Allowed

Koya @ Ismail v. P.a.Shanavas (Deleted)

Kerala HC24 Nov 2022MACA/3108/2014

Case brief

AI extract

What is this about?

High Court revisited compensation awarded in motor accident claims. Court found income evidence unreliable but held notional assessment too low, resenting claims based on age. It awarded additional compensation for loss of dependency and consortium while rejecting claims for mental agony.

What did the court decide?

Additional compensation of Rs. 6,74,600 granted to each appellant with 7.5% interest.

Koya @ Ismail Vs P.a.Shanavas (Deleted) — Motor Accident Claims | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

¶4

THURSDAY, THE 24TH DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944

¶5

MACA NO. 3101 OF 2014

¶6

AGAINST THE AWARD DATED 05.05.2014 IN OP(MV) 428/2011 OF MOTOR ACCIDENTS
CLAIMS TRIBUNAL,ERNAKULAM

¶7

APPELLANTS/PETITIONERS:

¶8

1 H.A.NAZAR, AGED 46 YEARS, S/O. HAMSA

¶9

2 RASIYANAZAR, AGED 41 YEARS, W/O. NAZAR H.A.

¶10

3 NIYAS H.N., AGED 25 YEARS, S/O. NAZAR H.A., 4 RINCY, AGED 23 YEARS, D/O. NAZAR H.A. ALL THE APPELLANTS RESIDING AT VALIYAVEEDU, 23/634A, THAZHUPPU LANE, K.M.P. NAGAR, PALLURUTHY, COCHIN- 682006 BY ADVS.SRI.RAHUL SASI SMT.NEETHU PREM

¶11

RESPONDENTS/RESPONDENTS:

¶12

1P.A.SHANAVAS(DELETED)
S/O. ABOOBACKER, PAREKKATTIL HOUSE, NOCHIMA, NAD P.O.,
ALUVA, ERNAKULAM, PIN-683 101

¶13

2T.K.PRADEEP, (DELETED)
S/O. KESAVAN T.N.,
THANNIKKAL HOUSE, MANGUVA P.O., CHINNAR,
IDUKKI DISTRICT, PIN 695 501.

¶14

3THE ROYAL SUNDARAM ALLIACE INSURANCE CO. LTD.
6TH FLOOR, AMRITHA TOWERS, KPCC JUNCTION, M.G. ROAD,
ERNAKULAM , PIN - 682 011.

¶15

*RESPONDENTS 1 AND 2 ARE DELETED FROM THE ARRAY OF THE
RESPONDENTS AT THE RISK OF THE PETITIONERS AS PER ORDER
DATED 10/11/2022 IN I A 1/2022.
R3 BY ADVS.SRI.MATHEWS JACOB (SENIOR)
SRI.P.JACOB MATHEW

¶16

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
24.11.2022, ALONG WITH MACA. NOS.3108/2014, 3117/2014, 3118/2014, AND
3119/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶18

¶19

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶20

PRESENT

¶21

THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 24TH DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944
MACA NO. 3108 OF 2014

¶22

AGAINST THE AWARD DATED 05.05.2014 IN OP(MV)NO.432/2011 OF THE MOTOR

¶23

ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM

¶24

APPELLANTS/PETITIONERS:

¶25

1KOYA @ ISMAIL,
AGED 46 YEARS,
S/O. MOHAMMED KUNJU
2N.K.RUBIATH,
AGED 42 YEARS, W/O. KOYA @ ISMAIL
3P.K.HAFIS,
AGED 21 YEARS, S/O. KOYA @ ISMAIL
4RAOOF P.K.,
AGED 18 YEARS, S/O. KOYA @ ISMAIL
ALL THE APPELLANTS RESIDING POOPANAPARAMBU HOUSE,23/669 A,
THAZHUPPU LANE, K.M.P. NAGAR, PALLURUTHY, COCHIN-682006.

