IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 962 of 2004()
1. POULOSE, S/O. VARKEY,
... Petitioner
Vs
1. UNITED INDIA INSURANCE CO. LTD.,
... Respondent
For Petitioner :SRI.GRASHIOUS KURIAKOSE
For Respondent :SMT.P.A.REZIYA
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :09/06/2010
O R D E R
A.K. BASHEER & P.Q. BARKATH ALI, JJ.
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M.A.C.A. 962 of 2004
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Dated: JUNE 9, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under sec.173 of the Motor Vehicles Act the
claimant in OP(MV) 916/1999 on the file of the Motor Accidents
Claims Tribunal, Irinjalakkuda, challenges the judgment and award
of the Tribunal, dated, September 18, 2003 awarding a compensation
of Rs.3,70,000/- for the loss caused to the claimant on account of
the death of his son George as a result of the injuries sustained by
him in a motor accident.
2. The facts leading to this appeal in brief are these: The
deceased George was aged 29 and was a Bus Conductor at the time of
the accident. Initially the claim petition was filed by him claiming
compensation for the injuries sustained by him, but during the
pendency of the OP he died. Therefore the present appellant, who is
the father of the deceased, was impleaded as his legal heir. On May
27, 1999 at 9.15 a.m. the deceased was travelling in the bus bearing
KRR 7806 as Bus Conductor. The bus was proceeding along Karalam
– Vellikulangara public road and when the bus reached near Veena
Workshop, Irinjalakuda, due to the rash and negligent driving of the
offending bus by the 2nd respondent, the deceased was thrown out of
M.A.C.A. 962 of 2004
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the bus and sustained serious injuries. According to the deceased
the accident occurred due to the negligence on the part of the 2nd
respondent. The 1st respondent as the owner, the 2nd respondent as
the driver and the 3rd respondent as the insurer of the offending bus
are jointly and severally liable to pay compensation to the claimant.
3. Due to the injuries sustained the deceased was completely
paralysed and therefore the claim petition was filed by him
represented by his father, the present claimant. During the pendency
of the petition, the deceased died. Then the compensation was
claimed for the loss caused to the appellant on account of the death of
the deceased in the accident.
4. Respondent No.2, the driver of the offending bus, remained
absent and was set ex parte by the Tribunal. The 1st respondent,
owner of the offending bus, filed a written statement contending that
there was no negligence on the part of the 2nd respondent. The 3rd
respondent, insurer of the offending bus, filed a written statement
admitting the policy.
5. PWs.1 and 2 were examined and Exts.A1 to A15 series and
Exts.X1 and X2 were marked on the side of the claimant. On the side
of the contesting 3rd respondent, Ext.B1 was marked before the
Tribunal. On an appreciation of evidence the Tribunal found that
M.A.C.A. 962 of 2004
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the accident occurred due to the negligence on the part of the 2nd
respondent and awarded a compensation of Rs.3,70,000/- with
interest at 9% per annum from the date of petition till realisation and
proportionate cost. The petitioner has now come up in appeal
claiming enhancement of compensation awarded by the Tribunal.
6. Heard the counsel for the appellant and the counsel for
the Insurance Company.
7. The accident is not disputed. The finding of the Tribunal that
the accident occurred due to the negligence on the part of the 2nd
respondent is not challenged in this appeal. Therefore, the only
question which arises for consideration is whether the claimant is
entitled to any enhanced compensation.
8. The deceased sustained the following injuries as revealed
from Ext.A5 copy of the wound certificate and Ext.A6 discharge
summary issued from the hospital:
1. Fracture ribs 1 to 7 Haemopneumothorax.
2. Fracture spine D6, D7, D8 vertebra.
3. Fracture transverse process of D8 & D9.
Due to the fracture to the spine and vertebrae the patient became
paraplegic. He died on February 4, 2003.
9. The Tribunal awarded a total compensation of Rs.3,70,000 /-.
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The break up of the compensation awarded is as under:-
loss of earnings - Rs.66,000/- transportation - 3,000/- bystander's expenses - 5,000/- medical expenses - 2,00,000/- loss of dependency - 60,000/- pain and suffering - 25,000/- loss of love and affection - 8,000/- funeral expenses - 3,000/-
10. The Counsel for the appellant/claimant sought enhancement
of the compensation for the pain and suffering endured, loss of
amenities and enjoyment of life, loss of earnings and attendant’s
expenses. The Tribunal took the monthly income of the deceased as
Rs.1500/-. After deducting one-third for his personal expenses, took
Rs.1000/- as his contribution to the family and adopted a multiplier of
5 as his father was aged 60 and awarded Rs.60,000/- for loss of
dependency. As the deceased was a Bus Conductor, we feel that his
monthly income can be reasonably estimated at Rs.2250/- which
comes to Rs.27,000/- per annum. After deducting one-third for his
personal expenses, Rs.18,000/- per annum can be taken as his
annual contribution to his family. The multiplier adopted by the
Tribunal as 5 is not seriously challenged. Thus calculated, for the
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loss of dependency, the appellant is entitled to a compensation of
Rs.90,000/-. Thus, on this count the appellant is entitled to an
additional compensation of Rs.30,000/-.
11. The Tribunal awarded a compensation of Rs.25,000/- for
the pain and suffering endured by the deceased. The accident
occurred on May 27, 1999 and he died on February 4, 2003.
Therefore for pain and suffering, we feel that a compensation of
Rs.50,000/- would be reasonable. Thus on this count the claimant is
entitled to an additional compensation of Rs.25,000/-.
12. For loss of amenities and enjoyment of life, no
compensation was awarded by the Tribunal. Taking into consideration
the injuries sustained by the deceased, we feel that a compensation
of Rs.25,000/- would be reasonable on this count.
13. There is another aspect in this case. The deceased was laid
up for about three years and eight months i.e. about 44 months. The
Tribunal awarded Rs.66,000/- for loss of earnings at the rate of
Rs.1500/- per month. We have fixed his monthly salary at
Rs.2250/-. Therefore towards loss of earnings, he is entitled to a
compensation of Rs.99,000/-. Thus on this count the claimant is
entitled to an additional compensation of Rs.33,000/-.
14. For attendant’s expenses, only Rs.5000/- was awarded by
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the Tribunal, which appears to be very low. Taking into consideration
the duration of the period the deceased was laid up, we feel that a
compensation of Rs.15,000/- would be reasonable on this count.
Thus on this count the claimant is entitled to an additional
compensation of Rs.10,000/-. As regards the compensation
awarded under other heads, we find the same to be reasonable and
therefore we are not disturbing the same.
15. Thus the claimant is entitled to an additional compensation
of Rs.1,23,000/-. He is entitled to interest @ 9% per annum from
the date of petition till realisation and proportionate cost. The
respondent herein being the insurer of the offending vehicle shall
deposit the amount before the Tribunal within two months from the
date of receipt of a copy of this judgment. The award of the Tribunal
is modified to the above extent.
The appeal is disposed of as found above.
A.K. BASHEER, JUDGE
P.Q. BARKATH ALI, JUDGE
mt/-