Amina Beevi vs Rejendran
2021 Latest Caselaw 22780 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
   SATURDAY, THE 20TH DAY OF NOVEMBER 2021 / 29TH KARTHIKA, 1943
                       MACA NO. 1861 OF 2016
   AGAINST THE AWARD DATED 24.2.2016 IN OPMV 397/2013 OF MOTOR
             ACCIDENT CLAIMS TRIBUNAL ,KOLLAM, KOLLAM
APPELLANT/PETITIONERS:
     1     AMINA BEEVI,AGED 50 YEARS
           W/O. THANGAL KUNJU, ANWAR MANZIL, PADINJATTAKKARA PO.,
           THEVALAKKARA VILLAGE, KARUNAGAPPALLY TALUK

    2     ANSIYA BEEVI, AGED 30 YEARS
          D/O. THANGAL KUNJU ANWAR MANZIL, PADINJATTAKKARA PO.,
          THEVALAKKARA VILLAGE KARUNAGAPPALLY TALUK

    3     ANWAR,AGED 24 YEARS
          S/O. THANGAL KUNJU ANWAR MANZIL, PADINJATTAKKARA PO.,
          THEVALAKKARA VILLAGE KARUNAGAPPALLY TALUK

    4     ANSHAD,AGED 21 YEARS
          S/O.THANGAL KUNJU ANWAR MANZIL, PADINJATTAKKARA PO.,
          THEVALAKKARA VILLAGE KARUNAGAPPALLY TALUK

          BY ADVS.
          SRI.C.RAJENDRAN
          SRI.K.R.RANJITH


RESPONDENT/RESPONDENTS:
     1     RAJENDRAN, S/O. DIVAKARAN, ASWATHY BHAVAN,
           SASTHAMCOTTA PO.,KUNNATHOOR -690520

    2     SALIH, AGED 40 S/O. IBRAHIMKUTTY
          PUTHUMANGALATHU VEEU, PANAPATTI, SASTHAMCOTTA

    3     THE BRANCH MANAGER
          CHOLA M.S GENERAL INSURANCE MOTOR POLICY;
          KOCHI BRANCH. ERNAKULAM-682016

          BY ADVS.
          SRI.MATHEWS JACOB (SR.)
          SRI.P.JACOB MATHEW

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 20.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 1861 OF 2016       ..2..




                        JUDGMENT

The notice to the 1st respondent is returned with the

endorsement "unclaimed". The 1st respondent in this

appeal is the owner of the offending vehicle. It is

admitted by the Insurer that the vehicle was covered with

a valid insurance policy at the time of the accident.

Therefore, service of notice to the 1st respondent is

dispensed with.

2. The Appellants are the wife and children of

deceased Thangal Kunju, who died in an accident on

31.10.2012. The parties in this appeal are referred to as

per their status in the claim petition. The deceased was

driving an autorickshaw bearing Reg.No KL.24/D-2495

through Bharanikavu - Thamarakkulam public road and it

collided with an autorickshaw bearing Reg.No.KL-61/542,

driven by the 2nd respondent and the deceased was MACA NO. 1861 OF 2016 ..3..

succumbed to the injuries sustained in the said accident.

According to the petitioners, the accident happened due

to the negligent driving of the autorickshaw by the 2 nd

respondent. The petitioners claimed an amount of Rs.

15,00,000/- towards compensation.

3. The respondents 1 and 2, the owner and driver

respectively of the autorickshaw with Reg.No. KL-61/542

remained ex-parte. The 3rd respondent insurance

company entered appearance and filed written statement

and admitted that the autorickshaw with Reg.No. KL-

61/542 was covered with a valid insurance policy as on

the date of accident but contended that the 2nd

respondent was not having a valid driving license at the

time of accident. It was also contended that the

compensation claimed is excessive.

4. The Tribunal found that the accident happened

due to the negligent driving of the autorickshaw bearing MACA NO. 1861 OF 2016 ..4..

