IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN TUESDAY, THE 27TH DAY OF AUGUST 2013 5TH BHADRA, 1935 MACA.No. 2402 of 2010 ( ) -------------------------- AGAINST THE AWARD IN OPMV 108 2008 of M.A.C.T.,KOZHIKODE DATED 18 11-2009 APPELLANT(S)/CLAIMANTS: -------------------------------------------- 1. A.ABOOBACKERKOYA, S/O.MAMMAD HAJI, AGED 4 YEARS, "RAFA" ANDIYERI, KONGANNOOR, ATHLI KOZHIKODE.
2. MUHAMMED NABEEL, S/O.A.ABOOBACKERKOYA, AGED 1 YEARS, "RAFA" ANDIYERI, KONGANNOOR, ATHLI KOZHIKODE.
3. NILFUR, AGED 1 YEARS, D/O.A.ABOOBACKERKOYA, REPRESENTED BY HER FATHERAND GUARDIAN.A.ABOOBACKERKOYA, "RAFA" ANDIYERI, KONGANNOOR, ATHLI KOZHIKODE.
4. HANAN, AGED 1 YEARS, D/O.A.ABOOBACKERKOYA, REPRESENTED BY HER FATHERAND GUARDIAN.A.ABOOBACKERKOYA, "RAFA" ANDIYERI, KONGANNOOR, ATHLI KOZHIKODE. BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT(S)/RESPONDENTS: ------------------------------------------------- 1. ALI.K.V, S/O.BAVAHAJI, KIZHAKKE VALAPPIL HOUSE, KOLATHUR P.O. KOZHIKODE TALUK-673 315.
2. ASHOKAN.N.K, S/O.NARAYANAN, NADUKKANDY HOUSE, AGED 4 YEARS NADERY AMSOM, MARADOOR DESOM, KOYILANDY TALUK KOZHIKODE.
3. THE ORIENTAL INSURANCE COMPANY LTD., IST FLOOR, KINGSWAY BUILDING, MAVOOR ROAD JUNCTION KOZHIKODE673 001. R3 BY ADV. SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-08- 2013, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.
================== M.A.C.A.No. 2402 of 2010 ================== Dated this the 27th day of August, 2013 JUDGMENT
S.Siri Jagan, J.: The appellants are the husband and children of deceased Sameera, who died in an accident caused by the negligent driving of a vehicle owned and driven by respondents 1 and 2 and insured with he 3rd respondent. They filed O.P.(M.V). No.108/2008 before the Motor Accidents Claims Tribunal, Kozhikode, claiming compensation for the death of Sameera. The Tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows: Amount Head of claim awarded ` 1 Transport 1,500.00 2 Damage to clothing 500.00 3 Funeral expenses 3,000.00 4 Loss of love and affection 10,000.00 5 Loss of estate 5,000.00 6 Loss of consortium 5,000.00 7 Loss of dependency 240,000.00 Total 2,65,000.00 Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants have filed this appeal seeking enhanced M.A.C.A.2402/10 - :
2. :- compensation.
2. The first contention of the appellants is that the deceased was a seamstress by profession earning ` 4,500/- per month, despite which, the Tribunal took only ` 2,000/- as the monthly income of the deceased, which is on the lower side. The second contention is that the 1st appellant was only 44 years at the time of the accident and, for loss of consortium, the Tribunal has awarded only ` 5,000/-, which is on the lower side. Likewise, for three children, two of whom were minors, the Tribunal has awarded only ` 10,000/- towards love and affection, which is also palpably low. Lastly, it is contended that the Tribunal has not awarded any compensation for pain and suffering of the deceased.
3. On the other hand, the learned Standing Counsel for the insurance company supports the award. It is submitted that the appellants did not adduce any evidence whatsoever regarding either the avocation or the income of the deceased. In such circumstances, the Tribunal could have only taken a notional income, which the Tribunal rightly fixed as ` 2000/-. It is further submitted that the Tribunal has assessed the compensation under other heads in the right perspective and M.A.C.A.2402/10 - :
3. :- awarded just and reasonable compensation under all heads.
4. We have considered the rival contentions in detail.
5. The accident was on 17.4.2007. It is true that the appellants did not adduce any evidence regarding the avocation or income of the deceased. However, taking into account the social conditions prevailing in 2007, we are inclined to fix the monthly income of the deceased as ` 3,000/-. If the loss of dependency is calculated on that basis, the total compensation due to the appellants for loss of dependency would be ` 3,60,000/- (` 3,000 x 12 x 15 x 2/3) instead of ` 2,40,000/- awarded by the Tribunal. The difference would be ` 1,20,000/-. We are of opinion that the compensation for loss of consortium of ` 5,000/- awarded to the 1st appellant is on the lower side. We enhance it to ` 15,000/-. Likewise, the compensation for loss of love and affection to the children is also on the lower side. We enhance the same to ` 20,000/-. We also award ` 10,000/- towards pain and sufferings of the deceased. Adding together, the appellants would be entitled to additional compensation of ` 1,50,000/- over and above what has been awarded by the Tribunal. This amount would carry interest at the rate of 9% per annum from the date of claim petition till date of payment. The M.A.C.A.2402/10 - :
4. :- 3rd respondent-insurance company is directed to deposit this amount also within two months. Out of this additional compensation, the shares of the minors shall be deposited in a fixed deposit in a nationalised bank bearing interest till they attain majority. However, it would be open to the 1st appellant to draw interest accruing on the same for using the same for the welfare of the minors. With the above modification of the impugned award of the Tribunal, this appeal is disposed of. Sd/- S.SIRI JAGAN, JUDGE Sd/- sdk+ K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. To Judge.