IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 MACA.No. 287 of 2007() ---------------------------------- OP(MV) .1095/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): APPELLANT/3RD RESPONDENT: ----------------------------------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., PONNANI NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY SRI.MATHEWS JACOB, SENIOR ADVOCATE BY ADV. SRI.P.JACOB MATHEW RESPONDENT(S): PETITIONERS AND 4TH RESPONDENT: ----------------------------------------------------------------------------------- 1. ABOOBACKER, S/O. MOHAMMED, KARIMBATTA VEEDU, CHEMMAMKUZHI, VALLAPPUZHA, OTTAPPALAM TALUK. 2. PATHUMMAKUTTY, W/O. ABOOBACKER -DO- -DO- 3. MIMUNA, W/O. VEERANKUTTY -DO- -DO-. 4. MUHAMMED MUSTHAFFA -DO- -DO-. 5. IBRAHIM -DO- -DO-. 6. NISHAD -DO- -DO-. 7. HAMZAKUTTY, S/O.ABOOBACKER -DO- -DO-. (NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1 AND 2 IN THE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL). R2 TO R7 BY ADV. SRI.R.VENUGOPAL SRI.R.SREEHARI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/02/2011, ALONG WITH MACA NO.1413 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. Nos.287 & 1413 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 7th day of February, 2011 JUDGMENT Barkath Ali, J. Both these appeals arise out of the same judgment and award of the Motor Accidents Claims Tribunal, Ottapalam in O.P.(MV)No.1095 of 2003 dated July 31, 2006. 2. One Mujeeb Rehiman died in a motor accident that occurred on October 23, 2003 at about 6.15 a.m. at Vallapuzha. The accident happened while deceased Mujeeb Rahiman was riding a motor cycle of the 4th respondent in the O.P. bearing registration No.KL-9G 8253 along Vaniyamkulam – Vallapuzha public road, he was knocked down by a bus bearing registration No.KL-9H 8255 driven by the 1st respondent in the O.P. Mujeeb Rahiman sustained serious injuries and he succumbed to the injuries sustained on the way to the hospital. Alleging negligence against 1st respondent in the O.P., the claimants who are the parents, sister and brothers of the deceased filed the Original MACA 287/2007 & con. case. 2 Petition before the Tribunal under section 166 of the Motor Vehicles Act, claiming a compensation of Rs.13,17,000/-. 3. The 1st respondent in the O.P., the driver of the offending bus, filed a counter admitting the accident but contended that the accident occurred due to the negligence of the deceased. The 3rd respondent in the O.P., the insurer of the offending bus, filed a counter admitting the policy but contended that there was no negligence on the part of the 1st respondent in the O.P., the driver of the bus. Exts.A1 to A6 were marked on the side of the claimants. Ext.B1 was marked on the side of the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the 1st respondent in the O.P. and awarded a compensation of Rs.4,24,000/- with interest @ 6% per annum from the date of petition till realization and a cost of Rs.4,000/-. The claimants have filed M.A.C.A. No.1413 of 2007 claiming enhancement of compensation awarded by the Tribunal and the 3rd respondent in the O.P. Insurance Company has filed M.A.C.A. No.287 of 2007 MACA 287/2007 & con. case. 3 challenging the finding of the Tribunal regarding negligence of the 1st respondent driver of the bus and also the quantum of compensation awarded by the Tribunal. 4. Heard learned counsel for the Insurance Company and learned counsel for the claimants. 5. The following points arise for consideration:- 1) Whether the finding of the Tribunal that the accident occurred solely due to the negligence of the 1st respondent driver of the bus can be sustained ? 2) Whether the claimants are entitled to any enhanced compensation? 6. The learned counsel for the Insurance Company argued that as the deceased had no driving licence at the time of the accident, the Tribunal should have found that there was also contributory negligence on his part. There is no substance in the above contention. It is proved in Ext.B1 charge sheet of the petty case registered against the owner of the motor cycle for having entrusted the vehicle with the deceased who has no valid driving licence at the time of the accident. Merely because the deceased has no driving MACA 287/2007 & con. case. 4 licence, it does not show that there is negligence on his part. On the other hand, the police has charged a case against the 1st respondent driver of the offending bus. No contra evidence was adduced by the contesting 3rd respondent to show that there was any negligence on the part of the rider of the motor cycle. Therefore, we confirm the finding of the Tribunal that there was no contributory negligence on the part of the deceased. 7. The next question for consideration is whether the claimants are entitled to any enhanced compensation. 8. The Tribunal awarded a compensation of Rs.4,24,000/-. Break up of the compensation awarded is as under:- Loss of dependency : Rs.3,84,000 Loss of love and affection : Rs. 30,000 Travelling expenses : Rs. 5,000 Funeral expenses : Rs. 5,000 ------------------ Total : Rs.4,24,000 ======= 9. The Insurance Company contended that the multiplier of 16 adopted by the Tribunal is excessive. MACA 287/2007 & con. case. 5 Taking into account the age of the deceased, as he was aged 20 at the time of the accident, and the parents, aged 58 and 52 respectively, we are of the view that the proper multiplier that can be adopted in this case is 11. The Tribunal took the monthly income of the deceased as Rs.3,000/- and after deducting 1/3rd for his personal expenses, balance amount of Rs.2,000/- per month was taken as his contribution to his family. According to the claimants, the deceased was conducting a business earning Rs.6,000/- per month. Since no document was produced to prove the same, the Tribunal is perfectly justified in fixing his monthly income as Rs.3,000/-. Thus calculated for the loss of dependency, the claimants are entitled to a compensation of Rs.2,64,000/- (Rs.2,000/- x 12 x 11) for the disability caused. 10. No compensation was seen awarded by the Tribunal for pain and suffering endured. Having regard to the facts circumstances of the case, we feel that a compensation of Rs.5,000/- would be reasonable on this MACA 287/2007 & con. case. 6 count. 11. Total compensation in this case comes to Rs.3,09,000/-. There is another aspect in this case. Claimants are parents and brothers and sister of the deceased. The 1st claimant father died. Claimants 3, 4 and 5 are aged 38, 33 and 26 respectively. Only 6th claimant brother is a minor aged 14. Therefore, we feel that the total compensation of Rs.3,09,000/- is reasonable in this case. 12. The Tribunal awarded interest only @ 6% per annum, which appears to be very low. The claimants are entitled to interest @ 7.5% per annum from the date of petition till realization. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. Regarding the apportionment and disbursement of the same, the direction of the Tribunal will stand. 13. Thus, the claimants are found entitled to only a compensation of Rs.3,09,000/- . They are entitled to interest @ 7.5% per annum from the date of petition till realization MACA 287/2007 & con. case. 7 with proportionate costs. The 3rd respondent insurer of the offending jeep is directed to deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. The award of the Tribunal is modified to the above extent. 14. In the result, M.A.C.A. No.287 of 2007 is dismissed and M.A.C.A. No.1413 of 2007 is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn