Nabeesa Beevi and ors Vs. Johnson and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1096190
SubjectMotor Vehicles
CourtKerala High Court
Decided OnOct-22-2013
JudgeHonourable Mr.Justice S.Siri Jagan
AppellantNabeesa Beevi and ors
RespondentJohnson and Others
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice s.siri jagan & the honourable mr. justice k.ramakrishnan tuesday,the22d day of october201330th aswina, 1935 maca.no. 1480 of 2009 ( ) -------------------------- op(mv)no.1531/2004 of motor accidents claims tribunal, alappuzha ------------------------------------------- appellant(s)/petitioners14: -------------------------------------------------------- 1. nabeesa beevi,w/o.deceased b.koya, surumi nivas, civil station ward, alappuzha.2. k.muhammed fazil,surumi nivas, civil station ward, alappuzha.3. k.muhammed afsal,surumi nivas, civil station ward, alappuzha.4. k.surumi,surumi nivas,civil station ward, alappuzha. by advs.sri.s.sanal kumar smt.bhavana velayudhan respondent(s)/respondents/5th petitioner: ---------------------------------------------------------------------------------- 1. johnson,s/o.joseph,thunduvila puthenveedu, pooyappally.p.o, kottarakkara, kollam district.2. managing partner,m/s.kaikara construction co., kaithavaram bunglow, kanakath mukku,kollam.3. the manager,national insurance co.ltd, divisional office, kollam.4. h.aysha beevi,m/o.b.koya,surumi nivas, civil station ward, alappuzha. r3 by adv. sri.rajan p.kaliyath this motor accident claims appeal having been finally heard on2210-2013, the court on the same day delivered the following: sts s.siri jagan & k.ramakrishnan, jj.================== m.a.c.a.no. 1480 of 2009 ================== dated this the 22nd day of october, 2013 judgment s.siri jagan, j.: the wife and children of deceased koya are the appellants herein. koya died in an accident caused by the negligent driving of a vehicle owned by the 2nd respondent, driven by the 1st respondent and insured with the 3rd respondent. the appellants, along with the mother of deceased koya, filed o.p(m.v.).no. 1531/2004 before the motor accidents claims tribunal, alappuzha, claiming compensation for the death of koya. 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 compensation for pecuniary loss 308,000.00 2 compensation for loss of love and affection 10,000.00 3 compensation for loss of consortium to the 1st appellant 10,000.00 4 compensation for pain and suffering 10,000.00 5 ambulance charge 2,000.00 6 funeral expenses 3,000.00 total 3,43,000.00 m.a.c.a.1480/09 - :2. :- dissatisfied with the quantum of compensation awarded by the tribunal, the wife and children of koya have filed this appeal, with the mother of koya as the 4th respondent.2. the first contention of the appellants is that after finding that the appellants had produced ext.a8 salary certificate certifying the monthly salary of the deceased as ` 9,496/-, the tribunal accepted only ` 7,500/- for calculating loss of dependency for three years of his balance service, which is on the lower side. for the period after retirement also, for assessing loss of earning capacity, the tribunal fixed monthly income only as ` 2,000/- which, during the year 2004, is on the lower side. consequently, the appellants are entitled to corresponding increase in compensation for loss of dependency before and after the date of retirement, is the contention raised. it is further submitted that the compensation for loss of consortium of the 1st appellant, who was aged 47 years at the time of death of her husband, is on the lower side. it is the further contention of the appellants that no amount has been awarded towards loss of estate. they seek enhancement of compensation under all heads.3. the learned counsel for the insurance company would m.a.c.a.1480/09 - :3. :- argue to sustain the impugned award.4. we have considered the rival contentions in detail.5. the tribunal has accepted ext.a8 salary certificate issued by the accounts officer of the district police office, alappuzha, wherein the salary of the deceased was certified as ` 9,496/-. but the tribunal took the income of the deceased only as ` 7,500/- after deduction of contribution for provident fund etc. we are of opinion that the contribution to the provident fund is part of the salary of the deceased and his income itself. likewise, other deductions are also part of his income and ultimately, enures to his benefit at the time of his retirement. as such, that cannot be excluded from the income of the deceased for the purpose of calculating loss of dependency. the deceased was 52 years old at the time of death on 8.7.2004. had he been alive, he would have retired at the age of 55 years. therefore, for three years he would have continued to get the salary of ` 9,500/-. per month. therefore, loss of dependency for three years would be ` 9,500 x 12 x 3 x 2/3, which would come to ` 2,28,000/-. we are also of opinion that in 2004, the deceased could have, after his retirement earned at least ` 3000/- per m.a.c.a.1480/09 - :4. :- month from other avocations, which he could have engaged himself in. for the balance 8 years of the multiplier of 11, which is applicable to a person aged 52 years, the loss of dependency would be ` 3000 x 12 x 8 x 2/3 = ` 1,92,000/-. total compensation for loss of dependency would be ` 4,20,000/-. only ` 3,08,000/- has been awarded by the tribunal. the difference would be ` 1,12,000/-. we are inclined to increase the compensation for loss of consortium of the 1st appellant to ` 30,000/- from ` 10,000/- awarded by the tribunal. no amount has been awarded towards loss of estate. we fix ` 10,000/- as compensation under this head. altogether, over and above what has been awarded by the tribunal, the appellants would be entitled to additional compensation of ` 1,42,000/-. that amount would carry interest at the rate of 9% per annum from the date of claim petition till date of payment. the 3rd respondent- insurance company is directed to deposit that amount also within two months. at present the 1st appellant alone would be the dependant, since other appellants are major children and therefore, the additional compensation shall be paid to the 1st appellant alone. m.a.c.a.1480/09 - :5. :- 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
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN TUESDAY,THE22D DAY OF OCTOBER201330TH ASWINA, 1935 MACA.No. 1480 of 2009 ( ) -------------------------- OP(MV)NO.1531/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA ------------------------------------------- APPELLANT(S)/PETITIONERS14: -------------------------------------------------------- 1. NABEESA BEEVI,W/O.DECEASED B.KOYA, SURUMI NIVAS, CIVIL STATION WARD, ALAPPUZHA.

