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 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 MACA.No. 654 of 2006() ---------------------- OPMV.807/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S): APPELLANT/CLAIMANTS/4TH RESPONDENT ------------------------------------------------ 1. PATHUMMAKUTTTY, W/O.LATE P.MOHAMMED, MODUVANNI HOUSE, PANDIKKAD P.O., MALAPPURAM DISTRICT. 2. P.ABDUL SAMMAD, S/O.LATE P.MOHAMMED, PODUVANNI HOUSE, PANDIKKAD P.O., MALAPPURAM DISTRICT. 3. P.AKBARALI, S/O.P.MOHAMMED, PODUVANNI HOUSE, PANDIKKAD P.O., MALAPPURAM DISTRICT. 4. P.MUMTHAS, D/O.LATE P.MOHAMMED, PODUVANNI HOUSE, PANDIKKAD P.O., MALAPPURAM DISTRICT. 5. P.SUBAIR, S/O.LATE P.MOHAMMED, PODUVANNI HOUSE, PANDIKKAD P.O., MALAPPURAM DISTRICT. 6. P.MOHAMMEDALI, S/O.P.MOHAMMED, PODUVANNI HOUSE, PANDIKKAD P.O., MALAPPURAM DISTRICT. 7. P.ABDUL MUNEER, S/O.LATE P.MOHAMMED, MINOR, REP. BY GUARDIAN AND MOTHER, THE 1ST APPELLANT. 8. P.ABBAS, S/O.LATE P.MOHAMMED, PODUVANNI HOUSE, PANDIKKAD P.O., MALAPPURAM DISTRICT. BY ADV. SRI.M.P.PRAKASH MACA.No.654/2006 RESPONDENT(S): RESPONDENTS -------------------------- 1. ALAVI, S/O.BEERANKUTTY, VALLIKAPARAMBIL HOUSE, NARUKARA, MANJERI, MALAPPURAM DISTRICT(DRIVER) 2. T.T.ABDUL AZEEZ, S/O.UMMER, THAZHETHALASSERI HOUSE, KARANTHOOR, P.O.KOZHIKODE (OWENR). 3. M/S.NATIONAL INSURANCE CO LTD., BRANCH OFFICE, KORAMBAYIL ARCADE, MANJERI, MALAPPURAM DISTRICT. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.654 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of November, 2010 JUDGMENT Barkath Ali, J. Appellants are the claimants in OP(MV)807/2001 on the file of the Motor Accidents Claims Tribunal, Manjeri. They are the mother, bother and sisters of deceased Shoukathali who died in a motor accident. In this appeal they challenge the judgment and award of the Tribunal dated October 17, 2005 awarding a compensation of Rs. 1,11,917/- for the loss caused to them on account of the death of deceased in that accident. 2. On August 5, 2000 at about 9.15 p.m., while the deceased was riding on his bicycle from Pandikkad twon to Thambanangadi along Pandikkad-Manjeri public road, he was knocked down by the lorry bearing Reg.No.KL-11C 559 driven by the first respondent. The deceased sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital. Alleging negligence against the driver of the lorry, the claimants filed the OP MACA.No.654/2006 2 under Sec.166 of the Motor Vehicles Act claiming a compensation of Rs.4,50,000/-. 3. Respondents 1 to 3 in the O.P. are the driver, the owner and the insurer of the offending lorry. The fourth respondent in the O.P. is the 8th appellant in this appeal, who is the brother of the deceased. Respondents 1 and 4 in the O.P. though entered appearance did not file any written statement. Second respondent in the O.P. remained absent before the Tribunal. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy of the lorry, but denied the liability. 4. PW1 was examined and Exts.A1 to A4 were marked on the side of the claimants before the Tribunal. Ext.B1 was marked on the side of the contesting third respondent. On an appreciation of evidence the Tribunal found that there was 50% contributory negligence on the part of the deceased and assessed a compensation of Rs. 2,23,833, but awarded only Rs. 1,11,917/- with interest at the rate of 6% per annum from the date of petition till realisation and a cost of Rs. 1,500/-. The claimants have now come up in appeal challenging the above finding of the Tribunal as well as the quantum of MACA.No.654/2006 3 compensation awarded by the Tribunal. 5. Heard the counsel for the appellants/claimants and the counsel for the Insurance Company. 6. The following points arise for consideration : 1. Whether the finding of the Tribunal that there was 50% contributory negligence on the part of the deceased can be sustained ? 2. Whether the claimants are entitled to any enhanced compensation ? Point No.1 7. The Tribunal found that there was 50% contributory negligence on the part of the deceased and reduced the the compensation to that extent. The claimant was cycling along the road while the accident occurred. The Tribunal came to the above conclusion on the ground that PW1 did not speak about the negligence of the driver. For several reasons, we find that the above finding of the Tribunal cannot be sustained. It is the admitted case that the deceased was riding his bicycle on the extreme side of the road which is on the correct side of the deceased. Further, police has registered the case against the driver of the lorry . No contra evidence was adduced on the side of the contesting Insurance Company to show that there was any MACA.No.654/2006 4 negligence on the part of the deceased. Therefore, the finding of the Tribunal that there was negligence on the part of both the driver of the lorry and the deceased cannot be sustained and we hold that the accident occurred solely due to the negligence of the driver of the lorry, the first respondent in the O.P. That being so, the claimants are entitled to the entire compensation assessed by the Tribunal i.e. Rs. 2,23,833/-. Point No.2 8. The next question for consideration is whether the claimants are entitled to any enhanced compensation. The Tribunal assessed a total compensation of Rs.2,23,833/-. The break up of the compensation assessed is as under: Transport to hospital - Rs. 1,000/- Funeral expenses - Rs. 2,000/- Loss of estate - Rs. 2,500/- Pain and suffering - Rs. 5,000/- Loss of dependency - Rs.2,13,333/- 9. The Tribunal took the annual income of the deceased as Rs. 20,000/- and after deducting 1/3 for his personal expenses, the balance amount was taken as his contribution to his family and adopted a multiplier of 16 and assessed Rs. 2,13,333/- towards loss of dependency. The deceased was aged 18 and was working as Salesman MACA.No.654/2006 5 in Automobile Shop. Ext.A4 is his salary certificate. Taking into consideration the above aspect, we feel that the monthly income of the deceased can be reasonably fixed at Rs. 2,500/- which comes to Rs. 30,000/- per annum. After deducting 1/3 towards his personal expenses, the balance amount of Rs. 20,000/- can be taken as his annual contribution to his family. The multiplier adopted by the Tribunal as 16 is not seriously challenged. Thus calculated for the loss of dependency, the claimants are entitled to a compensation of Rs. 3,20,000/- ( 20,000 x 16). Thus on this count, the claimants are entitled to an additional compensation of Rs.106667/-. 10. No compensation was awarded by the Tribunal for loss of love and affection. Taking into consideration the age of the deceased and the age of the claimants, we feel that a compensation of Rs. 20,000/- would be reasonable for loss of love and affection. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 11. There is another aspect in this case. 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 MACA.No.654/2006 6 petition till realisation for the compensation already awarded and also for the enhanced compensation. 12. In the result, the claimants are found entitled to the entire compensation assessed by the Tribunal i.e. Rs. 2,23,833/-. They are also found entitled to an additional compensation of Rs. 1,26,667/- with interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within 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 Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.654/2006 7