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 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 MACA.No. 2130 of 2008() ----------------------- OPMV.317/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): PETITIONERS ------------------------- 1. ALEEMA, W/O.LATE YUSUF THODUKADU HOUSE, LPR COLONY KORATTY KIZHAKKUMMURI VILLAGE,KORATTY EAST P.O. MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. AMEERKHAN.T.U, S/O.LATE YUSUF THODUKADU HOUSE, LPR COLONY KORATTY KIZHAKKUMMURI VILLAGE,KORATTY EAST P.O. MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 3. RAZIA (MINOR) AGED 17 YEARS D/O.LATE THODUKADU YUSUF, REPRESENTED BY HER GURDIAN-MOTHER ALEEMA, THODUKADU HOUSE, LPR COLONY KORATTY KIZHAKKUMMURI VILLAGE,KORATTY EAST P.O. MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 4. ABDUL SALEEM T.U.(MINOR)AGED 15 YEARS S/O. LATE THODUKADU YUSUF, REPRESENTED BY HIS GUARDIAN MOTHER ALEEMA, THODUKADU HOUSE, LPR COLONY,KORATTY KIZHAKKUMMURI VILLAGE, KORATTY EAST P.O.MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS/RESPONDENTS --------------- 1. JOEMON K.F. KARALUTHARA HOUSE, VADUTHALA P.O. ERNAKULAM DISTRICT. 2. SHAJU M.I.,S/O.MYPPAN ITTIANY KORATTY EAST P.O. 3. UNITED INDIA INSURANCE CO.LTD "SHARANYA" HOSPITAL ROAD, COCHIN. ADV. SRI.O.P.NANDAKUMAR FOR R1 SRI.V.A.AJAI KUMAR FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21/02/201, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2130 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of February, 2011 JUDGMENT Barkath Ali, J. Appellants are the claimants in OP(MV)317/2003 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. They are the wife and minor children of deceased Yusuf who died in a motor accident. In this appeal they challenge the judgment and award of the Tribunal dated May 6, 2008 awarding a compensation of Rs. 7,30,200/- for the loss caused to them on account of the death of deceased in that accident. 2. The accident occurred on February 17, 2003, while deceased Yusuf was pillion riding on the motor cycle bearing Reg.No.KL-7/AH 8113 ridden by the second respondent. When he reached at JTS Junction, Koratty, the motor cycle overturned the vehicle and the deceased sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital. First respondent in the O.P. was the registered owner of the vehicle. MACA.No.2130/2008 2 Alleging negligence against the second respondent, the claimants filed the O.P. before the Tribunal claiming a compensation of Rs.8,69,000/-. 3. Respondents 1 and 2, the owner and the rider of the offending motor cycle though entered appearance, did not file any written statement before the Tribunal. The third respondent, the insurer of the offending motor cycle, filed a written statement admitting the policy, but contended that the pillion riders are not covered by the policy issued by the company. 4. Exts.A1 to A7 were marked on the side of the claimant before Tribunal. Exst.B1 and B2 were marked on the side of the contesting third respondent. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the rider of the motor cycle, the second respondent and awarded Rs.7,30,200/- with interest @ 7% 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 and directed respondents 1 and 2, the owner and the driver of the offending motor cycle to pay the compensation. The claimants have now come MACA.No.2130/2008 3 up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal exonerating the Insurance Company. 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 second respondent is not challenged in this appeal. Therefore the main question which arises for consideration is whether the claimants are entitled to any enhanced compensation. It has also to be considered whether the risk of the deceased who was pillion riding on the offending motor cycle is covered under the policy issued in respect of the said vehicle. 7. The Tribunal awarded a total compensation of Rs.7,30,200/- The break up of the compensation amount awarded is as under: Loss of dependency - Rs.6,91,200/- Pain and suffering - Rs. 5,000/- Funeral expenses - Rs. 4,000/- Loss of consortium - Rs. 15,000/- MACA.No.2130/2008 4 Loss of love and affection - Rs. 15,000/- 8. Counsel for the claimants sought enhancement of the compensation for loss of dependency, for loss of love and affection and for pain and suffering endured by the deceased . 9. Deceased was aged 41 and was working as an Attendant in a hospital under the Health Department. The Tribunal took the monthly income of the deceased as Rs.4,800/- which works out to Rs. 57,600/- per annum. After deducting 1/3 for his personal expenses, the balance amount of Rs. 38,400/- was taken as his annual contribution to his family. The Tribunal adopted a multiplier of 18 and awarded Rs. 6,91,200/-. In the circumstances of the case, we feel that the compensation awarded under loss of dependency is just and reasonable. 10. For loss of love and affection, Rs. 15,000/- was awarded by the Tribunal which appears to be quite inadequate. Taking into consideration the age of the claimants, we feel that a compensation of Rs. 25,000/- would be reasonable on this count. Thus, on this count, the claimants are entitled to an additional compensation of Rs.10,000/-. 11. For the pain and suffering endured, Rs. 5,000/- was MACA.No.2130/2008 5 awarded by the Tribunal which appears to be very low. In the circumstances of the case, we feel that a compensation of Rs. 10,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 12. There is another aspect in this case. The Tribunal exonerated the Insurance Company on the ground that no additional premium was paid to cover the risk of the pillion rider. In this appeal, counsel for Insurance Company fairly conceded that Ext.B1, the policy issued in respect of the offending vehicle being a comprehensive policy, the risk of pillion rider is also covered. That being so, the third respondent is bound to indemnify the owner of the offending vehicle. That apart, the first respondent filed M.A.C.A.No.2193/2009 on the same ground wherein we have held that the third respondent the Insurance Company is bound to indemnify the owner of the vehicle. 13. In the result, the claimants are found entitled to an additional compensation of Rs. 15,000/-. They are entitled to interest @ 7% per annum from the date of petition till realisation and MACA.No.2130/2008 6 proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within one month from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.2130/2008 7