Annadampan Moideenkutty vs Ummer Khathab

Kerala High Court

Annadampan Moideenkutty vs Ummer Khathab on 20 May, 2024

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                         PRESENT

                      THE HONOURABLE MRS. JUSTICE SOPHY THOMAS

              MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946

                                MACA NO. 1706 OF 2010

     AGAINST THE AWARD PASSED BY THE M.A.C.T., MANJERI DATED 23.04.2010 IN

                                OP(MV) NO.1256 OF 2005

APPELLANT/PETITIONER:

     1       ANNADAMPAN MOIDEENKUTTY, S/O ALAVI
             KOLATHILA POYI HOUSE, VAVOOR, CHEEKODE P.O.,, MALAPPURAM DISRICT.
     2       KARIPARAMBAN AMINA,
             W/O.ANNADAMPAN MOIDEENKUTTY,KOLATHILA POYI HOUSE,, VAVOOR,
             CHEEKODE P.O., MALAPPURAM DISRICT.
             BY ADV SRI.K.RAKESH


RESPONDENTS/RESPONDENTS & SUPPL RESPONDENTS 4,5 & 6:

     1       UMMER KHATHAB
             VENGODAN HOUSE, PATHIRIKKODE, ELANKOOR,, MALAPPURAM
             DISTRICT,DRIVER PIN 676 121.
     2       K.FATHIMA W/O.SAINUDHEEN
             VILAKKUMADATHIL HOUSE, MOIDU MANZIL,, N.S.S.COLLEGE, HILL TOP
             ROAD, MANJERI,, MALAPPURAM DISTRICT, PIN 676 122.
     3       THE NEW INDIA ASSURANCE COMPANY LTD.
             MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN 686 661.
     4       SALIH SO.UBAID KOLATHILA POYI HOUSE
             VAVOOR, CHEEKODE P.O., MALAPPURAM DISTRICT,, PIN 673 640.
     5       SIDDIQUE SO.BICHIKOYA
             PARAKKOLIL HOUSE, VETTUPARA, CHEEKODE P.O.,, MALAPPURAM
             DISTRICT,PIN 673 640.
     6       THE NATIONAL INSURANCE COMPANY LTD.
             KANNUR, PIN 670 001.
             BY ADVS.
             Sri.LAL K JOSEPH, SC, NEW INDIA ASSURANCE COMPANY LTD.
             SMT.lATHA SUSAN CHERIAN, SC, NATIONAL INSURANCE COMPANY LIMITED
             LAL K JOSEPH
             SURESH SUKUMAR(K/634/1997)
             ANZIL SALIM(K/000447/2018)


      THIS   MOTOR   ACCIDENT   CLAIMS   APPEAL    HAVING   COME   UP   FOR   ADMISSION   ON

20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA. No. 1706 of 2010
                                   ..2..




                           SOPHY THOMAS, J.
                 =====================

                         M.A.C.A. No. 1706 of 2010

              ========================

                           JUDGMENT

Dated this the 20th day of May, 2024 The claimants in O.P. (M.V) No. 1256 of 2005 on the file of Motor Accidents Claims Tribunal, Manjeri are the appellants herein. They are challenging the award on the ground of inadequacy of compensation, as well as exoneration of the 6th respondent from compensating the claimants.

2. One Mr. Muhammed Rafeeq aged 22 years, while travelling pillion in a motorcycle ridden by the 4 th respondent was knocked down by KL-10-R-1701 bus driven by the 1st respondent in a rash and negligent manner. He sustained fatal MACA. No. 1706 of 2010 ..3..

injuries, and succumbed to the same on the same day. He was a coolie earning monthly income of Rs.6,000/-. The claimants who are his parents, approached the Tribunal claiming compensation of Rs.3,00,000/-. The Tribunal awarded compensation of Rs.1,80,500/- fixing the liability equally on the 3rd respondent insurer of the bus, and the 5th respondent the owner of the motorcycle. The 6th respondent, the insurance company of the motorcycle was exonerated from the liability. Hence, the appeal.

3. Respondents 1 to 3 are the driver, owner and insurer respectively of the offending bus. Respondents 4, 5 and 6 are the rider, owner, and insurer respectively of the motorcycle. The 3 rd respondent, the insurer of the bus as well as the 6 th respondent insurer of the motorcycle admitted the policy. A and B charges were filed against the 1st respondent driver of the bus as well as the 4th respondent the rider of the motorcycle, as the accident occurred due to the their contributory negligence. 4 th respondent rider of the motorcycle was not having valid driving license at the time of the accident. So, the 6 th respondent, the insurer of the MACA. No. 1706 of 2010 ..4..

motorcycle was exonerated from its liability, and the 5 th respondent the owner of the motorcycle was saddled with the liability to share 50% of the compensation.

4. Heard learned counsel for the appellants, and learned counsel for respondents 3 and 6.

5. Now this Court is called upon to find out whether there is any illegality, impropriety or irregularity in the impugned award warranting interference by this Court.

6. Learned counsel for the appellants would submit that the pillion rider in the motorcycle was a total stranger as far as the offending bus was concerned, and he was not liable if at all the 4th respondent was rash or negligent in riding the motorcycle. So, according to him, the learned Tribunal went wrong in exonerating the 6th respondent insurer, and also in burdening the 5th respondent with liability to pay 50% of the compensation to him. As far as the pillion rider in the motorcycle is concerned, the accident occurred when the offending bus dashed against the MACA. No. 1706 of 2010 ..5..

motorcycle in which he was travelling, and so, he was entitled to claim compensation as against the owner, driver and insurer of the offending bus. Whereas in a claim made by the rider of the motorcycle, his negligence if any could have been taken into account. This Court finds force in the argument put forward from the part of the appellants that learned Tribunal went wrong while directing to share the liability to compensate the appellants, by respondents 5 and 6 equally. Since the deceased was a pillion rider in the motorcycle, he cannot be held responsible for the contributory negligence if any from the part of the rider of the motorcycle, which contributed towards the accident. So, as far as the claim of the appellants are concerned, the owner, driver and insurer of the offending bus are liable to compensate them.

7. Now coming to the quantum of compensation fixed by the Tribunal, learned counsel for the appellants would submit that the deceased was a 22 year old coolie, earning monthly income of Rs.6,000/-. But, learned Tribunal fixed his monthly income notionally @ Rs.2,500/-. Being a coolie, no documents were MACA. No. 1706 of 2010 ..6..

produced by the appellants before the Tribunal to prove his income. But, going by the decision Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951], as the accident was in the year 2005, his notional income could have been fixed @ Rs.5,000/-. Since he was aged below 40, 40% addition could have been given towards his future prospects. So, his monthly income could have been taken as Rs.7,000/-. Since he was a batchler, 50% ought to have been deducted towards his personal expenses. So, the balance income could have been Rs.3,500/-. Since, he was aged only 22, the multiplier applicable was 18. So, the compensation for loss of dependency could have been assessed as Rs.7,56,000/- (3,500 x 12 x 18). Learned Tribunal awarded only Rs.1,65,000/- towards loss of dependency. So, the appellants are entitled to get the balance amount of Rs.5,91,000/- as enhanced compensation under the head loss of dependency.

8. Towards love and affection, learned Tribunal awarded Rs.5,000/-. Going by the decision National Insurance Company MACA. No. 1706 of 2010 ..7..

Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680], the appellants, who are the parents of the deceased are eligible to get Rs.40,000/- each which would come to Rs.80,000/-. After deducting Rs.5,000/- already awarded, they are entitled to get the balance amount of Rs.,75,000/-.

9. Under the head funeral expenses, learned Tribunal awarded only Rs.2,000/-. As per Pranay Sethi's case cited supra, they are eligible to get Rs.15,000/-. So, the they will get the balance amount of Rs.13,000/- under the head funeral expenses as enhancement.

10. Under the head loss of estate, learned Tribunal awarded only Rs.2,500/. As per Pranay Sethi's case cited supra, they are eligible to get Rs.15,000/-. So, they will get the balance amount of Rs.12,500/ as enhancement under the head loss of estate.

11. The deceased succumbed to the injuries on the same day. But learned Tribunal awarded Rs.5,000 towards pain and suffering. As per the decision United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur and Others (2021) 11 SCC MACA. No. 1706 of 2010 ..8..

780, since the deceased died on the date of accident itself, and the claim under the head, pain and suffering is a personal claim, the legal heirs are not entitled to get that amount. So, Rs.5,000/- awarded by the Tribunal under the head pain and suffering is liable to be deducted.

12. The compensation awarded under all other heads seems to be reasonable, and hence it needs no modification.

13. The enhanced compensation awarded in this appeal is given in the table below:-

Head of claim Amount Amount Amount Difference to awarded by awarded in deducted in be drawn as the appeal appeal enhanced Tribunal compensation Loss of dependency 1,65,000/- 7,56,000/- 5,91,000/- Love and affection 5,000/- 80,000/- 75,000/- Funeral expenses 2,000/- 15,000/- 13,000/-

       Loss of estate        2,500      15,000/-              12,500/-
     Pain and suffering    5,000/-      ..........        5,000/-
           Total                                    5,000/-   6,91,500/-

14. In the result, the appellants are entitled to get enhanced compensation of Rs.6,86,500/- (6,91,500 - 5,000). Since the MACA. No. 1706 of 2010 ..9..

appellants are the parents of the deceased, they will receive the enhanced compensation in equal share.

15. We have found that as far as the claim of the deceased is concerned, the 3rd respondent insurer of the offending bus is liable to compensate them in full measure. So, the 3rd respondent insurer is directed to deposit the enhanced compensation of Rs.6,86,500/- with 7% interest per annum from the date of petition till the date of deposit before the Motor Accidents Claims Tribunal, Manjeri within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse the award amount to the appellants 1 and 2 in equal share after deducting the liabilities, if any, towards Tax, balance court fee and legal benefit fund etc.

16. We have found that the entire liability to compensate the appellants is on the 3rd respondent insurer of the offending bus, So 50% of the amount awarded by the Tribunal, directed to be deposited by the 5th respondent, also is to be deposited by the 3 rd respondent with 7% interest per annum from the date of petition MACA. No. 1706 of 2010 ..10..

till the date of deposit.

The appeal is allowed to the extent as above and no order as to costs.

Sd/-

SOPHY THOMAS JUDGE RMV