IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 MACA.No. 731 of 2006(C) ----------------------- OPMV.133/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT/1ST RESPONDENT. --------------------------------------- M.PADMARAJ, S/O.LAKSHMANAN, MARAKKAR KANDY HOUSE, GANDHI ROAD, CALICUT-673001. BY ADV. SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER RESPONDENTS: --------------- 1. MAHMOOD HAJI, S/O.MOIDU, PARAKKAL HOUSE, P.O.,KATALUR, 673 531, VANMUKAM AMSOM KALATHUR DESOM. 2. VAHEEDA, D/O.MOHAMMED, MALAYIL PARAMB (HOUSE) P.O. MEPPAYIL, 673 109, VATAKARA. 3. NAFESA, W/O.MAHAMOOD HAJI, PARAKKAL HOUSE, PO.O.KATALUR PIN-673 531. 4. NATIONAL INSURANCE CO. LTD, DIVISION II, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE-673 001. 5. V.K.PADMANABHAN, S/O.CHOYI, VANNADIKUNI- THAZHA HOUSE, P.O.PALLIKKARA-673 522. 6. T.ANIL KUMAR, S/O.GOPALAN, THALLACHINTAVIDA HOUSE, THIKKODI-673 529. 7. ORIENTIAL INSURANCE CO. LTD, OFFICE CODE NO.44250, BRANCH OFFICE, VADAKARA, PIN-673 101. ADV. SRI.M.P.RAMNATH FOR R6 SMT.K.V.RESHMI FOR R1 TO R3. SRI.RAJAN P.KALIYATH FOR R4 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R7 SRI.P.JACOB MATHEW FOR R7 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/07/2011, ALONG WITH MACA NO.1096 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & N.K.BALAKRISHNAN, JJ. *********************** M.A.C.A No.731 of 2006-B & M.A.C.A No.1096 of 2008-A ***************************** Dated this the 19th day of July, 2011 JUDGMENT BASANT, J. Claimants and owner of a vehicle are the respective appellants. Claimants are aggrieved by the quantum of compensation ordered to be paid. The owner is aggrieved by the direction issued under Section 149(4) of the Motor Vehicles Act that the insurer must pay the amount and can thereafter recover the same from the insured/owner. 2. The deceased was travelling in a mini lorry. According to the claimants, he was the owner of vegetables which were being carried in the vehicle. 2 others were also available in the vehicle. The accident occurred on 08.05.2000. The deceased, a young man, aged 27 years, suffered injuries and succumbed to the same. The claimants are his father, mother and wife. They are aged 60, 55 and 25 years respectively on the date of the accident. Against a claim of Rs.5 lakhs, the Tribunal directed payment of a total amount of Rs.1,14,000/- as per the details shown below: M.A.C.A No.731 of 2006-B & M.A.C.A No.1096 of 2008-A 2 i) Love and affection : Rs. 10,000.00 ii) Loss of consortium : Rs. 5,000.00 iii) Transportation : Rs. 1,000.00 iv) Funeral expenses : Rs. 2,000.00 iv) Loss of economic offence : Rs.96,000.00 (1500X12X2/3X8) --------------------- Total : Rs.1,14,000.00 ========= 3. The said amount was ordered to be paid with interest @ 6% per annum. The insurer, ie. the 4th respondent, was directed to pay the amount and was permitted under Section 149 (4) to recover the same from the owner of the vehicle. 4. We shall first consider the grievance of the appellants/claimants in M.A.C.A No.1096 of 2008 that the amount of compensation awarded is painfully low. Called upon to explain the nature of the challenge, the learned counsel for the appellants submits that the amount awarded under the head `loss of consortium' to the 2nd claimant/wife, who was aged about 25 years, is too low. The deceased was aged 27 years. His wife M.A.C.A No.731 of 2006-B & M.A.C.A No.1096 of 2008-A 3 was aged 25 years. The amount of compensation awarded – Rs.5,000/- is painfully inadequate, we agree. We are satisfied that an amount of Rs.20,000/- will be just and fair compensation under that head. 5. The learned counsel then contends that the quantum of compensation awarded under the head of loss of dependency is perversely incorrect and low. Only an amount of Rs.96,000/- was awarded. The Tribunal reckoned Rs.1,500/- as the monthly income of the deceased in spite of the finding entered by the Tribunal on 08.05.2000 that the deceased was a vegetable merchant and he was accompanying the load of vegetables carried in the vehicle. In these circumstances, the learned counsel for the appellants/claimants contends that the quantum of monthly income reckoned by the Tribunal is grossly inadequate. The learned counsel then contends that the Tribunal in a most perverse manner reckoned the multiplier applicable to be only 8. For this, the Tribunal took into account