IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 29TH JUNE 2011/ 8TH ASHADHA 1933 MACA.No. 362 of 2005() ---------------------- OPMV.1745/1991 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): APPELLANTS/PETITIONERS ------------------------------------ 1. KUNNUMPURATH THOMAS, S/O. KUNNUMPURATH VARKEY, R/O. KUNNUMPURATH HOUSE, KAKKADAMPOYIL P.O., VALAMTHODE, KOZHIKODE DISTRICT 2. CHINNAMMA W/O. KUNNUMPURATH THOMAS, R/O. KUNNUMPURATH HOUSE, KAKKADAMPOYIL P.O., VALAMTHODE, KOZHIKODE DISTRICT. 3. BENNY S/O. KUNNUMPURATH THOMAS, R/O. KUNNUMPURATH HOUSE, KAKKADAMPOYIL P.O. VALAMTHODE, KOZHIKODE DISTRICT. 4. DEEPA D/O. KUNNUMPURATH THOMAS, R/O. KUNNUMPURATH HOUSE, KAKKADAMPOYIL P.O., VALAMTHODE, KOZHIKODE DISTRICT. 5. DEEPTHY D/O. KUNNUMPURATH THOMAS, R/O. KUNNUMPURATH HOUSE, KAKKADAMPOYIL P.O., VALAMTHODE, KOZHIKODE DISTRICT. 6. DIVYA D/O. KUNNUMPURATH THOMAS, R/O. KUNNUMPURATH HOUSE, KAKKADAMPOYIL P.O., VALAMTHODE, KOZHIKODE DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): RESPONDENTS -------------------------- 1. VADAKKEKKARA BABY ALIAS DEVASSIA S/O. DEVASSIA, R/O. NELLAMKUZHI HOUSE, KAKKADAMPOYIL P.O., KOODARANCHI AMSOM, KOZHIKODE DISTRICT. 2. MRS.VALSAMMA BABY W/O. DEVASSIA, R/O. NELLAMKUZHI HOUSE, KAKKADAMPOYIL P.O., KOODARANCHI AMSOM, KOZHIKODE DISTRICT. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED DIVISIONAL OFFICE, KALLAI ROAD, KOZHIKODE DISTRICT. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.362 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of June, 2011 JUDGMENT Barkath Ali, J. The judgment dated March 11, 2011 is recalled. Appellants are the claimants in OP(MV)No.1745/1991 on the file of the Motor Accidents Claims Tribunal, Kozhikode. They are the parents, brother and sisters of deceased Robinson who died in a motor accident. In this appeal they challenge the judgment and award of the Tribunal dated September 29, 1993 awarding a compensation of Rs. 1,18,000/- with interest of Rs.25,665/-, for the loss caused to them on account of the death of deceased in that accident. 2. On April 9, 1991 at about 8.30 p.m., while the deceased was travelling in a jeep bearing Reg.No.KL-11/6005 driven by the first respondent from Kakkdampoyil to Thiruvampadi and when he reached at Peedikapara (Koompara), due to the negligence of the first respondent, the jeep capsized. The deceased sustained serious injuries and he succumbed to the injuries sustained on the spot. Alleging negligence against the driver of the jeep, the claimants filed the OP under Sec.166 of the Motor MACA.No.362/2005 2 Vehicles Act claiming a compensation of Rs.3,00,000/-. 3. Respondents 1 and 2, the driver and the owner of the offending jeep filed written statements admitting the accident, but denied the liability. The third respondent, the insurer of the offending jeep filed a written statement admitting the policy of the jeep. 4. This O.P. was jointly tried along with other O.P.s filed by the other injured persons and the legal heirs of other deceased persons and a common award was passed. Pws 1 to 12 were examined Exts.A1 to A25 and Exts.X1 to X4 were marked on the side of the claimants before the Tribunal. RW1 was examined and Exts.B1 to B6 were marked on the side of the contesting respondents. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the driver of the jeep, the first respondent and awarded a compensation of Rs.1,18,000/- with interest of Rs.25,665/- at the rate of 10% per annum from the date of petition till realisation and proportionate cost against respondents 1 and 2. The Tribunal exonerated the third respondent Insurance Company from the liability. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal and also the finding of the Tribunal exonerating the third respondent Insurance Company. MACA.No.362/2005 3 5. Heard the counsel for the appellants/claimants and the counsel for the Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the driver of the jeep is not challenged in this appeal. Therefore, the following points arise for consideration : 1. Whether the finding of the Tribunal exonerating the third respondent Insurance Company from the liability can be sustained ? 2. Whether the claimants are entitled to any enhanced compensation ? 7. The Tribunal awarded a total compensation of Rs.1,18,000/-. The break up of the compensation amount awarded is as under: Loss of dependency - Rs. 50,000/- Loss of contribution at the time of marriage of petitioners 4 to 6 - Rs. 30,000/- Loss of love and affection - Rs. 15,000/- Loss of estate - Rs. 20,000/- Funeral expenses - Rs. 3,000/- 8. The deceased was aged 20 and was a coolie at the time of the accident Taking into account the age of the deceased and the age of the parents, we feel that the compensation awarded by the Tribunal is just and reasonable. It follows that the claimants are not entitled to any MACA.No.362/2005 4 enhanced compensation. 9. There is another aspect in this case. The Tribunal exonerated the Insurance Company, the third respondent on the ground that the jeep involved in the accident was used as a taxi while the policy was issued treating the same as a private vehicle. Ext.B3 is the copy of the permit issued to the offending jeep. But even if the offending vehicle was used as a taxi, the liability towards the third party is not affected by the same. Therefore, the Insurance Company is bound to pay the compensation amount awarded to the claimants. But the Insurance Company can recover the same from the owner and driver of the offending vehicle i.e. respondents 1 and 2. The third respondent shall deposit the amount awarded within one month from the date of receipt of a copy of this judgment. The appeal was filed with a delay of 4139 days. The claimants are not entitled to interest for that period. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv.