IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 MACA.No. 825 of 2006() ---------------------- OPMV.70/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): PTNR.& ADDL.PTNRS.2 TO 5 IN OP(MV): ------------------------------------------------------------ 1. JOLLY ABRAHAM, MANGALASSERY HOUSE, MANEED P.O.,EZHAKKARANADU,ERNAKULAM DIST.(DIED). BEING AN INVALID PATIENT WHO IS IN A `COMA'STATE, REP.BY HIS FATHER AND NEXT FRIEND MR.ABRAHAM, MANGALASSERY, MANEED P.O.,EZHAKKARANADU,EKM.DIST.& NOW R/AT PUTHENPURACKAL HOUSE,THIRUVANKULAM,EKM.DT 2. ABRAHAM, AGED 58 YEARS, S/O. PAILY, MANGALASSERY, MANEED P.O., EZHAKKARANADU, ERNAKULAM DISTRICT. 3. MARY, AGED 52 YEARS, MOTHER OF JOLLY ABRAHAM, MANGALASSERY, MANEED P.O. EZHAKARANADU, ERNAKULAM DISTRICT. 4. GEO, AGED 21 YEARS, W/O. LATE JOLLY ABRAHAM, MANEED P.O., EZHAKKARANAD, ERNAKULAM DISTRICT. 5. MERINE, AGED 4 YEARS, D/O. LATE JOLLY ABRAHAM, MANGALASSERY HOUSE, MANEED P.O., EZHAKKARANADU (BEING A MINOR REP.BY MOTHER 4TH APPELLANT GEO). BY ADV. SRI.A.P.SUBHASH RESPONDENT(S): RSPDTS 1 TO 3 IN OP(MV)-DRIVER,OWNER & INSURER: -------------------------------------------------------------- 1. SALIM, S/O. MUHAMMED ALI, KANAKAKUNNEL VEETTIL, CHERUVATTOOR KARA, ERAMALLOOR VILLAGE, ALAPPUZHA DISTRICT. 2. SAINUDEEN, CHIRAKKAKUDY, PAIPRA, MUVATTUPUZHA. 3. THE BRANCH MANAGER, ORIENTAL INSURANCE CO. LTD., MUVATTUPUZHA BRANCH. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No. 825 of 2006 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 9th day of December, 2010 JUDGMENT Barkath Ali, J. Appellants are Addl. Claimants 2 to 5 in O.P.(MV) No.70 of 2002 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. In this appeal they challenge the judgment and award of the Tribunal dated January 5, 2006 awarding a compensation of Rs.2,74,500/- for the loss caused to the deceased/1st claimant on account of the injuries sustained by him in a motor accident. 2. The accident happened on February 17, 2001 at Mathirappilly. While he was riding a motor cycle bearing registration No. KLX/2688 along Kothamangalam – Muvattupuzha road he was knocked down by a jeep bearing registration No.KL-5F/1591, driven by the 1st respondent. The deceased/1st claimant sustained the following injuries:- “1) Severe head injury. 2) Fracture right frontal bone. MACA 825/2006 2 3) Right fronto-parietal subdural heaematoma. 4) C5-C6 dislocation. 5) Quadriparesis. 6) Post-traumatic seizure disorder-pressure sore.” 3. The deceased 1st claimant field the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.10 lakhs. While undergoing treatment in the hospital, he died on February 10,2002. Therefore his legal heirs i.e., parents, wife and one minor child were impleaded as Addl. Claimants 2 to 5. The O.P. was got amended and they claimed a compensation of Rs.15 lakhs for the loss caused to them on account of the death of the 1st claimant in the accident. 4. The 1st respondent, driver of the offending jeep, remained absent and was set ex parte by the Tribunal. The 2nd respondent, owner of the offending jeep, though entered appearance before the Tribunal, did not file any written statement. The 3rd respondent, insurer of the offending jeep, field a written statement admitting the policy, but attributed MACA 825/2006 3 negligence to the 1st claimant. 5. Exts. A1 to A19 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 and awarded a compensation of Rs.2,74,500/- with interest at 6% per annum from the date of petition till realization for the injuries sustained by the deceased/1st claimant. The Tribunal rejected the contention of the appellants that the deceased died as a result of the injuries sustained in the accident. The claimants 2 to 5 have come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the above said finding of the Tribunal. 6. Heard the learned counsel for the claimants and the learned counsel for the Insurance Company. 7. Following points arise for consideration? 1) Whether the deceased 1st claimant died as a result of the injuries sustained in the accident? 2) Whether the claimants 2 to 5 are entitled to MACA 825/2006 4 compensation for the loss caused to them on account of the death of deceased 1st claimant in the accident? 3) Whether the the appellants are entitled to any enhanced compensation? 