¶26

BY ADVS.SRI.SRI.RAHUL SASI
 SMT.NEETHU PREM

¶27

RESPONDENTS/RESPONDENTS:

¶28

1P.A.SHANAVAS (DELETED)
S/O. ABOOBACKER, PAREKKATTIL HOUSE, NOCHIMA, NAD P.O.,
ALUVA, ERNAKULAM, PIN- 683101.
2T.K.PRADEEP(DELETED)
S/O. KESAVAN T.N., THANNIKKAL HOUSE,
MANGUVA P.O., CHINNAR, IDUKKI DISTRICT, PIN- 695501.
3THE ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD.
6TH FLOOR, AMRITHA TOWERS,KPCC JUNCTION, M.G.ROAD,
ERNAKULAM, PIN- 682011
* RESPONDENTS 1 AND 2 ARE DELETED FROM THE ARRAY OF THE
RESPONDENTS AT THE RISK OF THE PETITIONERS AS PER ORDER
DATED 10/11/2022 IN IA 1/2022.
R3 BY ADVS.SRI.MATHEWS JACOB (SENIOR)
 SRI.P.JACOB MATHEW

¶29

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
24.11.2022, ALONG WITH MACA NOS.3101/2014, 3117/2014, 3118/2014 AND

¶30

3119/2014 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶31

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶32

¶33

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶34

PRESENT

¶35

THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 24TH DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944
MACA NO. 3117 OF 2014

¶36

AGAINST THE AWARD DATED 05.05.2014 IN OP(MV)NO.433/2011 OF MOTOR ACCIDENTS
CLAIMS TRIBUNAL, ERNAKULAM

¶37

APPELLANTS/PETITIONERS:

¶38

1C.M ZAKARIA,
AGED 47 YEARS,
S/O.C.B.MUHAMMED

¶39

2P.M.LAILA,
AGED 41,
W/O.C.M.ZAKARIA

¶40

3LAZIM M.ZAKARIA,
AGED 21 YEARS,
S/O.C.M.ZAKARIA
ALL THE APPELLANTS RESIDING AT 23/595 A (NEW NO.14/1698),
THAZHUPPIL LANE, MADURA COMPANY ROAD, PALLURUTHY,
COCHIN – 682006
BY ADVS.SRI.RAHUL SASI
 SMT.NEETHU PREM

¶41

RESPONDENTS/RESPONDENTS:

¶42

1P.A SHANAVAS (DELETED)
S/O.ABOOBACKER, PAREKKATTIL HOUSE, NOCHIMA, NAD P.O.
ALUVA, ERNAKULAM, PIN - 683 011.
2T.K.PRADEEP (DELETED)
S/O. KESAVAN T.N., TANNIKKAL HOUSE, MANGUVA.P.O., CHINNAR,
IDUKKI DISTRICT, PIN 695 501.
3THE ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD.
6TH FLOOR, AMRITHA TOWERS, KPCC JUNCTION, M.G.ROAD,
ERNAKULAM, PIN- 682 011.
*RESPONDENT NOS.1 AND 2 ARE DELETED FROM THE ARRAY OF THE
RESPONDENTS IN THE APPEAL AT THE RISK OF THE APPELLANTS AS PER
ORDER DATED 28/10/2022 IN IA 1/2020.
R2 BY ADV.SRI.TOM JOSE
R3 BY ADV.SRI.MATHEWS JACOB (SENIOR)
 SRI.P.JACOB MATHEW

¶43

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.11.2022,
ALONG WITH MACA NOS.3101/2014, 3108/2014, 3118/2014 AND 3119/2014 THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:

¶44

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶45

¶46

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶47

PRESENT

¶48

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

¶49

THURSDAY, THE 24TH DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944
MACA NO. 3118 OF 2014

¶50

AGAINST THE AWARD DATED 05.05.2014 IN OP(MV)NO.434/2011 OF MOTOR ACCIDENTS
CLAIMS TRIBUNAL, ERNAKULAM

¶51

APPELLANTS/PETITIONERS:

¶52

1K.K.MOHAMMED IQBAL,
AGED 47 YEARS,
S/O.KHADER K.K REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
YUNES K.K, AGED 42 YEARS, S/O.KHADER K.K.
2SEENATH C.K.,
AGED 42 YEARS,
W/O.K.K.MOHAMMED IQBAL,

¶53

3SHIMSI K.M.
AGED 22 YEARS,
D/O.K.K.MOHAMMED IQBAL,
4SHAHDIN,
AGED 11 YEARS,
S/O.KOYA @ ISMAIL, REPRESENTED BY HIS MOTHER SEENATH C.K,
W/O.K.K.MOHAMMED IQBAL

¶54

ALL THE APPELLANTS RESIDING AT KUREEKAD HOUSE, 23/683 (NEW
NO.12/1575) K.M.P NAGAR, PALLURUTHY, COCHIN-682 006.

¶55

BY ADVS.SRI.RAHUL SASI

¶56

 SMT.NEETHU PREM

¶57

RESPONDENTS/RESPONDENTS:

¶58

1P.A.SHANAVAS, (DELETED)
S/O.ABOOBACKER, PAREKKATTIL HOUSE, NOCHIMA, NAD P.O, ALUVA,
ERNAKULAM. PIN 683 101.
2T.K.PRADEEP(DELETED)
S/O.KESAVAN T.N., THANNIKKAL HOUSE, MANGUVA P.O, CHINNAR,
IDUKKI DISTRICT, PIN- 695 501.
3THE ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD
6TH FLOOR, AMRITHA TOWERS, KPCC JUNCTION, M.G ROAD, ERNAKULAM,
PIN-682 011.
*RESPONDENT NOS. 1 AND 2 ARE DELETED FROM THE ARRAY OF THE
RESPONDENTS IN THE APPEAL AT THE RISK OF THE APPELLANTS AS PER
ORDER DATED 28/10/2022 IN IA 1/2020.
R3 BY ADVS.SRI.MATHEWS JACOB (SENIOR)
 SRI.P. JACOB MATHEW

¶59

THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.11.2022, ALONG WITH
MACA. NOS.3101/2014, 3108/2014, 3117/2014 AND 3119/2014 THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

¶60

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶61

¶62

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶63

PRESENT

¶64

THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 24TH DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944
MACA NO. 3119 OF 2014

¶65

AGAINST THE AWARD DATED 05.05.2014 IN OP(MV)NO.435/2011 OF MOTOR
ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM

¶66

APPELLANTS/PETITIONERS:

¶67

1 ABDULLA,AGED 47 YEARS,S/O ABDUL RAHIMAN 2 NAJUMMA, AGED 45 YEARS, W/O ABDULLA 3 SAHEER, AGED 27 YEARS, S/O ABDULLA 4 SHABEER, AGED 26 YEARS, S/O.ABDULLA

¶68

ALL THE APPELLANTS RESIDING AT MARUKATTUPARAMBU, 11/62365,
K.M.P.ROAD, MADURA COMPANY JUNCTION, PALLURUTHY, COCHIN -
682006
BY ADVS.SRI.RAHUL SASI
 SMT.NEETHU PREM

¶69

RESPONDENTS/RESPONDENTS:

¶70

1P.A.SHANAVAS (DELETED)
S/O. ABOOBACKER, PAREKKATTIL HOUSE, NOCHIMA, NAD P.O.,
ALUVA, ERNAKULAM, PIN- 683101.
2T.K.PRADEEP(DELETED)
S/O. KESAVAN T.N., THANNIKKAL HOUSE, MANGUVA P.O.,
CHINNAR, IDUKKI DISTRICT, PIN- 695501.
3THE ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD.,
6TH FLOOR, AMRITHA TOWERS, KPCC JUNCTION, M.G.ROAD,
ERNKAULAM, PIN- 682011.
*RESPONDENT NOS. 1 AND 2 ARE DELETED FROM THE ARRAY OF THE
RESPONDENTS IN THE APPEAL AT THE RISK OF THE APPELLANTS AS
PER ORDER DATED 28/10/2022 IN IA 1/2020
BY ADVS.SRI.MATHEWS JACOB (SENIOR)
 SRI.P.JACOB MATHEW

¶71

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
24.11.2022,ALONG WITH MACA.3101/2014, 3108/2014, 3117/2014 AND
3118//2014 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶72

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶73

¶74

JUDGMENT

¶75

Dated this the 24th day of November, 2022

¶76

The above appeals are originated from a common

¶77

award passed by Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) in OP (MV) Nos.428/2011, 432/2011, 433/2011, 434/2011 and 435 of 2011.

