IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 MFA.No. 1023 of 2002(A) --------------------------------- OPMV.648/1995 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA ......................................... APPELLANT: 3RD RESPONDENT: ---------------------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, MANDYA NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB RESPONDENTS: PETITIONERS AND RESPONDENTS 4 & 5: ---------------------------------------------------------------------------------- 1. CHINNAMMA GEORGE, W/O. LATE P.T.GEORGE @ MARKOSE, MEENCHALPATTU, CHAPPILA, PULPALLY P.O., WAYANAD DISTRICT. 2. JISHA N.G., D/O. LATE P.T.GEORGE @ MARKOSE, -DO- -DO-. 3. JINESH M.G., S/O. LATE P.T.GEORGE @ MARKOSE, -DO- -DO-. 4. P.J.MARKOSE, S/O. PATHROSE, ILLIKKAL HOUSE, CHAPPILA, PULPALLY P.O., WAYANAD DIST. 5. THE NEW INDIA ASSURANCE COMPANY LIMITED, KALPETTA, WAYANAD DISTRICT. (NO RELIEFS AND CLAIMED AGAINST RESPONDENTS 1,2 & 6 IN THE O.P. AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL). R5 BY ADV. SRI.P.R.RAMACHANDRA MENON THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16/01/2008 ALONG WITH M.F.A NO. 1326/2002 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO. 7087/2002 IN M.F.A NO. 1023/2002 A. DISMISSED 16/01/2008. SD/- J.B.KOSHY, JUDGE. SD/- K.HEMA, JUDGE. True copy tga J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.Nos.1023, 1084, 1085, 1086, 1087, 1088, 1109,1326, 1328 of 2002, 87, 88, 89 and 122 of 2003 ------------------------------------- Dated 16th January, 2008 JUDGMENT Koshy,J . All these appeals are arising out of the common award passed by the Motor Accidents Claims Tribunal, Wayanad in an accident involving a jeep bearing registration No.KL.12/4322 and a lorry bearing registration No.MYA-4163, on 7.3.1995 at 10.30 p.m. Ext.B1 charge- sheet produced by the insurance company shows that, in the above accident, four persons died out of which three were passengers in the jeep and the fourth person was the jeep driver himself. Apart from the above, three passengers and three pedestrians sustained injuries. Legal heirs of the jeep driver (though mentioned as passenger of the jeep in the award) filed O.P.(M.V)No.648 of 1995. Against the award in O.P.(M.V) No.648 of 1995, insurance company filed M.F.A.No.1023 of 2002 questioning the negligence aspect and claimants filed M.F.A.No. 122 of 2003 demanding enhancement of compensation. O.P.(M.V) No.649 of 1995 was filed by the legal representatives of a deceased passenger K.C.Joseph @ Kuttichettan. In that case, Insurance company filed M.F.A.No.1088 of 2002 and claimants filed M.F.A.No.1326 of 2002. O.P.(M.V)No.757 of 1995 was filed by an injured passenger. Insurance MFA.1023/2002 & connection 2 company filed M.F.A.No.1084 of 2002. In this case, it appears that the appeal filed by the claimant for enhancement of compensation was dismissed finding that sufficient amount was ordered. O.P.(M.V) No.458 of 1995 was filed by an injured pedestrian. Insurance Company filed M.F.A.No.1085 of 2002. O.P.(M.V)No.457 of 1995 was filed by another injured pedestrian. Insurance company filed M.F.A.No.1086 of 2002 and claimant filed M.F.A.No.89 of 2003. O.P. (M.V)No.496 of 1995 was also filed by an injured pedestrian. Since the amount awarded was below Rs.10,000/=, the writ petition filed by the insurance company was dismissed without prejudice to other contentions and no appeal is pending. O.P.(M.V)No.645 of 1995 was filed by the legal representatives of a deceased passenger. Insurance company filed 1087 of 2002 and claimants filed M.F.A.No.1328 of 2002. Another injured passenger filed O.P.(M.V)No.33 of 1996. Insurance company filed M.F.A.No.1109 of 2002 and claimant filed M.F.A.No.87 of 2003. O.P.(M.V)No.453 of 1995 was filed by the legal representatives of one Joseph Anithottathil who was a passenger in the Jeep. Their claim was dismissed by the Tribunal on the ground that it was not proved that he died in the accident as legal representatives of another Joseph also filed a claim for compensation. Claimants filed M.F.A.No.88 of 2003. Since common issues are to be decided, we have heard all the appeals together. MFA.1023/2002 & connection 3 2. The first contention to be considered is the negligence aspect. In all these cases, insurance company which insured the lorry filed appeals questioning the negligence aspect. The F.I. Statement shows that the lorry driven in a rash and negligent manner hit three pedestrians and thereafter hit the jeep and the accident occurred. Seizure mahazar also shows the same. Ext.B1 charge-sheet was produced to show that total four persons died and others were injured in the accident. Even though jeep driver died, charges were framed against him as he was also found to be negligent. The statement attached to Ext.B1 charge-sheet shows that the eye witnesses stated that the lorry driver was negligent. At the same time, the jeep driver was also negligent. No oral evidence was adduced (there is a submission that Tribunal refused to allow oral evidence to be adduced). Parties relied on the documents produced and marked. Ext.B1 charge-sheet was not considered by the Tribunal. Therefore, we have considered the final report filed by the police along with the statements. The totality of the evidence wound show that the lorry driver was mainly negligent. At the same time, if the jeep driver was vigilant, he could have avoided the accident. He was coming with high speed and was unable to control or stop the jeep immediately after seeing the accident involving lorry and pedestrians. Therefore, with regard to the injury to the pedestrians, we are of the opinion that lorry driver alone was negligent. But, with regard to hitting with the MFA.1023/2002 & connection 4 jeep after knocking down the pedestrians, 25% negligence can be apportioned to the jeep driver and 75% to the lorry driver. With regard to the claim made by the legal representatives of the jeep driver in O.P.