High Court Kerala High Court

Sarasamma vs M.K. Vijayan on 16 June, 2010

Kerala High Court
Sarasamma vs M.K. Vijayan on 16 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 428 of 2004()


1. SARASAMMA, AGED 55, W/O. CHELLAPPAN NAIR
                      ...  Petitioner
2. SUNIL KUMAR, AGED 27, S/O. CHELLAPPAN
3. SUMESH, AGED 21,  DO.

                        Vs



1. M.K. VIJAYAN, S/O. MANIYAN,
                       ...       Respondent

2. K.G. JOHN, S/O. GEEVARGHESE,

3. BRANCH MANAGER, UNITED INDIA

4. SUNNY K.M., S/O. MANY,

5. K.P. ELIAS, S/O. K.N. PATHROSE,

6. BRANCH MANAGER, UNITED INDIA

7. PADMINI AMMA, PADMINI NILAYAM

8. RADHAKRISHNAN NAIR, PARVATHY BHAVAN,

9. SREENIVASAN NAIR, C/O. SAVITHRI S. NAIR,

                For Petitioner  :SRI.S.GOPAKUMARAN NAIR (SR.)

                For Respondent  :SRI.T.C.GOVINDA SWAMY

The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI

 Dated :16/06/2010

 O R D E R
            A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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                   M.A.C.A.No. 428 of 2004
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           Dated this the 16th day of June, 2010

                         JUDGMENT

Barkath Ali, J.

In this appeal under section 173 of the Motor

Vehicles Act claimants in O.P.(MV) No.917/1994 of the

Motor Accidents Claims Tribunal, Mavelikara challenge the

judgment and award of the Tribunal dated July 4, 2003

awarding a compensation of Rs.1,69,000/- for the loss

caused to them, on account of the death of Chellappan Nair

in a motor accident.

2. The facts leading to this appeal in brief are these:-

Deceased Chellappan Nair was aged 45 at the time of the

accident and was earning Rs.2,000/- per month as a Ticket

Collector in a Cinema Theatre and also as an Agriculturist.

On February 28, 1994 he was travelling in a Mini bus

bearing registration KL-4/A 7504 along National Highway

47. At about 8.45 a.m. when the bus reached near

Karuvatta, it collided head on with a tanker lorry bearing

MACA428/2004 2

registration No. KL-8/B 774. Chellappan Nair sustained

serious injuries and he succumbed to the injuries sustained,

while undergoing treatment in the Medical College

Hospital, Alappuzha on the same day. The claimants are his

wife, children and mother. According to the claimants, the

accident occurred due to the negligence on the part of the

first respondent, driver of the offending bus. The first

respondent as the driver, second respondent as the owner

and third respondent as the insurer of the offending bus are

jointly and severally liable to pay the compensation to the

claimants, who are the dependents and legal heirs of the

deceased. Respondents 4 to 6 are owner, driver and insurer

respectively of the tanker lorry involved in the accident. The

claimants claimed compensation of Rs. 3,50,000/-.

3. Respondents 1 and 2, driver and owner of the

offending bus, filed a joint written statement, admitting the

accident, but contended that the accident occurred due to

the negligence on the part of the driver of the tanker lorry.

Respondents 3 and 6, insurer of the bus as well as that of

MACA428/2004 3

the tanker lorry, filed written statement admitting the

policy of the respective vehicles. Respondents 4 and 5, the

driver and owner of the tanker lorry involved in the

accident, remained absent before the Tribunal.

4. PWs.1 and 2 were examined and Exts. A1 to A9

were marked on the side of the claimants. No evidence was

adduced on the side of the respondents. The Tribunal, on an

appreciation of the evidence, found that the accident

occurred due to negligence of first respondent, driver of the

offending bus, and awarded a compensation of Rs.1,69,000/-

with interest at the rate of 9% p.a. from the date of petition

till realization against respondents 1 to 3. The claimants

have come up in appeal, challenging the quantum of

compensation awarded by the Tribunal.

5. During the pendency of the O.P. fourth respondent,

mother of the deceased, died. Her legal heirs were

impleaded as Addl. respondents 7 to 9.

6. Heard the learned counsel for the appellants and

the learned counsel for respondents 1 and 3.

MACA428/2004 4

7. The accident is not disputed. The finding of the

Tribunal that the accident occurred due to the negligence

on the part of the first respondent, driver of the offending

bus, 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 Tribunal awarded a total compensation of

Rs.1,69,000/-. Break up of the compensation awarded is as

under:-

      Pain and suffering               :    Rs. 15,000/-
      Funeral and transportation       :    Rs.     6,000/-
      Expenses.
      Loss of consortium and           :    Rs. 18,000/-
      loss of love and affection.
      Total pecuniary loss suffered.   :    Rs.1,80,000/-
                                            ------------------
          Total                        :    Rs.2,19,000/-
                                            ========

9. The learned counsel for the appellants mainly

sought enhancement of compensation awarded by the

Tribunal for the loss of dependency.

10. The Tribunal took the monthly income of the

deceased as Rs.2,200/- and after deducting 1/3 for his

MACA428/2004 5

personal expenses, took Rs.1,500/- as his monthly

contribution to his family and adopted a multiplier of 10

and awarded a compensation of Rs.1,80,000/- for loss of

dependency. Ext.A6,certificate issued by the proprietor,

K.R. Talkies, shows that the deceased was given a salary of

Rs.2,000/- per month. Therefore, the Tribunal is perfectly

justified in taking his monthly income as Rs.2,200/- and

after deducting1/3rd for his personal expenses, taking

Rs.1,500/- as his monthly contribution to his family.

Deceased Chellappan Nair was aged 49 at the time of the

accident. Therefore, the proper multiplier that has to be

adopted in this case is 15. Thus for the loss of dependency,

the claimants are entitled to the compensation of

Rs.2,70,000/- (Rs.1,500/- x 12 x 15). Thus, on this count, the

claimants are entitled to an additional compensation of

Rs.90,000/-. As regards the compensation awarded under

other heads, we find the same to be reasonable and,

therefore, are not disturbing the same. The apportionment

fixed by the Tribunal will stand.

MACA428/2004 6

11. In the result, the claimants are entitled to an

additional compensation of Rs.90,000/- with interest at 9%

p.a. from the date of petition till realization with

proportionate costs. The third respondent Insurance

Company shall deposit the amount 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.

The appeal is disposed of as above.

A.K.BASHEER, JUDGE.

P.Q.BARKATH ALI, JUDGE.

mn.