8. We shall first consider the question whether the deceased 1st claimant died as a result of the injuries sustained by him in the accident. As stated above, the 1st claimant sustained very serious injuries and became paraplegie and he died on February 17,2001 while undergoing treatment in the hospital. Ext.A5 is the copy of the post-postmortem certificate wherein it is clearly stated that deceased died as a result of the injuries sustained in the accident. The police has also charged the case against the 1st respondent, driver of the offending vehicle, under section 304A IPC. Therefore, we hold that the 1st claimant died as a result of the injuries sustained in the accident. It follows that claimants 2 to 5 are entitled to compensation for the loss caused to them on account of the death of the 1st claimant in the accident. The finding of the MACA 825/2006 5 Tribunal that claimants 2 to 5 cannot claim such a compensation, as deceased 1st claimant had claimed compensation for the injuries sustained by him, cannot be sustained. 9. Next point to be considered is whether the appellants are entitled to any enhanced compensation. The Tribunal awarded a total compensation of Rs.2,74,500/-. Break up of the compensation awarded is as under:- Transport to hospital : Rs. 3,000/- Damage to clothing : Rs. 500/- Loss of earning : Rs. 25,000/- Extra nourishment : Rs. 20,000/- Bystander's expenses : Rs. 18,000/- Treatment expenses : Rs.2,03,000/- Funeral expenses : Rs. 5,000/- ------------------ Total : Rs.2,74,500/- ======== 10. As we have found that the 1st claimant died as a result of the injuries sustained in the accident and that his legal heirs and dependents (claimants 2 to 5) are entitled to a compensation for the loss caused to them on account of the death of the 1st claimant. Therefore, in addition to the MACA 825/2006 6 compensation amount awarded by the Tribunal, they are also entitled to a compensation for the loss of dependency, loss of love and affection, for pain and suffering endured and for the loss of consortium. 11. Deceased 1st claimant was an Automobile Engineer, earning a monthly income of Rs.10,000/-, according to the claimants. Ext.A1 salary certificate would show that the deceased 1st claimant was employed as a Forman on a salary of Rs.4,000/-. Taking in to consideration the above aspect, we feel that his monthly income can reasonably be fixed at Rs.4,000/-. After deducting 1/3rd for his personal expenses balance amount of Rs.32,000/- per annum can be taken as his annual contribution to his family. The deceased was aged 25 at the time of the accident, which is evidenced by Ext.A9 copy of the school certificate. Therefore, a multiplier of 18 would be reasonable in this case. Thus calculated for the loss of dependency claimants 2 to 5 are entitled to a compensation of Rs.5,76,000/-. 12. Taking into consideration the age of the widow and MACA 825/2006 7 the minor child and that of the parents of the deceased, we feel that a compensation of Rs.20,0000/- would be reasonable for the loss love and affection. 13. The accident occurred on February 17,. 2001 and the 1st claimant died on February 10, 2002. He was completely paraplegie and was bedridden. Therefore, we feel that a compensation of Rs.50,000/- would be reasonable for pain and suffering endured by deceased 1st claimant. 14. The 4th claimant widow was aged 21 at the time of the accident. Therefore, we feel that a compensation of Rs.20,000/- for loss of consortium would be reasonable. 15. There is another aspect in this case. As we have already awarded a compensation for the loss sustained by the appellants additional claimants 2 to 5 on account of the death of the 1st claimant, they will not be entitled to Rs.25,000/- awarded by the Tribunal towards loss of earning. Thus the claimants are entitled to an additional compensation of Rs.8,15,500/-. 16. In the result, the claimants are found entitled to MACA 825/2006 8 additional compensation of Rs.8,15,500/-. The Tribunal awarded interest only @ 6% per annum from the date of petition till realization, which appears to be very low. The claimants are entitled to interest at the rate of 7.5% per annum from the date of petition petition till realization for the compensation already awarded by the Tribunal and also for the enhanced compensation. They are entitled to proportionate costs. The 3rd respondent/Insurance Company shall deposit the amount 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. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.