IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 23 of 2005()
1. PONNAMMA, AGED 65 YEARS,
... Petitioner
2. PADMAVATHY, AGED 46 YEARS,
3. SANTHAKUMARI, AGED 42 YEARS,
4. VILASINI, AGED 37 YEARS,
5. BALASUBRAMANIAN, AGED 32 YEARS,
6. GOPALAKRISHNAN, AGED 29 YEARS,
7. RAJALAKSHMI, AGED 27 YEARS,
Vs
1. N.SUBRAMANIAN, AGED 36 YEARS,
... Respondent
2. THE MANAGING DIRECTOR, KSRTC.,
For Petitioner :SRI.K.MOHANAKANNAN
For Respondent :SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :09/07/2010
O R D E R
A.K. BASHEER & P.Q. BARKATH ALI, JJ.
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M.A.C.A.23/2005 & 1107/2004
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Dated: JULY 9, 2010
JUDGMENT
Barkath Ali, J.
Both these appeals under sec.173 of the Motor Vehicles Act arise
out of same judgment and award of the Motor Accidents Claims
Tribunal, Ottappalam in OP(MV) 263/2002 dated May 4, 2004.
M.A.C.A.23/2005 is filed by the claimant and M.A.C.A. 1107/2004 is
filed by the 2nd respondent, KSRTC.
2. The facts leading to these appeals in brief are these: The
claimants are the wife, major sons and daughters of deceased
Kunchutharakan. The deceased was aged 72 at the time of the
accident and was an agriculturist earning Rs.3000/- per month,
according to the claimants. On December 11, 2001 at about
9.45 a.m. the deceased was standing on the southern side of
Cherupalchery – Palakkad road at Mangode. At that time he was
knocked down by the KSRTC bus bearing registration No.KL15/1390.
The deceased sustained serious injuries and he succumbed to the
injuries sustained while undergoing treatment at Amala Hospital on
December 27, 2001. According to the claimants the accident
occurred due to the negligence on the part of the 1st respondent,
driver of the KSRTC bus. The 1st respondent as the driver and the
M.A.C.A.23/2005 & 1107/2004
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2nd respondent as the owner of the offending bus are jointly and
severally liable to pay compensation to the claimants who are the legal
heirs and dependents of the deceased. The claimants claimed a
compensation of Rs.2,50,000/-.
3. Respondents 1 and 2 in their written statement admitted the
accident, but contended that there was no negligence on the part of
the 1st respondent and that the accident occurred while the deceased
attempted to cross the road suddenly.
4. PW.1 was examined and Exts.A1 to A10 were marked on
the side of the claimants before the Tribunal. Respondent No.1 was
examined as RW.1 on the side of the respondents. On an
appreciation of evidence the Tribunal found that the accident occurred
due to the negligence on the part of the 1st respondent and awarded
a compensation of Rs.1,15,650/- with interest @ 9% per annum from
the date of petition till realisation and a cost of Rs.1250/-. The
claimants have now in M.A.C.A.23/2005 claimed enhancement of
the compensation awarded. The 2nd respondent KSRTC has filed
M.A.C.A. 1107/2004 contending that the compensation awarded is
excessive.
5. Heard the counsel for the appellants in both these appeals.
As both these appeals arise out of the same judgment, they are
M.A.C.A.23/2005 & 1107/2004
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disposed of by this common judgment.
6. The counsel for the claimants submitted that the
compensation awarded by the Tribunal is inadequate and claimed
enhancement of the compensation for the loss of dependency, pain
and suffering endured by the deceased, loss of consortium, towards
medical expenses and for loss of love and affection.
7. Counsel for the appellant in MACA 1107/2004 i.e. KSRTC
submitted that the compensation awarded is excessive as the
deceased was aged 72 at the time of the accident. He further
contended that the Tribunal should have believed the evidence of
RW.1, driver of the bus, and held that the accident occurred while the
deceased attempted to cross the road.
8. The following points arise for consideration:
I. Whether the finding of the Tribunal that the accident
occurred due to negligence on the part of the 1st
respondent can be sustained?
II. Whether the compensation awarded by the Tribunal is
excessive?
III. If not, whether the claimants are entitled to any
enhanced compensation?
M.A.C.A.23/2005 & 1107/2004
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9. On the side of the claimants PW.1, the 6th respondent, was
examined. The Tribunal disbelieved the evidence of RW.1, driver of
the KSRTC bus, that the accident occurred when the deceased
suddenly attempted to cross the road, for obvious reasons. Further,
police has charged a case against the 1st respondent. Therefore we
find no reason to come to a different conclusion. In our view the
Tribunal is perfectly justified in finding that the accident occurred due
to the negligence on the part of the 1st respondent.
10. The Tribunal awarded a total compensation of
Rs.1,15,650/-. The break up of the compensation awarded is as
under:-
loss of dependency - Rs.60,000/- pain and sufferings - 10,000/- bystander's expenses - 2,250/- medical expenses - 33,400/- loss of consortium - 5,000/- loss of estate and funeral expenses - 5,000/-
11. The Tribunal took the monthly income of the deceased as
Rs.1500/-. After deducting 1/3rd for his personal expenses, the
balance amount of Rs.1000/- is taken as his monthly contribution to
his family, which comes to Rs.12,000/- per annum. Taking into
M.A.C.A.23/2005 & 1107/2004
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consideration the age of the deceased, a multiplier of 5 was adopted
and the Tribunal granted Rs.60,000/- towards loss of dependency.
Taking into consideration the age of the claimants and the fact that the
children are all major and married persons, we feel that the
compensation awarded by the Tribunal towards loss of dependency is
reasonable and not excessive.
12. The Tribunal awarded Rs.10,000/- towards pain and
suffering endured by the deceased which appears to be very low. The
deceased died about 16 days after the incident. Therefore we feel that
a compensation of Rs.15,000/- would be reasonable for the pain and
suffering endured by the deceased.
13. Towards medical expenses the Tribunal awarded
Rs.33,400/-. But the claimants produced bills worth Rs.61,865/-,
according to the claimants. That apart, the deceased was in the
hospital for 16 days. Therefore we feel that a compensation of
Rs.50,000/- would be reasonable towards medical expenses.
14. Rs.5000/- was awarded by the Tribunal for the loss of
consortium which appears to be quite inadequate. In the
circumstances of the case, we feel that a compensation of Rs.10,000/-
would be reasonable on this count.
15. No compensation was awarded by the Tribunal for loss of
M.A.C.A.23/2005 & 1107/2004
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love and affection. Taking into consideration the age of the deceased
and the claimants, we feel that a compensation of Rs.15,000/- would
be reasonable for loss of love and affection.
16. Thus the claimants are found entitled to an additional
compensation of Rs.41,600/- with interest @ 9% per annum from the
date of petition till realisation.
As we have found that the compensation awarded by the
Tribunal is not excessive and awarded enhancement of the
compensation, M.A.C.A.1107/2004 is dismissed and M.A.C.A.23/2005
is disposed of as found above. The 2nd respondent in the O.P., who
is the appellant in M.A.C.A.1107/2004 shall deposit the enhanced
compensation with interest and costs within two months from the date
of receipt of a copy of this judgment with notice to the claimants.
The award of the Tribunal is modified to the above extent.
A.K. BASHEER, JUDGE
P.Q. BARKATH ALI, JUDGE
mt/-