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
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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
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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
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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
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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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