the age of the eldest of the 3 claimants - ie. father, mother and wife of the deceased. That approach is absolutely incorrect. The wife being younger to the deceased, the multiplier applicable to M.A.C.A No.731 of 2006-B & M.A.C.A No.1096 of 2008-A 4 her must have been taken, at any rate, by the Tribunal, contends the learned counsel for the appellants. The deceased was a person belonging to the age group of 25-30 years and going by any calculation, we are satisfied that 17 must have been reckoned as the multiplier. We are further satisfied that considering the inputs available about the nature of the employment of the deceased, as can be seen from the earliest documents available, his monthly income as a vegetable merchant on 08.05.2000 should have been reckoned at least at Rs.3,000/- per mensem. 6. The above discussions lead us to the conclusion that the appellants are entitled to the following further amounts as compensation in addition to the amounts already awarded. i) Loss of dependency : Rs.3,12,000.00 [(3,000X12X2/3X17) = 4,08,000.00 minus 96,000.00] ii) Loss of consortium : Rs. 15,000.00 [20,000 minus 5,000] ......................... Total : Rs.3,27,000.00 ========= 7. We now come to the challenge in M.A.C.A No.731 of M.A.C.A No.731 of 2006-B & M.A.C.A No.1096 of 2008-A 5 2006 against the direction for payment under Section 149(4) of the Motor Vehicles Act permitting the insurer after making the payment to the claimants to recover the amount from the owner. The finding of the Tribunal that the deceased was accompanying the load of vegetables belonging to him is not challenged and we are satisfied that the same does not deserve to be interfered with. This would mean that the deceased was accompanying the load of vegetables belonging to him carried in the vehicle. Liability in respect of such a person - person accompanying the goods or representative of such a person, is compulsorily coverable liability under Section 147 of the Motor Vehicles Act after the amendment. Therefore the liability of such a person must be held to be covered. The learned counsel for the appellant/owner further points out that in respect of the other two passengers who were travelling in the vehicle, the insurance company has been directed to compensate the claimants. The insurance company has not challenged the said liability. Reliance is placed on the common award passed by the Tribunal dated 20.07.2005 in O.P(MV) No.658 of 2000 and O.P(MV) No.855 of 2000. M.A.C.A No.731 of 2006-B & M.A.C.A No.1096 of 2008-A 6 9. The learned counsel for the insurance company contends that those other passengers in the vehicle have been found by the Tribunal to be loading and unloading workers and the comprehensive policy of insurance covers liability in respect of such persons. The situation so far as the insurance company must be held to be different in respect of the deceased passenger in this case who, as found by the Tribunal, was accompanying his load of vegetables in the vehicle. Though the learned counsel for the insurance company attempts to assails the said finding of fact, we find absolutely no material to sustain the challenge against the said finding of fact. We concur with the finding of the Tribunal that the deceased in this case was accompanying the load of vegetables belonging to him carried in the vehicle. The scene mahazar indicates clearly the truth of this contention. Liability in respect of such owner of the goods is a risk/liability compulsorily coverable under Section 147(1) of the Motor Vehicles Act and we agree with the learned counsel for the appellant/owner that the impugned direction under Section 149 (4) is not justified. 10. In the result: M.A.C.A No.731 of 2006-B & M.A.C.A No.1096 of 2008-A 7 A) i) M.A.C.A No.1096 of 2008 is allowed; ii) The appellants are found entitled to an amount of Rs.3,27,000/- (Rupees Three lakhs and twenty seven thousand only) in addition to the amounts already awarded by the Tribunal; iii) We direct that interest be paid on the entire amounts due from the date of the claim to the date of payment/deposit @ 7.5% per annum. B) i) M.A.C.A No.731 of 2006 is allowed; ii) The direction that the 3rd respondent/insurer shall be entitled to recover the amount from the appellant/owner under Section 149(4) of the Motor Vehicles Act is set aside. (R.BASANT, JUDGE) (N.K.BALAKRISHNAN, JUDGE) rtr/