Uma vs M.M.Manaf
2021 Latest Caselaw 23929 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
             THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 13TH DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943
                    MACA NO. 227 OF 2013
 AGAINST THE AWARD IN OPMV 16/2004 OF MOTOR ACCIDENT CLAIMS
                     TRIBUNAL, THRISSUR
APPELLANTS/PETITIONERS:

    1    UMA
         W/O. LATE RAVEEDRANATHAN, KRISHNA REMYAM,
         THRUVENKITAM, GURUVAYOOR, CHAVAKKAD TALUK.
    2    REMYA
         D/O. LATE RAVEEDRANATHAN, KRISHNA REMYAM,
         THRUVENKITAM, GURUVAYOOR, CHAVAKKAD TALUK.
    3    ROHITH
         S/O. LATE RAVEEDRANATHAN, KRISHNA REMYAM,
         THRUVENKITAM, GURUVAYOOR, CHAVAKKAD TALUK.
         BY ADV SRI.DILIP J. AKKARA


RESPONDENTS/RESPONDENTS:

    1     M.M.MANAF
          S/O. MARAKKAR, MADAPPATTUPARAMBIL HOUSE,
          PAZHUNJNANA, CHEMMANITHITTA P.O.,
          THRISSUR DISTRICT.
    2     HANEEFA
          S/O. ALU, HARIYATH VEETIL,
          PUNNA, CHAVAKKAD - 680 506, THRISSUR.
    3     THE NEW INDIA ASSURANCE COMPANY LIMITED
          ANUGRAHA BUILDING, WADAKKANCHERY ROAD,
          KUNNAMKULAM-680 503, THRISSUR.
         R3 BY ADV N.S.MOHAMMED USMAN


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 16.9.2021, THE COURT ON 13.12.2021 THE
FOLLOWING:
 M.A.C.A.No.227/2013
                                       2




                              T.R. RAVI, J.
               --------------------------------------------
                         M.A.C.A.No.227 of 2013
                --------------------------------------------
               Dated this the 13th day of December, 2021

                               JUDGMENT

The 1st appellant's husband, while riding his motorcycle on

13.8.2003, was hit by another motorcycle driven in a rash and

negligent manner by the 2nd respondent and suffered serious

injuries. He was admitted in Rajah Hospital, Muthuvattur and

thereafter at Amala Hospital, Thrissur, and again readmitted to

Rajah Hospital, where he succumbed to the injuries on

23.10.2003. The 1st appellant and the children of the deceased

who are appellants 2 and 3, preferred the claim petition. The

Tribunal awarded a sum of Rs.2,81,890/- as compensation. The

appeal has been filed claiming enhanced compensation.

2. Heard the counsel for the appellants and the

respondents.

3. The first contention of the counsel for the appellants is

that the Tribunal went wrong in fixing contributory negligence on

the part of the deceased to the extent of 30%. The counsel pointed

out that the First Information Statement and the scene mahazar M.A.C.A.No.227/2013

show that the deceased was not on the wrong side. Exhibit A2

charge sheet shows that the accident happened because of the

negligence of the 2nd respondent. It is hence submitted that in the

absence of any contra evidence sufficient to disprove the contents

of Exhibit A2, the Tribunal should not have fixed contributory

negligence on the part of the deceased. The contention is fully

justified in the light of the dictum laid down in New India

Assurance Co. Ltd. v. Pazhaniammal reported in [(2011) 1

KLT 648]. I hence find that there is no justification for reducing

any amount of compensation on reason of contributory negligence.

4. The next contention put forward by the Counsel for the

appellants is that the Tribunal went wrong in fixing the notional

monthly income as Rs.3,000/- and adopting the multiplier 7. The

deceased was owner and operator of a rice mill. He was aged 60

years. Going by Sarla Verma vs Delhi Transport Corporation &

Ors. reported in [2010 (2) KLT 802], the multiplier to be

adopted should be 9. In the absence of evidence regarding the

income, the yardstick in Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Co.Ltd., reported in [AIR 2011

SC 2951], could have been adopted and a monthly income of

Rs.4,000/- ought to have been taken, which is incidentally the M.A.C.A.No.227/2013

amount claimed. For arriving at the compensation for loss of

dependency, the monthly income should be increased by 10% to

its future prospects [see National Insurance Company Ltd. v.

Pranay Sethy & Ors. reported in [2017 (5) KHC 350 (SC)].

The amount awarded under the head loss of dependency has to be

suitably modified.

5. The counsel for the appellants next submitted that the

Tribunal did not award any amount towards transportation

expenses, extra nourishment, damage to clothing and pain and

suffering. So also the amounts awarded under the conventional

heads loss of estate and funeral expenses are also very less. It is

further submitted that towards loss of consortium and loss of love

and affection, the Tribunal has awarded a sum of Rs.15,000/- each

in place of Rs.1,20,000/- (40000x3). The above contentions are

fully justified except in the case of compensation for pain and

suffering, which going by the later Supreme Court judgments

cannot be claimed by the legal representatives of the deceased.

Adopting a nominal amount of Rs.200/- per day for bystanders

expenses and a like sum for extra nourishment, for 78 days of

hospitalisation of the deceased, an amount of Rs.15,600/- each

ought to be granted under the above two heads. An amount of M.A.C.A.No.227/2013

Rs.10,000/- is to be granted for transportation costs, in view of the

fact that the deceased was moved from Hospitals at least on four

occasions. A nominal amount of Rs.1,000/- is awarded under the

head damage to clothing.

6. The appellants are hence entitled to additional

compensation of Rs.90,000/- under the head loss of consortium

and loss of love and affection put together, Rs.10,000/- towards

funeral expenses and Rs.10,000/- towards loss of estate. The

amount to be awarded under the head loss of dependency should

be Rs.3,16,800/- (4000x110%x12x9x2/3). After deducting the

sum of Rs.1,68,000/- awarded by the Tribunal, the appellants will

be entitled to an additional compensation of Rs.1,48,800/- under

the above head. The appellants will be entitled to Rs.15,600/-

towards extra nourishment, Rs.10,000/- towards transportation

charges, Rs.1,000/- towards damage to clothing and an

additional sum of Rs.3,700/- towards bystander expenses.

7. In the result, the appeal is allowed. The appellants are

awarded additional compensation of Rs.2,89,100/- (Rupees

Two Lakhs Eighty Nine Thousand One Hundred only) with

interest at the rate of 9% per annum from the date of filing of the

claim petition (01.01.2004) till the date of realisation, with M.A.C.A.No.227/2013

proportionate costs. The appeal was filed with a delay of 153

days. By order dated 24.03.2021, this Court condoned the delay in

filing the appeal on condition that the appellants will not be

entitled to interest on the enhanced compensation which may be

awarded by this Court for the period of 153 days. The interest

payable on the enhanced compensation shall be hence excluding

the period of 153 days. The 3rd respondent insurer shall deposit the

additional compensation granted in this appeal along with the

interest and proportionate costs, before the Tribunal within two

months from the date of receipt of a certified copy of this

judgment, after deducting any amount to which the appellants are

liable towards balance court fee and legal benefit fund. The

disbursement of the compensation to the appellants shall be in

accordance with law.

Sd/-

T.R. RAVI JUDGE

dsn