Jameela D/O.Late Kunhimoosa and Aysha D/O.Late Kunhimoosa and Abdulsalam D/O.Late Kunhimoosa and Naseema W/O.Late Muhammed Ashraf and Muhammed Sarthaj S/O.Late Muhammed Ashraf and Muhammed Methlaj S/O.Late Muhammed Ashraf and Abdul Vajid Methlaj S/O.Late Muhammed Ashraf and Akkamal S/O.Late Muhammed Ashraf and Muhammed S/O.Late Muhammed Ashraf V. United India Insurance Co. Ltd.

MACA/1226/2014

AI Insights

The case involves an appeal against the compensation awarded by the Motor Accidents Claims Tribunal, Vatakara, following a fatal motor vehicle accident. The deceased, Muhammed Ashraf, was a businessman and building contractor who died from injuries sustained in the accident. The appellants, comprising the deceased's family, challenged the Tribunal's decision, which had awarded a compensation significantly lower than claimed. The High Court of Kerala, upon reviewing the evidence and circumstances, found that the Tribunal had not adequately considered the deceased's actual income and other compensatory aspects such as loss of love and affection and funeral expenses. Consequently, the court increased the compensation amount and provided specific allocations for each head of claim.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 690393 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 09-10-2017
• Assessment Year: misc
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JOHN JOSEPH VETTIKAD
• Assessee Lawyers: ZUBAIR PULIKKOOL
• Keywords: Compensation; Loss of consortium; Motor Accident; Notional income; Quantum of compensation; Loss of Love and Affection; Dependency

