Kerala High Court
Fathima vs Ajithkumar on 29 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
MACA NO. 935 OF 2016
AGAINST THE AWARD IN OPMV 81/2011 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL , PALAKKAD, PALAKKAD
APPELLANTS/PETITIONERS:
1 FATHIMA,W/O BASHA,AGED 52 YEARS
KATTAKKALAM VEEDU,CHULLIMADA,KANJIKODE,
PALAKKAD.
2 RAFIYA, AGED 32 YEARS
W/O.KASIM,KATTAKKALAM VEEDU,CHULLIMADA,
KANJIKODE, PALAKKAD.
BY ADV SRI.BINOY VASUDEVAN
RESPONDENT/S:
1 AJITHKUMAR, AGED 34 YEARS
S/O.BALAN,MANGALATHU VEEDU, MALAYATTOOR POST,
KALADI,ERNAKULAM DISTRICT.
2 SHIJU.K.S, AGED 36 YEARS
S/O.SUKUMARAN,KIZHAKKAPURATHU KUDI VEEDU,
CHAKKUKETTIMALA,MALAYATTOOR POST,
KALADI, ERNAKULAM DISTRICT.
3 THE NEW INDIA INSURANCE CO.LTD
REPRESENTED BY BRANCH MANAGER,
KALAMASSERY BRANCH OFFICE, PATHICHERIL
GARDENTS,CHANGAMPUZHA NAGAR POST,
COCHIN,ERNAKULAM.
4 RAMACHANDRAN.V.S
48/1544,B.MITHUNAM,ST.ANTONY'S ROAD,
ELAMAKKARA, KOCHI,ERNAKULAM DISTRICT.
BY ADVS.
JOHN JOSEPH VETTIKAD
C.JOSEPH JOHNY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO. 935 OF 2016 ..2..
JUDGMENT
The claimants in O.P.(MV)No. 81/2011 on the files of the
Motor Accidents Claims Tribunal, Palakkad has preferred
this appeal, aggrieved by the amount awarded as
compensation for the death of their mother, 70 year old
Sulekha, in a motor accident. The claimants are the
daughters of deceased Sulekha. Sulekha sustained injuries
when she was hit by a car bearing Registration No.KL-
07/BD/3085, driven by the 2nd respondent and owned by the
1st respondent. The 3rd respondent is the insurer of the said
vehicle. The accident had happened on 15.06.2010 at 12.15
p.m., when she was walking through the mud road of
Palakkad-Coimbatore National Highway 47. Though she was
taken to the District Hospital, Palakkad, she succumbed to
the injuries at the hospital. The claimants filed a claim
petition under Section 166 of the Motor Vehicles Act,
claiming an amount of Rs.6,46,000/-, which was limited to
MACA NO. 935 OF 2016 ..3..
Rs.5,00,000/-. Respondents 1 and 2 remained ex parte in the
proceedings. Exts.A1 to A11 were marked from the side of
the claimants.
2. The Tribunal found that the accident happened due
to the negligent driving of the vehicle by the 2 nd respondent.
The Tribunal further found that the vehicle was validly
insured with the 3rd respondent on the date of accident. A
total amount of Rs.1,20,000/- with 9% interest from the date
of petition was awarded as compensation to the claimants.
According to the appellants/claimants, the amount awarded
under various heads are not adequate. They prayed for
enhancement of the compensation under various heads.
3. I have heard Sri.Binoy Vasudevan, the learned
Counsel for the appellants and Sri.John Joseph Vettikad, the
learned Standing Counsel for the 3 rd respondent Insurance
Company.
MACA NO. 935 OF 2016 ..4..
4. According to the appellants, the Tribunal went wrong
in taking Rs.2,000/- as monthly income/notional income of
the deceased for the purpose of calculating loss of
dependence. The deceased was a manual labourer and going
by the decision reported in Ramachandrappa v. Manager,
Royal Sundaram Alliance Insurance Company Limited
[2011 (13) SCC 236 : AIR 2011 SC 2951], the notional
income of a manual labourer has to be taken as Rs.4,500/-. I
find force in the submission made by the learned Counsel for
the appellant. The notional income/ monthly income of the
deceased has to be taken as Rs.4,500/- and therefore, I
have re-fixed the compensation under the head loss of
dependency as Rs.1,80,000/- [4500x12x5x2/3].
5. Under the head funeral expenses, the Tribunal has
awarded Rs.25,000/-. Going by the principles laid down in
National Insurance Company Limited v. Pranay Sethi
and Ors. [(2017) 16 SCC 680], the appellants are entitled
MACA NO. 935 OF 2016 ..5..
only to Rs.15,000/- for funeral expenses. Therefore, I re-fix
the funeral expenses as Rs.15,000/-.
6. Under the head loss of consortium, the appellants are
entitled to Rs.80,000/- [40,000x2]. However, the Tribunal
has not awarded any amount under this head. The Tribunal
has awarded Rs.10,000/- towards love and affection. Since, I
have re-fixed Rs.80,000/- under the head loss of consortium,
the amount awarded under the head loss of love and
affection has to be deducted from the head loss of love and
affection. Thus, the amount will be Rs.70,000/- (Rs.80,000-
Rs.10,000/-).
7. Towards loss of estate, the Tribunal has awarded
Rs.5,000/-. The appellants are entitled for an amount of
Rs.15,000/- under this head as per the decision in Pranay
Sethi (supra), I re-fix the amount under the head loss of
estate as Rs.15,000/- and an additional amount of
Rs.10,000/- is awarded [15,000-5000].
MACA NO. 935 OF 2016 ..6..
8. Thus, the appellants are entitled to get an additional
compensation of Rs.1,55,000/- [2,75,000-1,20,000] (Rupees
one lakh fifty five thousand only) as shown below:
Sl. Head of claim Amount Amount modified by
No. awarded by the this Court (Rs.)
Tribunal (Rs.)
1. Loss of dependency 80,000 1,80,000
2. Funeral expenses 25,000 15,000
3. Loss of consortium Nil 70,000
4. Loss of love and 10,000 Nil
affection
5. Loss of estate 5,000 10,000
Total 1,20,000 2,75,000
In the result, this appeal is allowed in part and the
appellants are awarded an enhanced compensation of
Rs.1,55,000/- (Rupees one lakh fifty five thousand only)
with interest at the rate of 9% per annum from the date of
filing of the claim petition till realisation, with proportionate
MACA NO. 935 OF 2016 ..7..
costs. 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.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
SB
