Kerala High Court

Haseena vs New India Assurance Company Limited on 6 November, 2024

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
             THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
                        MACA NO. 1941 OF 2021
 AGAINST THE AWARD DATED 27.08.2020 IN O.P (MV) NO.1800 OF
        2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE


APPELLANTS/PETITIONERS:-

    1       HASEENA, AGED 41 YEARS
            W/O LATE JALALUDHEEN P.K, PULIKKALAKATH
            KANNAPPANTHODI,P.O.PERUMUGHAM,
            KALLAMPARA, FEROKE, KOZHIKODE DISTRICT-673 631.

    2       AYISHA JASA P.K.(MINOR)
            AGED 17 YEARS, D/O LATE JALALUDHEEN P.K,
            PULIKKALAKATH KANNAPPANTHODI,P.O.PERUMUGHAM,
            KALLAMPARA, FEROKE, KOZHIKODE DISTRICT-673 631.
            REPRESENTED BY MOTHER HASEENA M (1ST APPELLANT)

    3       JAMEELA P.K, AGED 67 YEARS, W/O PAREECHUTTY ,
            PULIKKALAKATH KANNAPPANTHODI,P.O.PERUMUGHAM,
            KALLAMPARA, FEROKE, KOZHIKODE DISTRICT-673 631.


            BY ADVS.
            R.SUDHISH
            M.MANJU

RESPONDENT/3RD RESPONDENT :-

            NEW INDIA ASSURANCE COMPANY LIMITED,
            REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE,
            FIRST FLOOR, POOTHERI BUILDING, RAILWAY STATION
            ROAD, FEROKE, KOZHIKODE-673 631.
 MACA NO. 1941 OF 2021

                             2

                                            2024:KER:82682

          BY ADV RAJAN P.KALIYATH

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
ON 06.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 1941 OF 2021

                                    3

                                                         2024:KER:82682

                                 JUDGMENT

The legal heirs of one Jalaludheen, who died in a motor accident on

29.03.2018 are the appellants.

2. The case of the claimants is that Jalaludheen was a painter

working under a contractor with a monthly income of ₹24,000/-. The late

Jalaludheen was riding his motorcycle bearing Registration No.KL-11-AB-

683 from Feroke to Kallampara and when he reached near Alaija Rubber

Factory, a Tipper Lorry bearing Registration No.KL-55-E-7600, driven by

the 2nd respondent in a rash and negligent manner hit against the

motorcycle, thereby causing grievous injuries to Jalaludheen, who later

succumbed to the injuries on 31.03.2018. The claimants contended that

Jalaludheen was a painter and receiving a monthly income of ₹24,000/-.

However, no evidence was produced to substantiate their claim. In the

above circumstances, the tribunal fixed the notional income at ₹15,000/- MACA NO. 1941 OF 2021

2024:KER:82682

and granted following compensations :-

Sl.

             Head of Claim            Amount      Amount
No
                                      claimed     awarded

1     Transport to hospital            10,000      5,000

2     Damage to clothing and            2,500        0
      articles

3     Medical expenses                 35,000        0

4     Extra nourishment                10,000        0

5     Funeral expenses                     0      15,000

6     Compensation for        shock   1,00,000    25,000
      pain and suffering

7     Compensation for loss of        2,00,000       0
      love and affection

8     Loss of estate                  5,00,000    15,000

9     Compensation for future         30,00,000      0
      loss of contributions from
      the deceased

10    Compensation for loss of        1,00,000    1,20,000         (40,000X3)
      consortium
 MACA NO. 1941 OF 2021



                                                          2024:KER:82682



11    Compensation for loss of             0      21,00,000    (12500X12X14)
      dependency

12    Compensation for mental        2,00,000        0
      agony caused to the
      claimants due to the sudden
      tragic death of the deceased

13    Future prospect                10,00,000       0

      Total                          Limited to   22,80,000
                                     35,00,000

3. Heard, Smt.Manju M - learned counsel appearing for the

appellants and Sri.Rajan P Kaliyath - learned Standing Counsel appearing

for the Insurance Company.

4. Smt.Manju M, the learned counsel appearing for the appellants

submitted that since the deceased was a painter working under a

contractor, he ought to have been considered as a semi skilled worker and

accordingly, the notional income ought to have been fixed. She relied on MACA NO. 1941 OF 2021

2024:KER:82682

the judgment of the Hon'ble Supreme Court in Manusha Sreekumar and

others Vs. United Insurance Company Limited [(2022) SCC Online SC

1441], wherein the Hon'ble Supreme Court has adopted the wages

prescribed under the notification issued by the State Government in terms

of the provisions contained under the Minimum Wages Act, 1928.