¶78

The appellants in the above appeals are none other than the legal representatives of victims who sustained injuries in a motor accident occurred at about 3.45 a.m. On 16.12.2010 and succumbed to those. Several people sustained serious injuries in the above accident and some died consequently. A Tipper Lorry bearing Registration No.KL-10/Z 6846 hit on an Innova Car bearing Registration No.KL-07/AW 2161, in which they were travelling and thus the motor accident was occurred. The driver of the Tipper Lorry was

¶79

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶80

¶81

alleged as responsible for the motor accident by his rash and negligent driving. The injured were transported to Ernakulam Medical Centre for treatment but some died after reaching there. The legal representatives of those who died, filed the Original Petitions referred to above seeking compensation.

¶82

The registered owner, the driver and the insurer of the Tipper Lorry were arrayed in all Original Petitions as respondents 1 to 3 and a sum of `10,00,000/- was claimed as compensation.

¶83

First and second respondents entered appearance in all Original Petitions. Written Statement

¶84

was filed jointly, denying negligence of the second respondent who was driving the Tipper Lorry at the relevant time. The driver of the Innova Car was alleged as rash and negligent in driving it and causing

¶85

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶86

¶87

the motor accident. The amount claimed as

¶88

compensation is also disputed for being excessive and devoid of basis. The insurance coverage of the Tipper Lorry at the relevant time of the motor accident under the certificate of insurance issued by the 3^rd respondent is also admitted.

¶89

The 3^rd respondent filed written statement contending that collision of the two vehicles resulted in the motor accident, that the Original Petitions were bad for non-joinder of necessary parties due to nonincorporation of the owner, the driver and the insurer of the Innova car as respondents in the Original Petitions and that the tipper lorry being driven by the 2^nd respondent carefully and vigilantly, and therefore, negligence cannot be attributed to him. The claims raised by the petitioners in the Original Petitions

¶90

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶91

¶92

regarding the age, the occupation and the monthly income of the deceased were disputed. The quantum of compensation claimed in each cases were also disputed for being excessive and devoid of any basis.

¶93

As already stated evidence was adduced in

¶94

common and it consist of the oral evidence of PWs 1 to 6 and documentary evidence of Exts.A1 to A48, on the side of the petitioner and oral evidence of RW1 and RW2 and documentary evidence of Exts.B1 & B2 on the side of the respondents.

¶95

On appreciation of the evidence, the Tribunal

¶96

arrived at a finding that the driver of the Tipper Lorry bearing Registration No.KL-10/Z 6846 stood arrayed in all Original Petitions as the 2^nd respondent has caused the motor accident by his rash and negligent driving.

¶97

6,61,000/-, 6,61,000/-, 6,62,000/-, 6,62,000/-

¶98

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶99

¶100

and `6,61,000/- respectively were also arrived at as

¶101

the compensation payable to the petitioners in those

¶102

Petitions. Tribunal also found respondents 1 to 3 jointly and severally liable to pay the compensation arrived at with interest and costs fixed and directed the 3^rd respondent being the insurer of the offending vehicle to deposit it in favour of the petitioners proportionately.

¶103

Common contentions were mainly raised

¶104

against the fixation of the monthly income of the

¶105

victims of the motor accident and the quantum of compensation arrived at under the various heads. It

¶106

was contended that the Tribunal went wrong in fixing the monthly income notionally, in total disregard of the evidence adduced by the parties, without any reasons.

¶107

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶108

¶109

It was contended furthermore that the Tribunal failed to award compensation under the conventional

¶110

heads, as directed by the Constitution Bench of the Apex Court in National Insurance Company Limited V. Pranay Sethi and Ors. [2017 (4) KLT 662 (SC)] . According to the learned counsel, as per the decision cited, legal representatives who would come within any of the categories of spouse, parents and children of the deceased are entitled to get 44,000/- per head as compensation towards loss of consortium. According to him, legal representatives are also entitled to get 16,500/- each as compensation towards loss of estate and funeral expenses. It was pointed out that the sums stood awarded as compensation under the respective heads fall short of the sums eligible to be received by the petitioners and therefore interference and modification is required.

¶111

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶112

¶113

As per the claims made by the petitioners in OP(MV) No.428/2011, Rinshad who died in the motor accident was aged 19 years, a painter by occupation and earning 10,000/- monthly. Ext.A16 was relied on to establish their claims about occupation and monthly income, which is a certificate issued by one Mr.Najeeb, the alleged employer. It is certified in Ext.A16 that Mr.Rinshad was a Painter by occupation at the relevant time and was earning 400/- daily. The person who issued and signed Ext.A16 was examined before the Tribunal as PW2. He deposed that, Rinshad was working under him since January 2010. According to the learned counsel, the oral evidence of PW2 as well as the certificate admittedly issued by him and marked in evidence as Ext.A16 were discarded by the Tribunal while fixing the monthly income. According to the

¶114

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶115

¶116

learned counsel the Tribunal is highly unjustified in fixing the monthly income notionally as `4,000/- totally discarding the evidence on record for no valid reasons.

¶117

In OP(MV) No.432/2011 also identical contentions were raised that the oral as well as documentary evidence adduced to establish the occupation and the monthly income of the victim were discarded by the Tribunal while fixing it. According to the learned counsel certificate issued from KATE International, Palluruthy was marked in evidence as Ext.A26 and there Mr.Harris, who died in the motor accident was certified as a concrete and core cutting machine operator. The signatory of Ext.A26 was examined as PW4. Contention was raised against fixation of monthly income as Rs.4,000/- notionally, discarding the evidence on record.

¶118

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶119

¶120

In OP (MV) No.433/2011, the contention

¶121

raised was that though it was certified by the employer of Sri.Lizam M. Zakaria in Ext.A30 that he was a Sales Co-ordinator working at Mobile Zone, Penta Menaka, Ernakulam from 01.04.2008 and earning Rs.9,000/and 2,683/- respectively as salary and DA, the Tribunal discarded the evidence for no valid reasons. According to him, the Tribunal took 4,000/- as the monthly income on a notional basis and thereby erred and unjustified. He canvassed for re-fixation of monthly income after appreciating the evidence on record in the proper manner.

¶122

In OP (MV) No.434/2011 attention of this Court was drawn to a certificate issued from AS Engineering Works and the oral evidence tendered by the person who issued it and examined as PW6 and contended that

¶123

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶124

¶125

discarding those evidence that the monthly income of the victim of the motor accident was fixed by the Tribunal as `4,000/- notionally.

¶126

In OP (MV) No.435/2011 the contention

¶127

raised by the learned counsel was that despite marking of a certificate as Ext.A39 and examination of the person who issued it, the Tribunal took only `4,000/as the monthly income and therefore is totally unjustified.

¶128

The learned counsel for the petitioners contended that the evidence adduced by the petitioners in the above Original Petition ought not to have been discarded by the Tribunal. According to him, the provisions of the Evidence Act are not strictly applicable to the Original Petitions filed under the Motor Vehicles Act seeking compensation.

¶129

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶130

¶131

The learned counsel for the 3^rd respondent

¶132

contended on the contrary that the Tribunal has awarded excess compensation than that was deserving in all Original Petitions and therefore, the claims for further enhancement are only liable to be rejected. The learned counsel also raised vehement objection against grant of 25,000/- towards funeral expenses. According to him the petitioners are entitled to get only 16,500/- each towards funeral expenses and loss of estate respectively and 44,000/- per head, towards loss of consortium. According to him, an excess sum of 8,500/- stood awarded by the Tribunal towards funeral expenses and `1,00,000/- each awarded towards loss of love and affection and mental agony were liable to be deducted from the total additional compensation, if any arrived at, having due regard to the non entitlement of the petitioners for that.

¶133

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶134

¶135

True that documentary as well as oral

¶136

evidence have been let in by the petitioners in the Original Petitions to establish the job and monthly income of the victims of the motor accident, who succumbed to the injuries sustained. The Tribunal noticed grave discrepancies in the monthly income claimed by petitioners in the respective Original Petitions and those stood certified in the certificates

¶137

relied on by them in evidence. Accordingly, those were discarded by the Tribunal and it opted to fix the monthly income on a notional basis.

