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

..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

..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

..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

..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

..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

..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/-