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 22ND JUNE 2011 / 1ST ASHADHA 1933 MACA.No. 266 of 2005() ---------------------- OPMV.698/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- K.J.SUNNY S/O. K.C.JOHN, KUNNATHU HOUSE, KARIMKUNNAM P.O., THODUPUZHA. BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT RESPONDENT(S): RESPONDENTS -------------------------- 1. M/S. SOUTH INDIA CORPORATION LTD. B.DR.MADHURAM SALAI, K.K.NAGAR, TRICHI. 2. THE ORIENTAL INSURANCE CO.LTD., REPRESENTED BY BRANCH MANAGER, KARUR BRANCH. 3. T.P.GOPAKUMAR, S/O. P.K.PARAMESWARA MENON, THEVAROLIL HOUSE, CHAKKAMPUZHA P.O., PALA. 4. MRS.OMANA RAJENDRAN, THOTTUPURATHU KUDAMALOOR P.O., THODPUZHA DISTRICT. 5. NATIONAL INSURANCE CO.LTD., PALA. ADV. SRI.RAJAN P.KALIYATH FOR R5 SRI.V.G.ARUN FOR R4 SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 SRI.T.R.HARIKUMAR FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2011, ALONG WITH MACA NO. 291 OF 2005 AND CONNECTED CASE THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. Nos.266, 291 & 300 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 22nd day of June, 2011 JUDGMENT Barkath Ali, J. All these appeals under section 173 of the Motor Vehicles Act arise out of a common award dated July 1, 2004 passed by the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV) Nos.698, 734 and 697 of 1999 respectively 2. Appellants in M.A.C.A. No.300 of 2005 are the claimants in O.P.(MV) No. 697/1999. They are the husband and children of deceased Jolly who died in a motor accident. They challenge the judgment and award of the Tribunal awarding a compensation of ` 1,80,750/- for the loss caused to them on account of the death of the deceased in that accident. 3. Appellants in M.A.C.A.Nos. 266 and 291 of 2005 are the claimants in O.P.(MV) Nos. 698 and 734 of 1999 respectively. They challenge the judgment and award of the Tribunal awarding a compensation of ` 65,300/- and ` MACA 266/2005 2 46,640/- respectively for the loss caused to them on account of the injuries sustained by them in the accident. 4. The accident happened on December 26, 1998 at 4.30 a.m. at Vallam in Tamil Nadu. A tempo trax bearing registration No.KL-5/E 372 in which the injured persons and the deceased were travelling from Trichi to Velamkanni collided head on with a lorry bearing registration No. TN- 45/D 523. Jolly died in the accident and others sustained serious injuries. Alleging negligence against the drivers of both the vehicles, they filed the O.Ps. before the Tribunal under section 166 of the Motor Vehicles Act claiming compensation. Claimants in O.P.(MV) No. 697/1999 claimed a compensation of ` 5,45,000/- while the claimants in O.P. (MV) Nos.734 and 698 of 1999 claimed compensation of ` 2,00,000/- and ` 3,00,000/- respectively. 5. Respondents 1 to 3 in the O.Ps. are the driver, owner and insurer of the lorry and respondents 4 to 6 in the O.Ps. are the driver and owner and insurer of the tempo trax. Only respondents 3 and 6 respective Insurance MACA 266/2005 3 Companies contested the matter. Respondents 4 and 5 in the O.Ps., the driver and owner of the tempo trax, filed a written statement admitting the accident but denied the liability. Respondents 3 and 6 in the O.Ps. filed separate written statement admitting the policies of the respective vehicles. 6. These three O.Ps. and other O.Ps. were jointly tried by the Tribunal and a common award was passed. PWs.1 and 2 were examined and Exts.A1 to A29 were marked on the side of the claimants. Exts.B1 and B2 were marked on the side of the respondents. On an appreciation of evidence, the Tribunal found that the accident occurred due to negligence of drivers of both the vehicles in the ratio of 70 : 30 and awarded a compensation of ` 1,80,750/- in O.P. (MV) No. 697/1999, ` 65,300/- in O.P.(MV) No. 698/1999 and ` 46,640/- in O.P.(MV) No. 734/1999 with interest @ 6% per annum from the date of petition till realization. The claimants have come up in appeal challenging the quantum of compensation awarded by the Tribunal. MACA 266/2005 4 7. Heard the counsel for the claimants and the counsel for the Insurance Companies. 8. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the drivers of both the vehicles, respondents 1 and 4, at the ratio of 70 : 30 respectively is not challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimants are entitled to any enhanced compensation. 9. M.A.C.A.No.300/2005 (O.P.(MV) No. 697/1999):- In this case the Tribunal awarded a total compensation of ` 1,80,750/-. Break up of the compensation awarded is as under:- Loss of dependency : ` 1,36,000 Loss of consortium : ` 20,000 Loss of love and affection : ` 15,000 Transportation : ` 4,750 Funeral expenses : ` 2,000 Pain and suffering : ` 3,000 ------------------ Total : ` 1,80,750 ======== 10. The counsel for the claimants sought MACA 266/2005 5 enhancement of the compensation for the loss of dependency and on other heads. 11. The Tribunal took the monthly income of the deceased as ` 1,000/- and adopted multiplier of 17. After deducting 1/3 of her income for her personal expenses the Tribunal awarded ` 1,36,000/- for loss of dependency. 12. In this case deceased was a lady aged 34 at the time of the accident. The Tribunal took the monthly income of the deceased as ` 1,000/-, which appears to be very low. According to the claimants, the deceased was a Receptionist in Pappootty Restaurant attached to Pulimoottil Tourist Bungalow earning ` 2,000/- per month. Ext.A26 is the said certificate. Taking into consideration the above aspect, we feel that the monthly income of the deceased can reasonably be fixed at ` 1,500/-. After deducting 1/3rd for her personal expenses, balance amount of ` 1,000/- can be taken as her monthly contribution to her family. Proper multiplier that can be adopted in this case is 17. Thus, calculated for the loss of dependency, the MACA 266/2005 6 claimants are entitled to a compensation of ` 2,04,000/-. Thus, the claimants are entitled an additional compensation of ` 68,000/- on this count. 