IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 MACA.No. 1430 of 2004() -------------------------------- OPMV.753/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): APPELLANTS/PETITIONERS --------------------------------------------------------------- 1. GEORGE @ APPACHAN, MULLACKAL HOUSE,KANNADY P.O., ALLEPPEY DISTRICT NOW RESIDING AT C/O. SUNI JOHN,(D/O.GEORGE),THEKKECHOORANOLIL, NARIYANANI P.O.,KOTTAYAM DISTRICT. 2. THRESIAMMA GEORGE,W/O. GEORGE @ APPACHAN MULLACKAL HOUSE,KANNADY P.O.,ALLEPPEY DISTRICT NOW RESIDING AT C/O. SUNI JOHN, (D/O.GEORGE), THEKKECHOORANOLIL,NARIYANANI P.O., KOTTAYAM DISTRICT. THE 3RD APPELLANT IMPLEADED AS PER ORDER DATED 7.9.10 IN I.A. NO.3037/05: 3. SUNI JOHN, W/O. JOHN, AGED 40 YEARS, THEKKECHURANOLIL HOUSE, NARIYANI P.O, PONKUNNAM. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): ---------------------- 1. P.DURAICHAMMY, KOOLAYANUR P.O.,CHINNAMANUR (VIA), VAIGA DISTRICT,TAMIL NADU STATE. 2. R.KUMARAN,S/O. RAMAR, SOUTH STREET,KOOLAYANUR P.O., VAIGA DISTRICT,TAMIL NADU STATE. 3. SMT.RUKMINI GANAPATHY, SUVARNA HOUSE,PONKUNNAM P.O. :2: 4. JOSE JOSEPH, PADIMATTATHIL HOUSE, PONKUNNAM P.O. 5. THE UNITED INDIA INSURANCE COMPANY LIMITED,PONKUNNAM. 6TH AND 7TH RESPONDENTS IMPLEADED AS PER ORDER DATED 7.9.10 IN I.A. NO.3037/05: 6. SAJI M. GEORGE, AZHIYAKATHU HOUSE, KATTOOR P.O., MARARIKULAM. 7. TOM GEORGE, SKYLAB INSTRUMENTS & ENGINEERING PVT. LTD., GALA NO.7-8, ANAND MANGAL INDUSTRIAL INVESTMENTS, VASAI ESTATE, THANE. ADV. SRI.K.SRIKUMAR FOR R1 SRI.K.MANOJ CHANDRAN FOR R1 SRI.SAIGI JACOB PALATTY FOR R4 SRI.C.V.BIMAL ROY FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. -------------------------------------------------- M.A.C.A. No. 1430 OF 2004 -------------------------------------- DATED THIS THE 7TH DAY OF SEPTEMBER, 2010 JUDGMENT Barkath Ali, J. One Siby George died in a motor accident that occurred on January 23, 1997. He was travelling in a Maruti car bearing registration No. KL-5D/6261 from Ponkunnam to Theni. When he reached near K.R. Paddy field at Uthamapalayam-Chinnamanoor Main Road, it collided head on with a Tractor bearing registration No. TNU 8960. The deceased sustained serious injuries and he succumbed to the injuries sustained on reaching the Government Hospital, Uthamapalayam. Claimants are the parents of the deceased. They filed O.P before the Tribunal alleging negligence against the drivers of both the vehicles claiming a compensation of ` 4,57,833/- under Section 163A of the Motor Vehicles Act. 2. The first respondent is the owner and the 2nd respondent is the driver of the Tractor involved in the M.A.C.A No. 1430/04 2 accident and respondents 3,4 and 5 are the owner, driver and insurer of the Maruti car in which the claimant was travelled. The first respondent, the owner of the Tractor filed a written statement admitting the accident but attributing negligence to the driver of the Maruti car. The 2nd respondent, the driver of the Tractor and the 3rd respondent, the owner of the Maruti car remained absent before the Tribunal. The 4th respondent, the driver of the Maruti car filed a written statement attributing negligence to the driver of the Tractor. 5th respondent, the insurer of the Maruti car admitted the policy and also attributed negligence to the driver of the Tractor. 