Kerala High Court
Seetha vs * 1. Ottakath Shamsudheen
Author: V Shircy
Bench: C.K.Abdul Rehim, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
WEDNESDAY, THE 15TH DAY OF FEBRUARY 2017/26TH MAGHA, 1938
MACA.No. 2419 of 2010 ( )
--------------------------
AGAINST THE AWARD DATED 02.02.2010 IN OPMV 578/2006
OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI.
APPELLANT(S)/PETITIONERS:
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1. SEETHA, 68 YEARS,
KALLIVALAPPIL HOUSE, PUNCHAKKODE, THENKARA P.O.,
MALAPPURAM DISTRICT.
2. RAJI, 32 YEARS, W/O.PONNU(LATE),
PUNCHAKKODE, THENKARA P.O., MALAPPURAM DISTRICT.
3. KISHORE, 13 YEARS,
S/O.PONNU.
4. ANANTHU, 9 YEARS,
S/O.PONNU.
5. AJUSHA, 7 YEARS,
D/O.PONNU,
(MINOR APPELLANTS ARE REPRESENTED BY MOTHER 2ND APPELLANT)
BY ADV. SRI.P.SAMSUDIN
RESPONDENT(S):
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* 1. OTTAKATH SHAMSUDHEEN,
S/O.ABDURAHIMAN, OTTAKATH HOUSE,, THEKKUMPARAMBU,
PANTHALLOOR AMSOM,, MALAPPURAM DISTRICT-676 521. [DELETED]
[RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE
APPELLANTS AS PER ORDER DATED 25/07/2016 IN IA.2298/16 IN MACA.2419/10.]
2. O.T.ABDULLA, S/O.MAMMAD KUTTY,
OTTAKATH HOUSE, KIZHAKKUMPARAMBU, PANTHALLOOR AMSOM,
MALAPPURAM DISTRICT-676 521.
3. THE NEW INDIA ASSURANCE CO. LTD.,
VARIKKODAN BUILDING, NILAMBUR ROAD, MANJERI-676 121.
R3 BY ADV. SRI.P.G.GANAPPAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
15-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SKV
C.K.ABDUL REHIM
&
SHIRCY V,JJ
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M.A.C.A. No.2419 of 2010
=======================
Dated this the 15th day of February, 2017
JUDGMENT
Shircy V., J The legal heirs of the deceased involved in a road traffic accident which took place on 13.03.2006 dissatisfied with the quantum of compensation awarded to them, have come up with this appeal.
2. The facts of the case is as follows:-
On 13.03.2006 at about 7.30. am, the deceased who was a driver of a vehicle while unloading goods from his lorry along with his cleaner was hit down by a goods Autorikshaw bearing No.KL 10-D- 9623 , thereby causing grievous injuries to him. He was rushed to the hospital, but he has succumbed to the injuries, while undergoing treatment in the District Hospital, Manjeri. The legal heirs of the appellants have been granted only an mount of Rs.3,20,500/- as compensation against their claim for Rs.5,00,000/-. M.A.C.A.No.2419 of 2010 2
3. The respondents 1 and 2 though denied their liability, the 3rd respondent admitted the policy of the offending vehicle. The finding of the Tribunal regrading negligence is also not in dispute. But the insurance company had contended that the 1st respondent, who is the driver of the vehicle had no valid driving license. Hence, the company is not liable to pay compensation to the legal heirs of the deceased as the conditions of policy have been violated.
4. We heard the learned counsel for the appellants as well as the learned counsel for the Insurance Company.
5. The deceased was a driver, aged only 36 years, at the time of his death. The learned counsel for the appellants had argued that though the deceased was earning a monthly income of Rs.8,000/-, the Tribunal had fixed his monthly income as Rs.3,000/- and loss of dependency was assessed on that basis. According to him, it is on the lower side, but it is to be noted that no evidence was adduced to prove the income of the deceased. But it is revealed from Ext.A1, copy of the FIR as well as Ext.B1 the copy of the charge sheet , that the deceased was a driver by profession. So, we feel that the income assessed by the Tribunal M.A.C.A.No.2419 of 2010 3 to compute loss of dependency is definitely on the lower side and we fix it as Rs.5,000/- per month. So also, we find that the amount of compensation awarded under various heads are also on the lower side and that have to be enhanced, taking into consideration of the entire facts involved in this case. It is to be noted that as funeral expenses, the Tribunal has granted only Rs.2,000/- and as it is on the lower side we enhance it as Rs 15,000which would entitle the appellants to get a further amount of Rs.13,000/- under that head. As compensation under the head pain and suffering only an amount of Rs.5,000/- has been granted. Even though, death of the deceased was on the same day it was not instantaneous So, an amount of Rs.10,000/- has granted which would entitle the appellants to get a further amount of Rs.5,000/-. The legal heirs of the deceased are the mother, wife and three minor children. So under the head love and affection only an amount of Rs.5,000/- was granted by the Tribunal .Definitely it is on the lower side and we enhance it as Rs.1,00,000/-, which would entitle the appellants to get a further amount of Rs.95,000/-. So also, as loss of consortium only Rs.5,000/- has been granted. Considering the judicial precedents, a conventional amount of Rs.1,00,000/- has to be granted as loss of consortium and it would M.A.C.A.No.2419 of 2010 4 entitle the appellants to get a further amount of Rs.95,000/- under that count. The deceased was only 36 years at the time of death and so the correct multiplier is 15. In total, the legal heirs are five in number. So, only 1/4th has to be deducted as personal expenses of the deceased and hence, the amount to be awarded as loss of dependency has to be re-worked as Rs.6,75,000/- [5000x12x3/4x15] b