IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 MACA.No. 23 of 2005() --------------------- OPMV.263/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): PETITIONERS ------------------------- 1. PONNAMMA, AGED 65 YEARS, W/O.LATE KUNCHUTHARAKAN. 2. PADMAVATHY, AGED 46 YEARS, D/O.LATE KUNCHUTHARAKAN. 3. SANTHAKUMARI, AGED 42 YEARS, D/O.LATE KUNCHUTHARAKAN. 4. VILASINI, AGED 37 YEARS, D/O.LATE KUNCHUTHARAKAN. 5. BALASUBRAMANIAN, AGED 32 YEARS, S/O.LATE KUNCHUTHARAKAN. 6. GOPALAKRISHNAN, AGED 29 YEARS, S/O.LATE KUNCHUTHARAKAN. 7. RAJALAKSHMI, AGED 27 YEARS, D/O.LATE KUNCHUTHARAKAN. BY ADV. SRI.K.MOHANAKANNAN SMT.PRAVITHA A.R RESPONDENT(S): RESPONDENTS --------------- 1. N.SUBRAMANIAN, AGED 36 YEARS, S/O.NARAYANAN, KORANGOTTU VEEDU, THENKURUSSI P.O., PALAKKAD DISTRICT, (DRIVER OF KSRTC BUS NO.KI-15/1390) 2. THE MANAGING DIRECTOR, KSRTC., TRIVANDRUM(OWNER OF KSRTC BUS NO.KL-15/1390) ADV. SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC FOR R2 SHRI.JOHNSON P.JOHN, SC, KSRTC FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09/07/2010 ALONG WITH MACA NO. 1107 OF 2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A.23/2005 & 1107/2004 ------------------------------------------------------ Dated: JULY 9, 2010 JUDGMENT Barkath Ali, J. Both these appeals under sec.173 of the Motor Vehicles Act arise out of same judgment and award of the Motor Accidents Claims Tribunal, Ottappalam in OP(MV) 263/2002 dated May 4, 2004. M.A.C.A.23/2005 is filed by the claimant and M.A.C.A. 1107/2004 is filed by the 2nd respondent, KSRTC. 2. The facts leading to these appeals in brief are these: The claimants are the wife, major sons and daughters of deceased Kunchutharakan. The deceased was aged 72 at the time of the accident and was an agriculturist earning Rs.3000/- per month, according to the claimants. On December 11, 2001 at about 9.45 a.m. the deceased was standing on the southern side of Cherupalchery - Palakkad road at Mangode. At that time he was knocked down by the KSRTC bus bearing registration No.KL15/1390. The deceased sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment at Amala Hospital on December 27, 2001. According to the claimants the accident occurred due to the negligence on the part of the 1st respondent, driver of the KSRTC bus. The 1st respondent as the driver and the M.A.C.A.23/2005 & 1107/2004 2 2nd respondent as the owner of the offending bus are jointly and severally liable to pay compensation to the claimants who are the legal heirs and dependents of the deceased. The claimants claimed a compensation of Rs.2,50,000/-. 3. Respondents 1 and 2 in their written statement admitted the accident, but contended that there was no negligence on the part of the 1st respondent and that the accident occurred while the deceased attempted to cross the road suddenly. 4. PW.1 was examined and Exts.A1 to A10 were marked on the side of the claimants before the Tribunal. Respondent No.1 was examined as RW.1 on the side of the respondents. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence on the part of the 1st respondent and awarded a compensation of Rs.1,15,650/- with interest @ 9% per annum from the date of petition till realisation and a cost of Rs.1250/-. The claimants have now in M.A.C.A.23/2005 claimed enhancement of the compensation awarded. The 2nd respondent KSRTC has filed M.A.C.A. 1107/2004 contending that the compensation awarded is excessive. 5. Heard the counsel for the appellants in both these appeals. As both these appeals arise out of the same judgment, they are M.A.C.A.23/2005 & 1107/2004 3 disposed of by this common judgment. 6. The counsel for the claimants submitted that the compensation awarded by the Tribunal is inadequate and claimed enhancement of the compensation for the loss of dependency, pain and suffering endured by the deceased, loss of consortium, towards medical expenses and for loss of love and affection. 