3. PW1 was examined and Exts.A1 to A8 were marked on the side of the claimants. RW1 was examined and Ext.B1 was marked on the side of the respondents. The Tribunal, on an appreciation of evidence found that the accident occurred due to the negligence of drivers of both the vehicles involved in the accident and apportioned the M.A.C.A No. 1430/04 3 liability to 60% on the 2nd respondent and 40% on the 4th respondent and awarded a compensation of ` 2,30,500/- with 9% interest from the date of petition till realization and a cost of ` 5800/-. The Tribunal directed the respondents 1 and 2 to pay 60% of the compensation and 5th respondent to pay 40% of the compensation. The claimants have now filed this appeal claiming enhancement of the compensation while respondents 1 and 2 in the O.P filed an appeal M.A.C.A No. 2144/05 for setting aside the impugned award passed by the Tribunal as against those respondents. 4. Heard the counsel for the claimants and the counsel for the respondents. 5. The accident is not disputed. The findings of the Tribunal that the accident occurred due to the negligence of drivers of both the vehicles to the extent of 60 : 40 is also not challenged in this appeal. Therefore the main question which arises for consideration whether the claimants are entitled to any enhanced compensation? M.A.C.A No. 1430/04 4 6. There is another aspect in this case. The Tribunal has fixed the monthly income of the deceased as `3500/- which comes to `42,000/- per annum and awarded compensation under Section 163A of the Motor Vehicles Act. As the annual income of the deceased exceeds ` 40,000/-, the 2nd Schedule of the Motor Vehicles Act does not apply in this case and therefore, the Tribunal went wrong in awarding compensation under Section 163A of the Motor Vehicles Act. The award of the tribunal can only be taken as a compensation awarded under Section 166 of the Motor Vehicles Act. 7. The Tribunal awarded a total compensation of `2,30,500/-. The break up of the amount awarded is as under: Loss of dependency :` 2,24,000 Funeral expenses :` 4,000 Loss of estate :` 2,500 8. The counsel for the claimants sought enhancement of the compensation for the loss of dependency and on other M.A.C.A No. 1430/04 5 heads. 9. The Tribunal took the monthly income of the deceased as ` 3500/- which comes to ` 42,000/- per annum. After deducting 1/3 for his personal expenses, balance amount of `28,000/- was taken as his annual contribution to his family and considering the age of the 2nd claimant, the mother of the deceased adopted a multiplier of 8 and awarded ` 2,24,000/- for loss of dependency. The deceased was employed at hotel Hilda, Ponkunnam and was earning to ` 3500/- per month as salary as evidenced by Ext. A8, his salary certificate which was accepted by the Tribunal. Therefore, the compensation awarded by the Tribunal for loss of dependency appears reasonable. Tribunal awarded ` 4,000/- for funeral expense and ` 2000/- for loss of estate which are also in our view just and reasonable. 10. As we have found that the compensation can be awarded only under section 166 of the Motor Vehicles Act, claimants are entitled to a compensation for loss of love and M.A.C.A No. 1430/04 6 affection in the present case. Taking into consideration the age of the claimants and the deceased, we feel that a compensation of ` 20,000 would be reasonable for loss of love and affection. 11. Thus the claimants are entitled to an additional compensation of ` 20,000/- with interest at the rate of 9% per annum from the date of petition till realization and proportionate cost. 60% of the compensation has to be paid by the respondents 1 and 2 and 40% shall be paid by 5th respondent as ordered by the Tribunal and the same shall be effected within two months from the date of receipt of copy of this judgment. The appeal is disposed of as found above. A.K. BASHEER Judge P.Q. BARKATH ALI Judge PKK