. The same are impermissible as per the ratio in **United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and Others [2020(3) KHC 760].** In the result, this appeal stands allowed. It is ordered that the appellants are entitled to get **Rs.15,15,200/-** as compensation inclusive of the amount already granted by the Tribunal with the same rate of interest awarded by the Tribunal, freezing interest for 365 days specifically excluded by this Court while allowing the delay petition-C.M.Application No.1 of 2013 ``` MACA NO. 2438 OF 2013 ``` ``` 9 ``` as per order dated 22.12.2021, payable by the Insurance Company, from the date of petition till the date of deposit or realisation. The appellants valued the claim only at Rs.11,13,000/- and therefore, they are bound to pay additional court fee for the enhanced compensation to the tune of Rs.4,02,200/-. The third respondent, Insurance Company is directed to deposit Rs.4,100/- as additional court fee by a separate cheque in favour of M.A.C.T., Alappuzha. In the matter of apportionment, it is noticed that the original petitioners 1 to 5 are the real dependents. The dependency of the sixth original petitioner, being sister of the deceased is not established in a convincing manner. Therefore, the amount stands apportioned in the proportion; 30% in the name of the first appellant, 20% each in the names of the second and third appellants and ``` MACA NO. 2438 OF 2013 ``` ``` 10 ``` 15% in the name of the fourth respondent and 12% in the name of the 5[th] respondent. 3% of the award shall be given to the sixth original petitioner also. Therefore, the insurer shall deposit the balance amount in the name of the original petitioners in the above proportion within two months, after adjusting amount, if any, already deposited. On deposit, they can withdraw the same. **Sd/A. BADHARUDEEN JUDGE** nkr