7. Counsel for the appellant in MACA 1107/2004 i.e. KSRTC submitted that the compensation awarded is excessive as the deceased was aged 72 at the time of the accident. He further contended that the Tribunal should have believed the evidence of RW.1, driver of the bus, and held that the accident occurred while the deceased attempted to cross the road. 8. The following points arise for consideration: I. Whether the finding of the Tribunal that the accident occurred due to negligence on the part of the 1st respondent can be sustained? II. Whether the compensation awarded by the Tribunal is excessive? III. If not, whether the claimants are entitled to any enhanced compensation? M.A.C.A.23/2005 & 1107/2004 4 9. On the side of the claimants PW.1, the 6th respondent, was examined. The Tribunal disbelieved the evidence of RW.1, driver of the KSRTC bus, that the accident occurred when the deceased suddenly attempted to cross the road, for obvious reasons. Further, police has charged a case against the 1st respondent. Therefore we find no reason to come to a different conclusion. In our view the Tribunal is perfectly justified in finding that the accident occurred due to the negligence on the part of the 1st respondent. 10. The Tribunal awarded a total compensation of Rs.1,15,650/-. The break up of the compensation awarded is as under:- loss of dependency - Rs.60,000/- pain and sufferings - 10,000/- bystander's expenses - 2,250/- medical expenses - 33,400/- loss of consortium - 5,000/- loss of estate and funeral expenses - 5,000/- 11. The Tribunal took the monthly income of the deceased as Rs.1500/-. After deducting 1/3rd for his personal expenses, the balance amount of Rs.1000/- is taken as his monthly contribution to his family, which comes to Rs.12,000/- per annum. Taking into M.A.C.A.23/2005 & 1107/2004 5 consideration the age of the deceased, a multiplier of 5 was adopted and the Tribunal granted Rs.60,000/- towards loss of dependency. Taking into consideration the age of the claimants and the fact that the children are all major and married persons, we feel that the compensation awarded by the Tribunal towards loss of dependency is reasonable and not excessive. 12. The Tribunal awarded Rs.10,000/- towards pain and suffering endured by the deceased which appears to be very low. The deceased died about 16 days after the incident. Therefore we feel that a compensation of Rs.15,000/- would be reasonable for the pain and suffering endured by the deceased. 13. Towards medical expenses the Tribunal awarded Rs.33,400/-. But the claimants produced bills worth Rs.61,865/-, according to the claimants. That apart, the deceased was in the hospital for 16 days. Therefore we feel that a compensation of Rs.50,000/- would be reasonable towards medical expenses. 14. Rs.5000/- was awarded by the Tribunal for the loss of consortium which appears to be quite inadequate. In the circumstances of the case, we feel that a compensation of Rs.10,000/- would be reasonable on this count. 15. No compensation was awarded by the Tribunal for loss of M.A.C.A.23/2005 & 1107/2004 6 love and affection. Taking into consideration the age of the deceased and the claimants, we feel that a compensation of Rs.15,000/- would be reasonable for loss of love and affection. 16. Thus the claimants are found entitled to an additional compensation of Rs.41,600/- with interest @ 9% per annum from the date of petition till realisation. As we have found that the compensation awarded by the Tribunal is not excessive and awarded enhancement of the compensation, M.A.C.A.1107/2004 is dismissed and M.A.C.A.23/2005 is disposed of as found above. The 2nd respondent in the O.P., who is the appellant in M.A.C.A.1107/2004 shall deposit the enhanced compensation with interest and costs within two months from the date of receipt of a copy of this judgment with notice to the claimants. The award of the Tribunal is modified to the above extent. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-