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939 MACA.No. 1226 of 2014 () ------------------------- AGAINST THE AWARD IN OPMV 242/2011 of MACT VADAKARA DATED 03-09- 2013 APPELLANTS/PETITIONERS: ----------------------------------- 1. JAMEELA D/O.LATE KUNHIMOOSA,AGED 42 YEARS 2. AYSHA D/O.LATE KUNHIMOOSA,AGED 39 YEARS 3. ABDULSALAM D/O.LATE KUNHIMOOSA,AGED 35 YEARS (APPELLANTS 1 TO 3 ARE RSIDING AT \"ELAGANS\" NALUPURAKKAL,VATAKARA AMSOM DESOM,VATAKARA THALUK) 4. NASEEMA W/O.LATE,MUHAMMED ASHRAF,AGED 39 YEARS 5. MUHAMMED SARTHAJ S/O.LATE MUHAMMED ASRAF,AGED 20 YEARS 6. MUHAMMED METHLAJ S/O.LATE MUHAMMED ASRAF,AGED 18 YEARS 7. ABDUL VAJID METHLAJ S/O.LATE MUHAMMED ASRAF,AGED 12 YEARS 8. AKKAMAL S/O.LATE MUHAMMED ASRAF,AGED 6 YEARS 9. MUHAMMED S/O.LATE MUHAMMED ASRAF,AGED 4 YEARS (APPELLANTS 7TO 9 ARE MINORS REPRESENTED BY MOTHER AND GUARDIAN 4TH APPELLANT) (APPELLANTS 4 TO 9 ARE RESIDING AT THAZHE PEDIKKAYIL HOUSE,VATAKARA AMSOM DESOM,VATAKARA THALUK KOZHIKODE DISTRICT BY ADV. SRI.ZUBAIR PULIKKOOL MACA NO.1226/2014 2 RESPONDENT/3RD RESPONDENT: ---------------------------------------- UNITED INDIA INSURANCE CO. LTD. CHOVVA BRANCH,KALTEX JUNCTION,KANNUR 2,PIN 670 002 BY ADV. SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM & K.P.JYOTHINDRANATH, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1226 OF 2014 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of October, 2017 JUDGMENT Jyothindranath, J. In this appeal the challenge is against the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Vatakara, in O.P.(MV)No.242/2011. The facts necessary for consideration of this appeal is as follows : A motor vehicle accident occurred on 25.07.2010, in which deceased Muhammed Ashraf sustained fatal injuries and succumbed to the injuries on 29.07.2010, while undergoing treatment in the hospital. The deceased was riding his motor cycle bearing Reg.No.KL-18 E- 5765 which was knocked down by a motor car bearing Reg.No.KL 13 K 57. The mother, wife and children moved a claim petition before the Tribunal claiming a total compensation of Rs.41,80,000/- which was limited to Rs.12 lakhs. The Tribunal awarded a total compensation of MACA No.1226/2014 2 Rs.7,43,250/-. Aggrieved by the quantum of compensation, this appeal is preferred. The first claimant died after the award. 2. When the appeal came up for hearing, the learned counsel for the appellants submitted before us that the deceased was a businessman by profession. He was one of the partners in a partnership business concern of copra in the name and style as “Nariyal Traders” and was having a monthly income of Rs.25,000/-. He was also a building contractor. It is the submission that to substantiate the case of the claimants, the trade licence, building tax receipt, professional tax receipt etc. were produced. But the Tribunal considered only a notional income of Rs.4,000/- for assessment purpose. Even though it was found that he was having some business, it was further held that the legal evidence is lacking regarding the actual income. The compensation awarded on other heads like loss of consortium, funeral expenses were also on a lower side. Further, no amount awarded under the head of loss of love and affection, even though the youngest minor child was only aged one month at the time of death. 3. Learned counsel appearing for the Insurance Company MACA No.1226/2014 3 submitted before us that here is a case where no evidence was adduced to show the actual income of the deceased. Under such circumstances, a notional income of Rs.4,000/- was taken. It is also submitted before us that even though the appellants got a case that deceased was having a monthly income of Rs.25,000/-, it is to be remembered that they got no case that he was an income tax payee. That itself will show that the income claimed was not the actual income of the deceased. 4. After hearing the counsel, we perused the award as well as the schedule attached to the same. It can be seen that only a monthly income of Rs.4,000/- was adopted for calculation purpose. The Tribunal while discussing the evidence has stated that “ any way it can be presumed that the deceased had some kind of job or avocation.” Thus, by evaluating the evidence, the Tribunal itself came to the conclusion that he was having some business, but proof regarding the income was lacking. Thereon, a notional income was adopted as Rs.4,000/-. In this case, the accident occurred in the year 2010. It is also to be remembered that the appellants produced building tax receipt which stands in the name of the deceased. Considering all the MACA No.1226/2014 4 documents and also further keeping in mind that the accident occurred in the year 2010, it will be only just and proper to consider atleast Rs.8,000/- as the monthly income for assessment purpose. While considering this monthly income, the finding of the Tribunal that he is a self employed person as stated above is also taken into consideration. Thus, keeping in mind the future prospects also Rs.8,000/- is taken as the monthly income of the deceased. Now, the compensation is reassessed as follows : 5. Under the head of funeral expenses, only a sum of Rs.5,000/- is seen awarded. It is on a lower side. An additional sum of Rs.20,000/- is awarded on this head. Towards loss of love and affection, no amount was seen awarded by the Tribunal. As per the cause title of the claim petition itself, it can be seen that the 9th appellant/7th claimant was aged only one month at the time of the death of his father. Appellant Nos. 5, 6, 7, 8 were aged 18 years, 15 years, 10 years and 3 ½ years respectively. Thus, considering all these aspects, a total sum of Rs.2,00,000/- is awarded under the head of loss of love and affection. The said amount shall be shared equally in MACA No.1226/2014 5 between appellant Nos. 5 to 9 who are the children of the deceased. The fourth appellant is the widow of the deceased who was aged only 37 years at the time of the death of her husband. She was granted only a sum of Rs.50,000/- towards loss of consortium. An additional sum of Rs.50,000/- is awarded to the 4th appellant towards loss of consortium. We find no ground to interfere with the amount awarded under any other heads. The compensation payable under the head of dependency is reassessed as follows :- 6. It is reported that after the passing of the award, the first claimant before the Tribunal, who was the mother of the deceased died. Appellant Nos. 1 to 3 are her legal heirs. While passing the award, the mother was alive. Thus, the claimants were actually 7 in number. Under such circumstances, the deduction of 1/5 made by the Tribunal towards personal expenses is to be corrected. The multiplier available will be 14. Thus, on reassessing the compensation under the head of loss of dependency, the appellants will be entitled to get an additional sum of Rs.5,37,600/- (8000 x 12 x 14 x 4/5 – 5,37,600). Thus, appellant Nos. 4 to 9 will be entitled to get a total MACA No.1226/2014 6 additional compensation of Rs.8,07,600/-. The said amount will carry interest at the same rate as awarded by the Tribunal. Out of the said amount, Rs.2,00,000/- will be given to appellant Nos. 5 to 9, who are the children of the deceased, in the equal ratio and Rs.50,000/- awarded towards loss of consortium will be given to appellant No.4, the wife of the deceased. The balance amount shall be shared equally in between appellant Nos. 4 to 9, who are the wife and children of the deceased. The insurance company shall deposit the amount within a period of two months from the date of receipt of a copy of this judgment. On such deposit, if an application for release of deposited amount is made, the Tribunal shall pass appropriate orders thereon. The balance court fee, if any payable, shall be realized by the Tribunal before releasing the amount. No order as to costs. C.K.ABDUL REHIM, JUDGE K.P.JYOTHINDRANATH, JUDGE sv. "