2. K.MUHAMMED FAZIL,SURUMI NIVAS, CIVIL STATION WARD, ALAPPUZHA.

3. K.MUHAMMED AFSAL,SURUMI NIVAS, CIVIL STATION WARD, ALAPPUZHA.

4. K.SURUMI,SURUMI NIVAS,CIVIL STATION WARD, ALAPPUZHA. BY ADVS.SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S)/RESPONDENTS/5TH PETITIONER: ---------------------------------------------------------------------------------- 1. JOHNSON,S/O.JOSEPH,THUNDUVILA PUTHENVEEDU, POOYAPPALLY.P.O, KOTTARAKKARA, KOLLAM DISTRICT.

2. MANAGING PARTNER,M/S.KAIKARA CONSTRUCTION CO., KAITHAVARAM BUNGLOW, KANAKATH MUKKU,KOLLAM.

3. THE MANAGER,NATIONAL INSURANCE CO.LTD, DIVISIONAL OFFICE, KOLLAM.

4. H.AYSHA BEEVI,M/O.B.KOYA,SURUMI NIVAS, CIVIL STATION WARD, ALAPPUZHA. R3 BY ADV. SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON2210-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.

================== M.A.C.A.No. 1480 of 2009 ================== Dated this the 22nd day of October, 2013

JUDGMENT

S.Siri Jagan, J.: The wife and children of deceased Koya are the appellants herein. Koya died in an accident caused by the negligent driving of a vehicle owned by the 2nd respondent, driven by the 1st respondent and insured with the 3rd respondent. The appellants, along with the mother of deceased Koya, filed O.P(M.V.).No. 1531/2004 before the Motor Accidents Claims Tribunal, Alappuzha, claiming compensation for the death of Koya. 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 Compensation for pecuniary loss 308,000.00 2 Compensation for loss of love and affection 10,000.00 3 Compensation for loss of consortium to the 1st appellant 10,000.00 4 Compensation for pain and suffering 10,000.00 5 Ambulance charge 2,000.00 6 Funeral expenses 3,000.00 Total 3,43,000.00 m.a.c.a.1480/09 - :

2. :- Dissatisfied with the quantum of compensation awarded by the Tribunal, the wife and children of Koya have filed this appeal, with the mother of Koya as the 4th respondent.

2. The first contention of the appellants is that after finding that the appellants had produced Ext.A8 salary certificate certifying the monthly salary of the deceased as ` 9,496/-, the Tribunal accepted only ` 7,500/- for calculating loss of dependency for three years of his balance service, which is on the lower side. For the period after retirement also, for assessing loss of earning capacity, the Tribunal fixed monthly income only as ` 2,000/- which, during the year 2004, is on the lower side. Consequently, the appellants are entitled to corresponding increase in compensation for loss of dependency before and after the date of retirement, is the contention raised. It is further submitted that the compensation for loss of consortium of the 1st appellant, who was aged 47 years at the time of death of her husband, is on the lower side. It is the further contention of the appellants that no amount has been awarded towards loss of estate. They seek enhancement of compensation under all heads.

3. The learned counsel for the insurance company would m.a.c.a.1480/09 - :

3. :- argue to sustain the impugned award.

4. We have considered the rival contentions in detail.

5. The Tribunal has accepted Ext.A8 salary certificate issued by the Accounts Officer of the District Police Office, Alappuzha, wherein the salary of the deceased was certified as ` 9,496/-. But the Tribunal took the income of the deceased only as ` 7,500/- after deduction of contribution for provident fund etc. We are of opinion that the contribution to the provident fund is part of the salary of the deceased and his income itself. Likewise, other deductions are also part of his income and ultimately, enures to his benefit at the time of his retirement. As such, that cannot be excluded from the income of the deceased for the purpose of calculating loss of dependency. The deceased was 52 years old at the time of death on 8.7.2004. Had he been alive, he would have retired at the age of 55 years. Therefore, for three years he would have continued to get the salary of ` 9,500/-. per month. Therefore, loss of dependency for three years would be ` 9,500 x 12 x 3 x 2/3, which would come to ` 2,28,000/-. We are also of opinion that in 2004, the deceased could have, after his retirement earned at least ` 3000/- per m.a.c.a.1480/09 - :

4. :- month from other avocations, which he could have engaged himself in. For the balance 8 years of the multiplier of 11, which is applicable to a person aged 52 years, the loss of dependency would be ` 3000 x 12 x 8 x 2/3 = ` 1,92,000/-. Total compensation for loss of dependency would be ` 4,20,000/-. Only ` 3,08,000/- has been awarded by the Tribunal. The difference would be ` 1,12,000/-. We are inclined to increase the compensation for loss of consortium of the 1st appellant to ` 30,000/- from ` 10,000/- awarded by the Tribunal. No amount has been awarded towards loss of estate. We fix ` 10,000/- as compensation under this head. Altogether, over and above what has been awarded by the Tribunal, the appellants would be entitled to additional compensation of ` 1,42,000/-. That amount would carry interest at the rate of 9% per annum from the date of claim petition till date of payment. The 3rd respondent- insurance company is directed to deposit that amount also within two months. At present the 1st appellant alone would be the dependant, since other appellants are major children and therefore, the additional compensation shall be paid to the 1st appellant alone. m.a.c.a.1480/09 - :

5. :- 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