IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1885 of 2006()
1. AYISHA, W/O. VAPPU.
... Petitioner
2. SHEEREENA, D/O. AYISHA.
3. SHAMUSUDHEEN (MINOR), S/O.AYISHA.
4. SHAMSEENA (MINOR), D/O. AYISHA.
5. BEEVATHU, W/O. LATE KUNJIMOIDU.
Vs
1. A.J. RAICHEL, W/O. V.C.ELEAS,
... Respondent
2. C.K. VARKEY, S/O. KURIYAKKOSE,
3. THE NEW INDIA ASSURANCE COMPANY LTD.,
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.KKM.SHERIF
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :28/10/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.Nos.1885 & 2009 OF 2006
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Dated this the 28th day of October, 2010
JUDGMENT
Barkath Ali, J.
Both these appeals are directed against the judgment and award
of the Motor Accidents Claims Tribunal, Thrissur dated November 28,
2005 in O.P.(MV)No.589/2003. The appellants in
M.A.C.A.No.1885/2006 are the claimants who are the wife, children
and mother of deceased Vappu, who died in a motor accident that
occurred on January 13, 2003 at about 12 O’clock . Appellant in
M.A.C.A.No.2009/2006 is the third respondent Insurance Company.
2. The accident happened while the deceased was pillion
riding on the motor cycle bearing Reg.No.KBF/8232 which was ridden
by one Rajesh and when they reached at Puthiya Workshop at
Chirankonam, they were knocked down by a tipper lorry bearing
Reg.No. KL8/J 2176 driven by the second respondent. Deceased
sustained serious injuries and he succumbed to the injuries sustained
while undergoing treatment from Aswini Hospital, Thrissur. The rider
MACA.No.1885/2006 2
of the motor cycle also sustained injuries. Alleging negligence against
the second respondent, the driver of the tipper lorry, the claimants filed
the O.P. before the Tribunal under Section 166 of Motor Vehicles Act
claiming a compensation of Rs. 18 lakhs.
3. First respondent, the owner of the offending lorry remained
absent before the Tribunal. No relief was claimed against the second
respondent, the driver of the offending lorry. The third respondent, the
insurer of the offending lorry filed a written statement admitting the
accident, but denied the liability.
4. This O.P. was jointly tried along with O.P.(MV)
No.592/2003 filed by the rider of the motor cycle and a common award
was passed by the Tribunal. PW1 was examined and Exts.A1 to A26
were marked on the side of the claimants. No evidence was adduced
by the contesting third respondent. On an appreciation of evidence, the
Tribunal awarded a total compensation of Rs. 8,51,200/- with interest
@ 7% per annum from the date of petition till realisation and
proportionate cost. The claimants have filed M.A.C.A.No.1885/2006
claiming enhancement of the compensation. The third respondent
MACA.No.1885/2006 3
Insurance Company has filed M.A.C.A.No.2009/2006 contending that
the compensation awarded by the Tribunal is excessive and that this
being a head on collision between the two vehicles, the Tribunal should
have found that there was also negligence on the part of the rider of the
motor cycle.
5. Heard the counsel for the appellants and the counsel for the
respondents.
6. The following points arise for consideration :
1. Whether the compensation awarded by the
Tribunal is excessive ?
2. Whether the claimants are entitled to any
enhancement of the compensation ?
3. Whether the finding of the Tribunal that the
accident occurred due to the negligence of the second
respondent in the O.P., the rider of the offending lorry
can be sustained ?
7. The Tribunal found that the accident occurred due to the
negligence of the second respondent in the O.P., the driver of the lorry
on the basis of Exts.A1, A2 and A7. Ext.A1 is the copy of F.I.
Statement and Ext.A2 is the copy of FIR and Ext.A7 is the copy of
MACA.No.1885/2006 4
police charge. Police has charged the case against the second
respondent. No contra evidence was adduced by the contesting third
respondent in the O.P. to show that there was any negligence on the
part of the rider of the motor cycle. Therefore, the Tribunal is perfectly
justified in holding that the accident occurred due to the negligence of
the second respondent in the O.P.. The finding of the Tribunal on this
point is confirmed.
8. The next question for consideration is whether the
claimants are entitled to any enhanced compensation. The Tribunal
awarded a total compensation of Rs. 8,51,200/-. The break up of the
compensation awarded is as under :
Transportation - Rs. 1,500/-
Extra nourishment - Rs. 1,000/-
Damage to clothing - Rs. 500/-
Treatment exp. - Rs. 62,600/-
Bystander exp. - Rs. 600/-
Funeral exp. - Rs. 5,000/-
Pain and suffering - Rs. 20,000/-
Loss of love and affection - Rs. 20,000/-
Loss of consortium - Rs. 20,000/-
Loss of dependency - Rs. 7,20,000/-
9. Counsel for the claimant sought enhancement of
compensation for the loss of dependency.
MACA.No.1885/2006 5
10. The Tribunal took the monthly income of the deceased as
Rs. 7,500/-. After deducting Rs.3,500/- towards his personal expenses,
took the balance amount of Rs. 4,000/- per month as his contribution to
his family and adopted a multiplier of 15 and awarded Rs. 7,20,000/-
for loss of dependency. Deceased was employed as a driver in
Muscut, according to the claimants. Ext.A11 series are passport of the
deceased. Ext.A12 is the licence issued by Sulthanate of Oman, Royal
Oman Police . Taking into consideration the above aspect, the Tribunal
is perfectly justified in taking his monthly income as Rs. 7,500/-. The
Tribunal deducted Rs. 3,500/- for the personal expenses of the
deceased which appears to be excessive. In the light of the principles
laid down by the Supreme Court in Sarala Varma v. Delhi Transport
Corporation and another ( 2009(6) SCC 121), 1/3 need be deducted
for the personal expenses of the deceased in assessing the loss of
dependency in the case of death of a person in a motor accident. Thus,
his monthly contribution to his family can be taken as Rs.5,000/-. The
multiplier adopted by the Tribunal as 15 is not seriously challenged.
Thus calculated, for the loss of dependency, the claimants are entitled
MACA.No.1885/2006 6
to a compensation of Rs. 9,00,000/- ( 5000 x 12 x 15). Thus on this
count, the claimants are entitled to an additional compensation of
Rs. 1,80,000/-. As regards the compensation awarded under other
heads, we find the same to be reasonable and therefore are not
disturbing the same. That being so, the appeal filed by the Insurance
Company has to be dismissed.
11. Thus, the claimants are found entitled to an additional
compensation of Rs. 1,80,000/- with interest @ 7% per annum from the
date of petition till realisation and proportionate cost. The third
respondent being the insurer of the offending vehicle shall deposit the
amount before the Tribunal within two months from the date of receipt
of copy of this judgment. The award of the Tribunal is modified to the
above extent.
In the result, M.A.C.A.No.1885/2006 is disposed of as found
above. M.A.C.A.No.2009/2006 is dismissed.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
sv.
MACA.No.1885/2006 7
MACA.No.1885/2006 8