Therefore, according to the learned counsel, in the absence of any

concrete evidence, the tribunal ought to have relied on the notification for

fixing the notional income.

5. On the other hand, the learned Standing Counsel appearing for

the insurance company submitted that even going by the principles laid

down by the Supreme Court in Ramachandrappa Vs. Manager, Royal

Sundaram Alliance Insurance Company Limited (AIR 2011 SC 2951), the

claimants were entitled to have the notional income of the deceased fixed

at ₹11,500/-, whereas the tribunal has fixed the same at ₹15,000/-, which is MACA NO. 1941 OF 2021

2024:KER:82682

just and fair compensation. The learned counsel further submitted that

the occupation and income of the deceased were not proved and therefore,

the tribunal was not justified even fixing the notional income at ₹15,000/-.

However, considering the fact that there is no challenge on the side of the

insurance company, the learned counsel submitted that the amount of

₹15,000/- fixed by the tribunal is perfectly justified.

6. I have considered the rival submissions raised across the bar.

7. The learned counsel for the appellants, Smt. Manju M contended

that, going by the principles laid down by the Hon'ble Supreme Court in

Manusha Sreekumar (supra), the notional income of the deceased has to

be fixed in terms of the notification issued by the State of Kerala under the

provisions of the Minimum Wages Act, 1948. The learned counsel placed a

copy of notification No.E1/181/2018-LBRD dated 21.10.2018 issued by the

Government of Kerala, Labour and Skills (E) Department. A perusal of the MACA NO. 1941 OF 2021

2024:KER:82682

said notification shows that for a painter, the basic wage is fixed at ₹700/-.

Assuming a person works 26 days, the notional income of the deceased

Jalaludheen ought to have been fixed at ₹18,200/- (700x26).

8. However, Sri. Rajan P Kalyath , the learned counsel appearing for

the insurance company pointed out that the notification shown by the

learned counsel for the appellants is only a draft notification and it came

into effect only in the year 2019 and therefore, it cannot be considered.

This Court finds considerable force in the argument of the learned counsel

for the insurance company.

9. However, having said so, even if this Court is not inclined to fix the

notional income of the deceased Jalaludeen in terms of the 2018

notification. This Court cannot remain oblivious to the fact that in the

earlier notification, namely, G.O(P) No 56/2017/fin dated 28-4-2017, the

rate fixed is 630/- per day and the minimum wage for the month is fixed MACA NO. 1941 OF 2021

2024:KER:82682

at Rs 17,025/-.

10. In New India Assurance Company Ltd. v. Divya and others [2021

KHC 573], a learned Single Bench of this Court while dismissing the appeal

preferred by the insurance company confirmed the award passed by the

Motor Accidents Claims Tribunal fixing the notional monthly income of a

maison at ₹25,000/- during the year 2014, as held that while fixing the

notional income, the court and tribunal ought to follow the ground reality

prevailing in the scale. It was further held that the daily wage of such

employees ranges between ₹750/- to ₹850/-.

11. In the light of the principles laid down by this Court in Divya

(supra) and also in terms of the notifications issued by the State

Government under the provisions of the Minimum Wage Act, 1948, this

Court is of the considered view that, it would be perfectly justified in

fixing the notional income of the deceased Jalaludheen at ₹17,000/- in the MACA NO. 1941 OF 2021

2024:KER:82682

light of the notification prevailing at the time of the accident. The

claimants are also entitled to get future prospects on the notional income

thus fixed.

12. On other aspects, the award of the tribunal is perfectly justifiable

and no interference is called for.

In the result, the appeal is allowed. The appellants/claimants are

entitled to have the enhanced compensation under the head loss of

dependency.

Sl.

           Head of Claim      Amount          Amount        Modified in   Total compensation
No
                              claimed      awarded by the    appeal
                                              tribunal


1       Loss of dependency       0           21,00,000        7,66,500          28,66,500
                                                            (28,66,500-    (22,750x12x14x3/4)
                                                             21,00,000)       17000X25%=
                                                                                 22,750/-
        TOTAL                                21,00,000       7,66,500           28,66,500

Accordingly, the appellants/claimants are awarded an additional MACA NO. 1941 OF 2021

2024:KER:82682

compensation of ₹7,66,500/- (Rupees seven lakhs sixty six thousand five

hundred only) over and above the compensation awarded by the Tribunal

with interest @ 9% per annum from the date of petition till realization

together with proportionate costs. The Insurance Company is directed to

deposit the aforesaid amount within a period of 30 days from the date of

receipt of a copy of this judgment as per the procedure prescribed. Since

the enhanced amount awarded is more than actually claimed by the

appellants before the tribunal, they are liable to pay court fee on the

additional amount. Hence, the tribunal is directed to deduct the court fee

before releasing the amount to the appellants.