IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 MACA.No. 1418 of 2008 -------------------------------- OPMV.592/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/2ND RESPONDENT: THE NEW INDIA ASSURANCE COMPANY LIMITED, TRIVANDRUM NOW REP. BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.P.JACOB MATHEW RESPONDENTS/APPLICANTS AND 1ST RESPONDENT: 1. BINDU, W/O.LATE RAJENDRAN, PARAVILA VEEDU, PANCHAKUZHI, PANACHAMOODU P.O., THIRUVANANTHAPURAM DISTRICT. 2. NINDU RAJ @ NEETHU RAJ (MINOR), S/O.LATE RAJENDRAN, DO. DO. 3. ROBIN (MINOR), S/O.LATE RAJENDRAN, DO. DO. 4. GNANASELVAM, W/O.LATE NESAMONY, DO. DO. 5. SHEREEF, RAGAM MANZIL, PANACHAMOODU PO, THIRUVANANTHAPURAM DISTRIC. BY ADV. SRI.SARIN PANICKER FOR R1 SRI.SASITH PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/10/2010 ALONG WITH MACA NO.2457 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.Basheer & P.Q.Barkath Ali, JJ. --------------------------------------------------- M.A.C.A.Nos.1418 & 2457 of 2008 --------------------------------------------------- Dated this the 27th day of October, 2010 COMMON JUDGMENT Basheer, J. Since these two appeals arise from the award passed by the Motor Accidents Claims Tribunal, Neyyattinkara on an application filed under Section 163(A) of the Motor Vehicles Act, they are being disposed of by this common judgment. While the insurer of the vehicle involved in the accident is the appellant in M.A.C.A.No.1418/2008, the claimants are the appellants in the other appeal. 2. The claim petition was filed by the mother, wife and two minor children of the deceased victim of the accident who, admittedly, was a headload worker. The case of the claimants before the Tribunal was that at about 4 p.m. on February 26, 2003, while the deceased victim was unloading rice bags from a lorry bearing Reg.No.KL-01/T 4620, the rice bags slipped and fell on his head resulting in some fatal injuries. He succumbed to the injuries on March 3, 2003, while he was undergoing MACA 1418&2457/08 2 treatment at the Medical College Hospital. The claimants impleaded the owner and insurer of the above vehicle in the claim petition contending that the accident occurred in the course of use of the vehicle in a public place. They claimed `.7.5 lakhs as compensation for the death of their sole bread winner. 3. The claim was resisted by the Insurance Company contending that the alleged mishap which lead to the death of the victim had no connection whatsoever with the vehicle which was kept stationary. However, it was admitted that the Company had issued a valid insurance policy in respect of the vehicle. It was further contended that the accident occurred inside a godown solely due to the negligence of the deceased himself and that no accident arose out of the use of the vehicle. 4. The Tribunal, after considering the documentary evidence adduced by the claimants, found that the accident occurred while the deceased was unloading rice bags from the insured vehicle. The Tribunal therefore held that the Company would be liable to pay compensation to the claimants. It was also noticed by the Tribunal that the deceased held an identity card MACA 1418&2457/08 3 issued by the Headload Workers' Welfare Committee, which clearly indicated that he was a headload worker at the time of his death. 5. The Tribunal took the notional monthly income of the deceased as Rs.2,000/- and applied a multiplier of 16 and thus reckoned the amount payable under the head “loss of dependency” as Rs.2,56,000/-. The Tribunal awarded a further sum of Rs.5,000/- towards loss of consortium, Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate. Thus, a total sum of Rs.2,65,500/- was awarded to the claimants. The said award is impugned by the claimants contending inter alia that the award was too meagre and inadequate. 6. The Insurance Company, in its appeal, assails the finding entered by the Tribunal that the accident occurred out of the use of the vehicle in a public place. The said contention, in our view, is no more available to the Insurance Company in view of the decision rendered by a Division Bench of this Court in New India Assurance Co. Ltd. v. Lakshmi (2000 (3) KLT 80). In the above case, the accident occurred when a fertilizer bag fell on MACA 1418&2457/08 4 the victim while it was being unloaded from a stationed lorry. In Babu v. Remesan (1995 (2) KLT 300), it has been held by another Division Bench of this Court that the word “use” employed in the Statute “need not necessarily be so intimate and closely direct as to make it “a motor accident” in the sense in which that expression is used in common parlance”. The Bench further held that “the test should be whether the accident was reasonably proximate to the use of a motor vehicle, whether or not the motor vehicle was in motion then.” 7. In view of the decisions referred to above, we have no hesitation to dismiss the appeal filed by the Insurance Company repelling all their contentions. We do so. 8. As regards the appeal filed by the claimants seeking enhancement, we are satisfied that in the facts and circumstances of the case the notional monthly income of the deceased has to be reckoned as Rs.3,000/- and the loss of dependency has to be accordingly re-calculated as hereunder: 3000 x 12 x 2 x 16 --------------------------- = 3,84,000 3 MACA 1418&2457/08 5 Similarly, appellants shall be entitled to get a sum of `.15,000/- under the head of loss of consortium as against `.5,000/- awarded by the Tribunal. Thus, appellants are entitled to get a sum of `.1,38,000/- as enhanced compensation. In all other respects the award passed by the Tribunal is confirmed. The appeals are disposed of in the above terms. (A.K.Basheer, Judge) (P.Q.Barkath Ali, Judge) tkv