13. The Tribunal awarded ` 20,000/- for the loss of consortium and ` 15,000/- for the loss of love and affection. Taking into consideration the age of the deceased and the claimants, we feel that a compensation of ` 25,000/- for loss of consortium and ` 30,000/- for loss of love and affection would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore,we are not disturbing the same. Therefore, the claimants are found entitled to an additional compensation of ` 88,000/-. Regarding the apportionment of the compensation amount and disbursement of the same, the direction of the Tribunal will stand. 14. M.A.C.A.No.291/2005 (O.P.(MV) No. 734/1999):- In this case the Tribunal assessed a total compensation of ` 46,640/-. Actually the total compensation comes to ` 47,140/-. Break up of the compensation awarded is as MACA 266/2005 7 under:- Loss of earning : ` 3,000 Damage to clothing : ` 750 Extra nourishment : ` 500 Bystander's expenses : ` 800 Transportation expenses : ` 4,520 Pain and suffering, loss : ` 13,000 loss of amenities and enjoyment in life and shortened life span. Treatment expenses : ` 24,566 ------------------ Total : ` 47,136 Rounded to : ` 47,140 ======= 15. Learned counsel for the claimant has pointed out that no compensation was awarded by the Tribunal for the disability caused. He sought enhancement of compensation for the loss of amenities and enjoyment in life and for pain and suffering endured by the claimant. 16. The claimant sustained fracture of mandible left and lacerated wounds. Ext.A15 certificate of disability shows that he has suffered permanent disability of 15%, but the claimant has not come forward to swear regarding the alleged disability caused to him. Therefore, the Tribunal is perfectly justified in not awarding any compensation for the MACA 266/2005 8 alleged disability caused. 17. The Tribunal awarded ` 13,000/- for pain and suffering endured by the claimant, loss of amenities and enjoyment in life and shortened life span. Taking into consideration the nature of the injuries sustained, we feel that a compensation of ` 15,000/- for pain and suffering and ` 15,000/- for loss of amenities and enjoyment in life would be reasonable. 18. There is another aspect in this case. The Tribunal awarded a sum of ` 3,000/- towards loss of income for two months at the rate of ` 1,500/- per month. The claimant was a Sub Inspector of Police earning ` 7,500/- per month, according to him. Taking into consideration the above aspect we feel that his monthly income can reasonably be fixed at ` 2,500/-. Therefore, towards loss of earning, he is entitled to ` 5,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. Thus, the claimant is found entitled to an additional compensation of ` MACA 266/2005 9 19,000/-. The total compensation awarded by the Tribunal is corrected as ` 47,140/-. 19. M.A.C.A. No.266 of 2005 ( O.P.(MV) No.698/1999):- In this case the Tribunal awarded a total compensation of ` 65,300/-. Break up of the compensation awarded is as under:- Loss of earning : ` 1,500 Transportation expenses : ` 500 Damage to clothing : ` 250 Extra nourishment : ` 750 Bystander's expenses : ` 1,500 Treatment expenses : ` 300 Pain and suffering, loss : ` 20,000 loss of amenities and enjoyment in life and shortened life span. Disability : ` 40,500 ------------------ Total : ` 65,300 ======= 20. The claimant sustained the following injuries in the accident:- 1) Multiple fracture mandible. 2) Multiple fracture of right ankle and right paramedia. 3) Le Fort III fracture. MACA 266/2005 10 4) Communited fracture with loss of bones and soft tissue. 21. The counsel for the claimant sought enhancement of the compensation for the disability caused and on other heads. 22. The Tribunal took the monthly income of the claimant as ` 1,500/-, took the percentage of disability as 15%, adopted multiplier of 15 and awarded a compensation of ` 40,500/- for the disability caused. The claimant was a driver earning ` 3,000/-per month, according to him. Taking into consideration the above aspect, we feel that his monthly income can reasonably be fixed at ` 2,500/-. 23. Ext.A29 certificate of disability shows that he has permanent disability of 25%. Taking into consideration the nature of the disability mentioned in Ext.A29, we feel that percentage of disability can be taken as 20%. Multiplier adopted by the Tribunal as 15 appears to be reasonable. Thus calculated for the disability caused, the claimant is entitled to a compensation of ` 90,000/-. Thus the claimant is entitled to an additional compensation of ` 49,500/- on MACA 266/2005 11 this count. 24. The Tribunal awarded ` 20,000/- for pain and suffering, loss of amenities and shock and short expectation of life. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of ` 20,000/- for pain and suffering endured and another ` 20,000/- for loss of amenities and enjoyment in life would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore,we are not disturbing the same. Therefore, the claimants are found entitled to an additional compensation of ` 69,500/- 25. In the above three cases the Tribunal awarded interest only @ 6% per annum, which appears to be very low. The claimants are entitled to interest @ 7.5% for the compensation already awarded and also for the enhanced compensation. Respondents 3 and 6 in the O.Ps., the Insurance Companies, shall deposit the amount in the ratio of 70 : 30 respectively, as directed by the Tribunal, within MACA 266/2005 12 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 appeals are disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn MACA 266/2005 13 A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. Nos.266, 291 & 300/2005 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= JUDGMENT 22-6-2011