¶138

It is noted by the Tribunal from the pleadings of the petitioners in the Original Petition filed as OP(MV) No.428/2011, that the victim of the motor accident with reference to whom claim for compensation was raised that, the column meant for

¶139

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶140

¶141

showing the name of the employer was kept blank. In the certificate tendered in evidence as Ext.A16, the victim was described as a painter,earning `400/- daily. It was furthermore certified in Ext.A16 that the victim was employed under him since January 2010. The signatory of Ext.A16 was examined as PW2 who admitted to have issued it. It is found that PW2 was brought into the picture very late, at the time of adducing evidence and the evidence tendered by him can only be treated as the outcome of an afterthought. Petitioners in the Original Petitions being parents of the deceased cannot plead ignorance of the job and monthly income of the victims who are none other than their children at the relevant time when the Original Petitions seeking compensation were filed.

¶142

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶143

¶144

In OP (MV) No.432/2011 a Certificate issued

¶145

from KATE International, Palluruthy was marked in evidence as Ext.A26 to establish the occupation and monthly income of the deceased. The deceased was certified in Ext.A26, as a Concrete Cutter as well as Core cutter machine operator, working so for the past three years and earning a sum of `400/- daily. Ext.A26 was found issued by a partner of KATE International, Palluruthy. But the factums certified in Ext.A26 did not tally with the claims raised by the petitioners in the Original Petition. The Tribunal found furthermore based on the period of service stood certified in Ext.A26, that the victim might have been employed there at his age of 17. Sri.Muhammed Manzoor, the alleged employer was examined as PW4. Admittedly Ext.A26 was issued by him in his capacity

¶146

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶147

¶148

as partner of Kate International, Palluruthy. PW4, was examined before the Tribunal as Managing Partner of the firm and he deposed during examination that the name of the victim is not incorporated in any of the records maintained by the Firm. Materials are also not forthcoming in evidence to establish that PW4 was the Managing Partner of KATE International, Palluruthy at the relevant time when he was examined before the

¶149

Tribunal. For the reasons, the Tribunal discarded the oral evidence of PW4 and Ext.A26 from consideration.

¶150

In the appeal filed against the award in O.P (MV)No.433/2011, petitioners have raised a claim that

¶151

the victim of the motor accident was a Salesman at the relevant time of the motor accident. A certificate issued

¶152

from Mobile Zone, Penta Menaka, Ernakualm where he was shown as a Sales Co-ordinator from 01.04.2008,

¶153

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶154

¶155

earning a salary of 9,000/- and Dearness Allowance of 2,683/-. Ext.A30 was found issued by one Mr.Sainul Abid, claiming to be the Managing Partner of Mobile Zone. He was examined as PW5. Admittedly Ext.A30 was issued by him. According to PW5 the deceased was working in Mobile Zone as Sales Co-ordinator since three years prior to the motor accident. Admittedly the deceased was paying Income Tax. Apart from Ext.A30, registers or records maintained at the Office of Mobile Zone where the name of the victim was incorporated were not produced and marked in evidence. In the above context that the Tribunal was constrained to discard the oral and documentary evidence tendered as above and opt to fix `4,000/- as the monthly income on a notional basis.

¶156

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶157

¶158

In OP (MV) No.434/2011, as per the claim

¶159

raised, the victim of the motor accident was an X-ray Welder. Petitioners marked Ext.A35(a) and (b) in evidence to establish that the victim had passed X-ray Welding and MIG Welding. Another document was also produced by the petitioners, issued from A.S Engineering Works and marked in evidence as Ext.A34 where it was certified that the victim was working as an X ray Welder for a daily wage of `400/-. Ext.A34 was dated 09.02.2012 and it was issued by one Mr.Ajmal. But petitioners failed to establish the so called Ajmal’s connection with A.S. Engineering Works and also his authority to issue Ext.A34. Ext.A35(a) and (b) are also photocopies.Mr.Ajmal when examined as PW6 admitted issuance of Ext.A34 by him. But during cross examination, he took a stand that he is a

¶160

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶161

¶162

Partner of AS Engineering Works. Apart from Ext.A34, other reliable documents are not forthcoming in evidence to establish that the deceased was employed under AS Engineering Works. In the above scenario that the Tribunal was constrained to discard the oral as well as the documentary evidence tendered by the petitioners and opted to fix the monthly income notionally.

