Kerala High Court

Muhammed Muhiyudheen vs The Oriental Insurance Company ... on 14 September, 2021

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
           THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
  TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943
                     MACA NO. 3616 OF 2019
AGAINST THE AWARD IN OP(MV) 1888/2017 DATED 14-02-2019 OF MOTOR
             ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE.


APPELLANTS/PETITIONERS   :

    1     MUHAMMED MUHIYUDHEEN, S/O.KAMALUDHEEN,AGED 49 YEARS.

    2     AHAMMED MARIYAM,W/O.MUHAMMED MUHIYUDHEEN,
          AGED 47 YEARS.

    3     MIHAJUM, AGED 16 YEARS, (MINOR),
          REP.BY HIS FATHER MUHAMMED MUHIYUDHEEN,

          ALL ARE RESIDING AT MALAPPURAM PARAMBA HOUSE,
          CHALATTY, CHERUVANNUR, NALLALAM.P.O., KOZHIKODE.

          BY ADV ZUBAIR PULIKKOOL.



RESPONDENT/ RESPONDENT NO.3   :

          THE ORIENTAL INSURANCE COMPANY LIMITED,
          JASEELA COMPLEX BYPASS JUNCTION,
          NILAMBOOR ROAD, MANJERI, PIN-676 121.

          BY ADVS.
          DR.ELIZABETH VARKEY
          SRI.JITHIN SAJI ISAAC



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 14.09.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
    MACA No.3616 of 2019             2




                        A.BADHARUDEEN, J.
               ------------------------------------------------
                       MACA No.3616 of 2019
             ----------------------------------------------------
            Dated this the 14th day of September, 2021


                           JUDGMENT

This appeal is at the instance of the original petitioners in OP(MV)

No.1888 of 2017 on the file of the Motor Accidents Claims Tribunal,

Kozhikode. The petitioners, who are aggrieved by the award dated 14-

02-2019 in the above matter have preferred this appeal, arraying the

third respondent before the Tribunal as the sole respondent herein.

2. Parties in this appeal will be referred to as to their status

before the Tribunal for brevity and convenience.

3. Precisely, the case of the petitioners is that on 13-7-2017 at

about 9.45 am., one Mujahim, the son of petitioners 1 and 2 met with

an accident at Mankadavu and in consequence thereof he died.

Attributing negligence against the second respondent, the driver of the

bus, bearing No.KL-18-D-7281, the petitioners claimed Rs.20 Lakh as

compensation.

4. The third respondent insurance company filed a written

statement admitting the policy and disputing the liability. Negligence

alleged against the second respondent is also denied. Quantum of

compensation is also denied. Respondents 1 and 2 also filed a written

statement in tune with the written statement filed by third respondent.

5. The Tribunal recorded the evidence of PW1 and marked

Exts.A1 to A6. Thereafter, an amount of Rs.17,22,000/- was awarded.

The petitioners seek increase in the award.

6. The learned counsel for the petitioners would submit that

the Tribunal fixed the monthly income of the deceased as Rs.10, 000/-

though a specific case was put stating that the petitioner was employed

as a salesman in Appollo Gold, Kozhikode, having an income of

Rs.18,000/- per month at the time of accident. It is submitted by the

learned counsel for the petitioners further that the Tribunal fixed only

notional income though evidence supporting this contention was given

by the mother, who was examined as PW1. The learned counsel has also

given emphasis to the FIS attached to Ext.A1 FIR showing the status of

the deceased as a person employed in Appollo Gold.

7. Refuting the submission, the learned counsel for the

insurance company would submit that though the petitioners claimed

the job of the deceased as a salesman in Appollo Gold, no evidence in

this regard was let in other than the oral version of PW1. Therefore,

nothing more than Rs.10,000/- is liable to be granted in this case.

8. On scrutiny of the evidence available, Rs.18,000/- per

month was claimed by the petitioners as the income of the deceased on

ascertaining that he was a salesman in Appollo Gold, Kozhikode.

Though while giving evidence as PW1, the second petitioner, the

mother, had given evidence in this regard, the best evidence to prove

the income of the deceased by getting salary certificate from Appollo

Gold or by examining anybody competent to speak about the income of

the deceased was not adduced. Having noticed the above fact, the

Tribunal fixed the monthly income as Rs.10,000/-. In fact, cogent and

convincing evidence to prove the income of Mujahim at the time of

death was not available. However, the age of Mujahim as 21 at the time

of death was proved. Only oral evidence of PW1 and the recitals in the

FIS are available to prove the job of Mujahim as Salesman in Appollo

Gold. Then also, the income fixed not proved. Taking note of the above

facts, in the absence of convincing evidence to prove his income, I am

inclined to fix the same at Rs.12,000/- per month, instead of

Rs.10,000/- fixed by the Tribunal.

9. Thus the loss of dependency is required to be recalculated as

under by giving 40% addition as settled in National Insurance

Company v. Pranay Sethi and Ors. [(2017) 16 SCC 680]. Such

amount is as follows :

Rs.12,000 x 40% x ½ x 12 x 18 = Rs.18,14,400/-

Thus Rs.18,14,400 - Rs.15,12,000/- = 3,02,400/- is granted

10. It is submitted by the learned counsel for the insurance

company that Rs.75,000/- granted under the head love and affection

and Rs.25,000/- granted under the head pain and suffering are not

liable to be granted. This submission appears to be convincing.

Following the ratio in Pranay Sethi's case (supra), no amount under

the head love and affection is liable to be granted. Therefore,

Rs.75,000/- granted under this head is liable to be reduced. As per the

ratio of the decision in United Indian Insurance Co.Ltd. v.

Satinder Kaur @ Satwinder Kaur & Ors.(2020(3) KHC 760),

no amount towards pain and sufferings is also liable to be granted.

Therefore, Rs.25,000/- granted under this head is liable to be reduced.

Thus, Rs.1 Lakh granted under the above heads is liable to be reduced.

Thus the modified award is passed accordingly.

Sl. Head of claim                       Amount        Modified amount
No.                                     awarded (Rs.) in Appeal (Rs.)

1     Loss of dependency                15,12,000/-   18,14,400/-





2     Love and affection                   75,000/-             -

3     Pain and suffering                   25,000/-             -

4     Parental consortium                  80,000/-      80,000/-

5     Loss of estate                       15,000/-      15,000/-

6     Funeral expenses                     15,000/-      15,000/-

      Total                                17,22,000/-   19,24,400/-




              In the result:


      a)      This M.A.C.A is allowed in part.

      b)      Modified award passed to the tune of Rs.19,24,400/-

(Rupees Nineteen Lakh twenty four thousand and four

hundred only) to be paid by the 3rd respondent jointly and severally

with 8% interest granted by the Tribunal and the amount shall be

deposited by the insurance company being the indemnifier of the

insured.

c) The 3rd respondent is also directed to deposit Rs.19,373/-

being the court fee payable in this case in favour of MACT, Kozhikode

within a period of two months from this date.

d) The 3rd respondent is directed to deposit the entire balance

amount of compensation in the names of the petitioners as per the

apportionment ordered by the Tribunal, within a period of two months

from this date. On deposit, the petitioners 1 and 2 are at liberty to