Uma Vs M.M.Manaf

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE T.R.RAVI

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MONDAY, THE 13^TH DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943

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MACA NO. 227 OF 2013

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AGAINST THE AWARD IN OPMV 16/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR

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APPELLANTS/PETITIONERS:

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1 UMA

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W/O. LATE RAVEEDRANATHAN, KRISHNA REMYAM, THRUVENKITAM, GURUVAYOOR, CHAVAKKAD TALUK.

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2 REMYA D/O. LATE RAVEEDRANATHAN, KRISHNA REMYAM, THRUVENKITAM, GURUVAYOOR, CHAVAKKAD TALUK.

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3 ROHITH S/O. LATE RAVEEDRANATHAN, KRISHNA REMYAM, THRUVENKITAM, GURUVAYOOR, CHAVAKKAD TALUK.

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BY ADV SRI.DILIP J. AKKARA

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RESPONDENTS/RESPONDENTS:

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1 M.M.MANAF S/O. MARAKKAR, MADAPPATTUPARAMBIL HOUSE, PAZHUNJNANA, CHEMMANITHITTA P.O., THRISSUR DISTRICT.

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2 HANEEFA S/O. ALU, HARIYATH VEETIL, PUNNA, CHAVAKKAD – 680 506, THRISSUR.

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3 THE NEW INDIA ASSURANCE COMPANY LIMITED ANUGRAHA BUILDING, WADAKKANCHERY ROAD, KUNNAMKULAM-680 503, THRISSUR.

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R3 BY ADV N.S.MOHAMMED USMAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.9.2021, THE COURT ON 13.12.2021 THE FOLLOWING:

M.A.C.A.No.227/2013

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T.R. RAVI, J.

-------------------------------------------- M.A.C.A.No.227 of 2013

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Dated this the 13 th day of December, 2021

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JUDGMENT

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The 1 st appellant's husband, while riding his motorcycle on 13.8.2003, was hit by another motorcycle driven in a rash and negligent manner by the 2 nd respondent and suffered serious injuries. He was admitted in Rajah Hospital, Muthuvattur and thereafter at Amala Hospital, Thrissur, and again readmitted to Rajah Hospital, where he succumbed to the injuries on 23.10.2003. The 1 st appellant and the children of the deceased who are appellants 2 and 3, preferred the claim petition. The Tribunal awarded a sum of Rs.2,81,890/- as compensation. The appeal has been filed claiming enhanced compensation.

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2 . Heard the counsel for the appellants and the

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respondents.

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3 . The first contention of the counsel for the appellants is that the Tribunal went wrong in fixing contributory negligence on the part of the deceased to the extent of 30%. The counsel pointed out that the First Information Statement and the scene mahazar

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M.A.C.A.No.227/2013

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show that the deceased was not on the wrong side. Exhibit A2 charge sheet shows that the accident happened because of the negligence of the 2 nd respondent. It is hence submitted that in the absence of any contra evidence sufficient to disprove the contents of Exhibit A2, the Tribunal should not have fixed contributory negligence on the part of the deceased. The contention is fully justified in the light of the dictum laid down in New India Assurance Co. Ltd. v. Pazhaniammal reported in [(2011) 1 KLT 648] . I hence find that there is no justification for reducing any amount of compensation on reason of contributory negligence.

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4 . The next contention put forward by the Counsel for the appellants is that the Tribunal went wrong in fixing the notional monthly income as Rs.3,000/- and adopting the multiplier 7. The deceased was owner and operator of a rice mill. He was aged 60 years. Going by Sarla Verma vs Delhi Transport Corporation & Ors. reported in [2010 (2) KLT 802] , the multiplier to be adopted should be 9. In the absence of evidence regarding the income, the yardstick in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd., reported in [AIR 2011 SC 2951] , could have been adopted and a monthly income of Rs.4,000/- ought to have been taken, which is incidentally the

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M.A.C.A.No.227/2013

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amount claimed. For arriving at the compensation for loss of dependency, the monthly income should be increased by 10% to its future prospects [see National Insurance Company Ltd. v. Pranay Sethy & Ors. reported in [2017 (5) KHC 350 (SC)] . The amount awarded under the head loss of dependency has to be suitably modified.

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5 . The counsel for the appellants next submitted that the Tribunal did not award any amount towards transportation expenses, extra nourishment, damage to clothing and pain and suffering. So also the amounts awarded under the conventional heads loss of estate and funeral expenses are also very less. It is further submitted that towards loss of consortium and loss of love and affection, the Tribunal has awarded a sum of Rs.15,000/- each in place of Rs.1,20,000/- (40000x3). The above contentions are fully justified except in the case of compensation for pain and suffering, which going by the later Supreme Court judgments cannot be claimed by the legal representatives of the deceased. Adopting a nominal amount of Rs.200/- per day for bystanders expenses and a like sum for extra nourishment, for 78 days of hospitalisation of the deceased, an amount of Rs.15,600/- each ought to be granted under the above two heads. An amount of

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M.A.C.A.No.227/2013

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Rs.10,000/- is to be granted for transportation costs, in view of the fact that the deceased was moved from Hospitals at least on four occasions. A nominal amount of Rs.1,000/- is awarded under the head damage to clothing.

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6 . The appellants are hence entitled to additional compensation of Rs.90,000/- under the head loss of consortium and loss of love and affection put together, Rs.10,000/- towards funeral expenses and Rs.10,000/- towards loss of estate. The amount to be awarded under the head loss of dependency should be Rs.3,16,800/- (4000x110%x12x9x2/3). After deducting the sum of Rs.1,68,000/- awarded by the Tribunal, the appellants will be entitled to an additional compensation of Rs.1,48,800/- under the above head. The appellants will be entitled to Rs.15,600/- towards extra nourishment, Rs.10,000/- towards transportation charges, Rs.1,000/- towards damage to clothing and an additional sum of Rs.3,700/- towards bystander expenses.

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7 . In the result, the appeal is allowed. The appellants are awarded additional compensation of Rs.2,89,100/(Rupees Two Lakhs Eighty Nine Thousand One Hundred only) with interest at the rate of 9% per annum from the date of filing of the claim petition (01.01.2004) till the date of realisation, with

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proportionate costs. The appeal was filed with a delay of 153 days. By order dated 24.03.2021, this Court condoned the delay in filing the appeal on condition that the appellants will not be entitled to interest on the enhanced compensation which may be awarded by this Court for the period of 153 days. The interest payable on the enhanced compensation shall be hence excluding the period of 153 days. The 3 rd respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellants are liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellants shall be in accordance with law.

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Sd/-

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T.R. RAVI JUDGE

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dsn

Uma v. M.M.Manaf

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Uma v. M.M.Manaf

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