High Court Kerala High Court

H.Ummer Basha vs Sayed Zain Mashoor on 28 July, 2009

Kerala High Court
H.Ummer Basha vs Sayed Zain Mashoor on 28 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1205 of 2005()


1. H.UMMER BASHA, AGED 51YEARS, S/O.H.HEERA
                      ...  Petitioner
2. ASIYA BANU, AGED 45 YEARS, W/O.UMMER
3. ZAREENA, AGED 23 EYARS, D/O.UMMER BASHA,
4. H.ASIF MASOOD, AGED 21 YEARS,
5. H.SABEENA, AGED 18 YEARS, D/O.UMMER

                        Vs



1. SAYED ZAIN MASHOOR, V.C.BUNGALOW,
                       ...       Respondent

2. BABURAJ U.P. S/O.RAMAN, AGED 26 YEARS,

3. THE ORIENTAL INSURANCE COMPANY LIMITED,

                For Petitioner  :SRI.V.N.RAMESAN NAMBISAN

                For Respondent  :SRI.VINOD VALLIKAPPAN

The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS

 Dated :28/07/2009

 O R D E R
                          K. M. JOSEPH &
                 M.L. JOSEPH FRANCIS, JJ.
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                   M.A.C.A.No. 1205 of 2005
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              Dated this the 28th day of July, 2009

                             JUDGMENT

Joseph, J.

The appellants are the petitioners in a petition filed under

Section 166 of the Motor Vehicles Act. They are the mother and

siblings of the deceased, who died in a motor accident. The

appeal is directed against the quantum of compensation awarded.

2. We heard the learned counsel for the appellants and the

learned counsel for the third respondent, Insurance Company.

Since insurance is admitted and the question raised in this appeal

relates only to the quantum, we are not issuing notice to

respondents 1 and 2 and we are disposing of the appeal on merits

by consent.

3. The learned counsel for the appellants submitted

that the Tribunal erred in fixing the income at Rs.2,500/- He

M.A.C.A.No. 1205 of 2005

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pointed out the discussion in this regard in page 7 of the award,

which reads as follows:

“Th petitioners could also bring out evident to the

effect that the deceased passed various technical

examinations in various trades like radio and

electricians course etc. So no doubt the deceased was a

youngster with prospectus and his position cannot b

equated with that of a man expected to get only a

notional income. May be it is true that th petitioners

could not produce evidence as to the exact income of

the deceased. But it is equally important to not that

they could prove and establish that he was a driver by

calling and that he was qualified in various trades. So it

will be only reasonable to fix his income at Rs.2,500/-

p.m. and accordingly I do so.”

4. The learned counsel for the appellants would submit that

having regard to the fact that the deceased was a driver by

profession, under the Minimum Wages Act, the Tribunal should

M.A.C.A.No. 1205 of 2005

3

have fixed the income at a higher level. He further submits that

only Rs.5,000/- has been awarded towards pain and sufferings and

Rs.5,000/- towards loss of love and affection.

5. As far as the question of income is concerned, the

accident took place in 2000. There is no oral or documentary

evidence to substantiate the income of the deceased. In such

circumstances, we are not inclined to enhance the income. We

feel that no complaint can be raised against the income fixed at

Rs.2,500/-

6. As far as pain and sufferings is concerned, going by the

decision of the Apex Court, no amount can be awarded towards

pain and sufferings. No doubt, in view of the fact that the

appellants have already been awarded some amount towards pain

and sufferings, no further amount could be granted.

7. The learned counsel for the appellants then contended

that the amount awarded towards transportation is very low. Only

Rs.2,000/- is awarded. He points out that the deceased was taken

M.A.C.A.No. 1205 of 2005

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to the Medical College Hospital, Calicut and then he was taken to

Udupi. There was a claim for Rs.7,000/- We feel that the

appellants should be granted Rs.3,000/- more transportation

charges.

8. The appellants are justified in demanding higher interest

in view of the decision of the Supreme Court in Supe Dei v.

National Insurance Co. Ltd. ((2009) 4 SCC 513). Having regard

to the year of the accident, we feel that 7.5% interest from the date

of the petition till the date of realisation can be granted.

9. Accordingly this appeal is allowed in part. It is ordered

that the amount already awarded to the appellants will bear

interest at the rate of 7.5%, instead of 6%. That amount can be

realised from the third respondent. The appellants are also

entitled to realise Rs.3,000/- with interest at the rate of 7.5% p.a.

from the date of the petition till the date of realisation. The

third respondent will deposit the amount awarded by the Tribunal

M.A.C.A.No. 1205 of 2005

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as also the amount, which we have awarded, within a period of

two months from today.

(K. M. JOSEPH)
Judge

(M.L. JOSEPH FRANCIS)
Judge

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