¶163

In O.P (MV) No.435/2011 also, as per the claims raised by petitioners, the victim of the motor accident was aged 21 years, working as Welder under A.S. Engineering Works and earning 400/- daily. A certificate issued by one Mr.Ajmal was also marked in evidence as Ext.A39. The Tribunal being not convinced of the reliability of the above evidence, discarded those and opted to consider 4,000/- as the monthly income of the victim, on a notional basis.

¶164

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶165

¶166

The Tribunal cannot be found fault with for discarding the evidence adduced by petitioners as above. Nevertheless, the motor accident being occurred in the year 2010 and the victims who died in the motor accident being of the age group of 20-21 years, the Tribunal ought to have considered a better sum as the monthly income in each Original Petitions. The Tribunal is also unjustified in failing to consider 40% addition to the monthly income of the deceased in consideration of loss of future prospects.

¶167

In the above circumstances, this Court finds every reason for a recalculation of compensation. The victims of the motor accident being aged 20-21 years, `8,000/- is taken as the monthly income irrespective of the claims raised by the petitioners in the Original Petitions. 40% is also added to the monthly income in

¶168

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶169

¶170

consideration of future prospects, having due regard to the untimely death of the victims in the motor accident. They being bachelors, half of the monthly income fixed for calculation is also deducted therefrom, having due regard to the personal expenditure liable to be met with by each of them, had they been alive after the motor accident. Thus, 12,09,600/- [(8,000/- + 40% of 8,000/-) x 12 x 18 x 1/2] is arrived at as the compensation payable towards loss of dependency. When 4,32,000/- stood awarded by the Tribunal is adjusted against the sum now arrived at, petitioners will get 7,77,600/- as additional compensation. 8,500/- stood awarded in excess towards funeral expenses needs to be deducted. Siblings are already found not entitled to get compensation for loss of consortium and therefore the claim made by the

¶171

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶172

¶173

petitioners in that respect is discarded. Since the deceased in all cases were survived by their father and mother, they are entitled to get 44,000/- as compensation per head towards loss of consortium as directed by the Apex Court in **Pranay Sethi** supra. 1,000/- is also awarded as compensation towards damages to clothing.

¶174

It is found that in all cases 1,00,000/- was found awarded by the Tribunal as compensation towards loss of love and affection and mental agony. Petitioners are not entitled to get compensation under those heads. Therefore, 2,00,000/- stood awarded by the Tribunal in total also needs to be deducted from the total additional compensation arrived at as payable.

¶175

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶176

¶177

In the above manner of calculation of

¶178

compensation afresh, petitioners in each appeals (M.A.C.A.Nos.3101,3108,3117, 3118 & 3119 of 2014) will get 6,74,600/- [(7,77,600/- + 16,500/- + 1,000/- + 88,000/-) - (8,500/- + 1,00,000/- + 1,00,000/-)] (Rupees Six Lakhs Seventy Four Thousand and Six Hundred only) as additional compensation. The said amount will also carry interest at the rate of 7.5 % per annum from the date of filing of the Original Petition till the date of realisation. Challenge being not raised by the 3^rd respondent against the fixation of liability on it by the Tribunal to indemnify the insured, it is maintained. Therefore, 3^rd respondent shall pay the additional compensation now arrived at by this Court with interest accrued on it at the rate fixed and the sum originally stood awarded by the Tribunal with

¶179

M.A.C.A.Nos.3101,3108,3117,
3118 & 3119 of 2014

¶180

¶181

interest fixed for it (if not already paid), within a period of two months from the date on which a certified copy of this judgment is received. The compensation shall be disbursed in favour of the petitioners in each case in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019.

¶182

In view of the delayed filing of the appeals, the 3^rd respondent is not liable to pay interest for 30 days, being the period of delay occurred. Since the total compensation awarded in favour of the petitioners in each cases being excess of the total sum claimed by them as compensation, the Tribunal shall see that proportionate court fee for the excess sum is also paid by each of them.

¶183

MACAs stand allowed accordingly .

Sd/-

MARY JOSEPH

JUDGE

MJL

Koya @ Ismail v. P.a.Shanavas (Deleted)

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Koya @ Ismail v. P.a.Shanavas (Deleted)

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