IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 MACA.No. 298 of 2006() --------------------------------- OPMV.1556/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/3RD RESPONDENT --------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, TRIPUNITHURA, NOW REPRESENTED BY ITS ASSISTANT MANGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENTS: PETITIONERS & RESPONDENTS 1 & 2 -------------------------- 1. SREEJA.S, D/O.SANKARA NARAYANA PILLAI, B-1-02, HOC TOWNSHIP, IRUMPANAM. 2. SUNDARI AMMA, W/O.V.RAMAKRISHNA PILLAI, DO. DO. 3. SANKARA NARAYANA PILLAI, DO. DO. 4. SREEJITH.S, DO. DO. SRI.ANIL S.RAJ FOR R1 & R2 SMT.RAJANI.K.N. FOR R1 & R2 SMT.MANJUSHA MOHANDAS FOR R1 & R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.A.C.A.NOS.298 & 735 OF 2006 () ----------------------------------- Dated this the 17th day of September, 2008 J U D G M E N T KOSHY,J. A woman at the age of 42, sustained fatal injuries while she was travelling as a pillion rider on the scooter driven by her son, 2nd respondent before the tribunal. The scooter was owned by her husband (1st respondent before the tribunal). Tribunal found that the accident occurred due to the negligence of the rider of the vehicle and since the scooter was insured, Insurance company was directed to deposit an amount of Rs.1,80,000/-. Policy was admitted in this case. Coverage of insurance is also admitted. Liability of the Insurance company is not disputed. Only dispute raised by the Insurance company is that the amount awarded is very high because Tribunal has awarded compensation to the 2nd and 3rd respondents even though 2nd respondent was responsible M.A.C.A.NOS.298 & 735 OF 2006 2 for the accident. Insurance company has no liability to pay compensation to the tortfeasors. The claimants also filed an appeal contending that amount awarded is very low. We will first consider the appeal filed by the claimants. Claim was filed by the daughter and mother of the deceased. Total amount claimed was Rs.7,18,000/-, which was limited to Rs.5,62,750/-. According to the claimants, amount awarded is very low. Deceased was aged 42. She was a housewife. Tribunal has fixed only the notional income for a non earning person as the notional income, which is Rs.15,000/- per year. Service of a house wife is also valuable. She was nurturing the needs of the family. We are of the view that atleast Rs.1,500/- ought have been taken as the monthly income as the accident occurred in 1997. Therefore, Rs.18,000/- will be the notional income for a year. Tribunal has taken 15 as the multiplier taking guidelines from the 2nd schedule and that requires no change. Therefore, compensation payable for loss of dependency will be Rs.1,500 x 12 x 15 = Rs.2,70,000/-, after deducting 1/3 rd towards personal expenses, loss of dependency will be 1,80,000/-. For funeral expenses and transportation M.A.C.A.NOS.298 & 735 OF 2006 3 expenses, Tribunal has awarded Rs.5,000/-. For pain and sufferings tribunal has awarded Rs.10,000/-. It is submitted that as can be seen from the discharge summary that the deceased was fighting for nine days and only after the 9th day, she died. We are of the view that instead of Rs.10,000/-, Rs.15,000/- ought to have been granted for pain and sufferings and another Rs.10,000/- was also awarded for loss of love and affection. For a claim filed by the daughter and mother of the deceased, loss of consortium should not have been granted by the Tribunal. We are of the view that for loss of love and affection, Rs.10,000/- granted needs no enhancement. No amount was granted for medical expenses. It is true that the medical bills were not produced but discharge summary was produced as Ext.A7. The above would show that she was treated in the private hospital, Medical Trust Hospital and it is a expensive hospital and life saving medicines were given to him and operation was done. Even though Rs.15,000/- was claimed for medical expenses, in the absence of bills, we cannot give such an amount, but we award Rs.5,000/- as medical expenses. So the total compensation payable will be M.A.C.A.NOS.298 & 735 OF 2006 4 Rs.2,10,000/-. 2. We agree with the contention of the insurer that tortfeasor, the son of the deceased is not entitled to get compensation from the Insurance company. Accident occurred due to the negligence of the rider of the motor cycle who is none other than the son of the deceased. Liability to the respondents is only vicarious liability and he cannot be denied compensation. 1/3 rd of the amount was ordered to be given to the rider of the motor vehicle, who was responsible for the accident. That has to be deducted. Therefore, we are of the view that 1/3 rd share of the compensation amount, that is, Rs.70,000/- (the amount payable to the 2nd respondent) should be deducted. The balance amount of Rs.1,40,000/- should be deposited with 7.5% interest from the date of application till its deposit. A consolidated amount of Rs.10,000/- is allowed to be withdrawn by the mother of the deceased (2nd claimant in M.A.C.A.No.735/2006) and balance to be withdrawn in equal proportion by the daughter (1st claimant in M.A.C.A.No.735/2006) and husband (1st M.A.C.A.NOS.298 & 735 OF 2006 5 respondent in M.A.C.A.No.735/2006). Since the accident occurred in 1997, more than 10 years ago, they are allowed to withdraw the same. Both appeals are partly allowed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 17th September, 2008