Reg.No. KL-61/542 by the 2nd respondent. The Tribunal

awarded Rs.9,19,000/- as total compensation with 9%

interest per annum from the date of the petition. The

insurance company was directed to satisfy the award.

Since the 2nd respondent did not produce the driving

license in spite of the direction of the Tribunal, the

Tribunal held that the 3rd respondent insurer is entitled to

reimburse the amount from the respondents 1 and 2.

5. The petitioners have preferred this appeal

contending that the amount of compensation awarded is

inadequate. The Tribunal awarded compensation under

the following heads.

  Sl.            Heads                   Amount       Amount
  No.                                    claimed    awarded (in
                                                       Rs.)


   1.   Loss of earnings from 13,06,000             Nil
        13.10.12 to till time

   2.   Partial loss of earnigs    Nil             Nil

   3.   Transport to hospital       4,000          1,000
 MACA NO. 1861 OF 2016            ..5..


   4.    Extra nourishment         3,000      Nil

  5.     Damage to      clothing 2,000       1,000
         and article

   6.    Others: 1. Medicine 25,000          Nil
         and bystanders etc.

         2. Funeral expenses
                                  10,000     25,000
         3. Loss of consortium
                                  50,000     1,00,000
         4. Love and affection
                                  50,000     Nil

   7.    Compensation for pain               Nil
         and sufferings
                                   50,000
   8.    Compensation     for                 Nil
         continuing permanent
         disability

   9.    Compensation for loss               Nil
         of earning power

10. Compensation for loss Not claimed 7,92,000 of dependency

Total 15,00,000/- 9,19,000

6. The petitioners contend that the Tribunal went

wrong in taking the monthly income of the deceased as MACA NO. 1861 OF 2016 ..6..

Rs.8,000/-. The deceased was an autorickshaw driver

and therefore, as per the decision reported in

Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Company Limited [2011 (13)

SCC 236 : AIR 2011 SC 2951], the notional monthly

income of the deceased has to be taken as Rs.8,500/-.

The deceased was aged 52 years and self employed.

Therefore, the Tribunal has rightly taken the multiplier as

'11'. In view of re-fixation of monthly income as Rs.8500,

the loss of dependency income by adding 25% towards

future prospects is recalculated as [8500+2125=10625].

Hence, the compensation for loss of dependency would

come to 10625 x 12 x 11 - ¼ =10,51,875/- Accordingly, I

re-fix the compensation awarded under the head loss of

dependency as Rs.10,51,875/- [10,625x12x11x3/4]. The

Tribunal has granted Rs.7,92,000/- under this head and

the petitioners are entitled for an additional amount of MACA NO. 1861 OF 2016 ..7..

Rs.2,59,875/- [10,51,875 - 7,92,000] under this head.

7. With regard to the compensation awarded under

the head loss of consortium, only Rs.1,00,000/- has been

awarded. The petitioners are entitled for an amount of

Rs.1,60,000/- under this head (40,000x4). Therefore,

Rs.60,000/- [1,60,000 - 1,00,000] more is awarded

under the head loss of consortium.

8. As regards the funeral expenses, an amount of

Rs.25,000/- has been awarded, for which the petitioners

are entitled only for Rs.15,000/-. Therefore, an amount of

Rs.10,000/- [25,000-15,000] has to be deducted from

the compensation awarded under the said head.

9. No amount is awarded under the head loss of

estate. The petitioners are entitled for Rs.15,000/-

towards compensation for loss of estate.

Accordingly, the appeal is allowed in part. The

petitioners are awarded an additional compensation of MACA NO. 1861 OF 2016 ..8..

Rs.3,24,875/- [Rupees three lakhs twenty four

thousand eight hundred and seventy five only]

[2,59,875 + 60,000 + 15,000 - 10,000 ] with interest

@ 9% per annum from the date of petition till realisation.

The 3rd respondent insurer shall deposit the additional

compensation granted in this appeal along with interest

before the Tribunal within a period of two months from

the date of receipt of a certified copy of this judgment.

Sd/-

MURALI PURUSHOTHAMAN JUDGE SB/23/11/2021