(M.V)No.648 of 1995, after assessing the total compensation, 25% has to be deducted as 25% negligence is attributed on the part of the jeep driver. But, with regard to the claims in respect of the passengers in the jeep, 25% of the amount has to be borne by the insurance company which insured the jeep. 3. Now, we will consider the quantum of compensation payable in these cases. First we will consider the claims in O.P.(M.V) No.648 of 1995. M.F.A.No.1023 of 2002 was filed by the insurance company and M.F.A.No.122 of 2003 was filed by the claimants in respect of the death of driver of the jeep. The deceased was aged 48 at the time of the accident. Tribunal has fixed Rs.1,200/= as his monthly income. He was a professional jeep driver having due licence to drive a jeep. According to the claimants, his monthly income was Rs.5,000/=. We are of the opinion that a jeep driver will get at least Rs.100/= per day and he may get 24 – 26 days' work in a month and, therefore, his monthly income can be fixed as Rs.2,400/=. After deducting one third for personal expenses, Rs.1,600/= can be taken as the multiplicand for calculating loss of monthly contribution to the family and loss of dependency. Taking guidelines from the second MFA.1023/2002 & connection 5 schedule, the apt multiplier is 13. Therefore, compensation payable for loss of dependency will be Rs.2,49,600/= (1,600 x 12 x 13). Tribunal has awarded Rs.1,24,800/= in this count. With regard to pain and suffering, Rs.5,000/= was awarded by the Tribunal. Rs.500/= was awarded towards transport to hospital, Rs.5,000/= towards loss of consortium, Rs.5,000/= towards loss of love and affection, Rs.100/= towards damage to clothing and Rs.2,000/= towards funeral expenses. We see no ground to enhance the same. So, the total compensation will be Rs.2,67,200/= out of which 25% has to be deducted for the contributory negligence. So, the compensation payable will be Rs.2,00,400/=. Tribunal has awarded a total compensation of Rs.1,42,400/=. So, the additional compensation payable will be Rs.58,000/=. The above Rs.58,000/= should be deposited by the third respondent insurance company with 7.5% interest from the date of application till its deposit, over and above the amount decreed by the Tribunal. On deposit of the amount, the claimants are allowed to withdraw the same in the same proportion as fixed by the Tribunal. 4. Against the award in O.P.(M.V.)No.649 of 1995, Insurance company filed M.F.A.No.1088 of 2002 and claimants filed M.F.A.No1326 of 2002. A construction worker, at the age of 50, died in the accident. Tribunal has taken Rs.1,200/= as his monthly MFA.1023/2002 & connection 6 income. Even for a non-earning person Rs.1,250/= was fixed as the monthly income (Rs.15,000/= per year) in the second schedule . Considering this aspect and being a construction worker, we fix Rs.3,000/= as the monthly income. After deducting one third for personal expenses, Rs.2,000/= is fixed as the monthly loss of dependency income. Tribunal has taken only 8 as the multiplier. Taking second schedule as guideline, 11 ought to have been taken as the multiplier. If that be so, dependency compensation payable will be Rs.2,64,000/= (2000 x 12 x 11). Tribunal has awarded only Rs.76,800/= under this head. Tribunal has also awarded Rs.500/= towards transport to hospital, Rs.100/= towards damage to clothing, Rs.5,000/= towards pain and suffering, Rs.5,000/= towards loss of consortium, Rs.5,000/= towards loss of love and affection and Rs.2,000/= towards funeral expenses. So, the total compensation payable will be Rs.2,81,600/=, out of which, being a passenger in the jeep, 25% should be deposited by the insurer of the jeep (5th respondent New India Assurance Co. Ltd.) and 75% should be deposited by the insurer of the lorry (3rd respondent Oriental Insurance Co. Ltd.). After deducting the amount already paid, balance amount should be deposited by the insurance companies (their respective shares) with 7.5% interest from the date of application till its deposit. On deposit of the amount, claimants are allowed to withdraw the same as apportioned by the Tribunal. MFA.1023/2002 & connection 7 5. O.P.(M.V)No.757 of 1995 was filed by an injured passenger. Insurance company filed M.F.A.No.1084 of 2002. Total compensation awarded was Rs.12,700/= with interest. Out of the above total awarded amount, 75% should be deposited by the third respondent insurance company. Since the insurer of the jeep was not arrayed as a party, we cannot direct the other insurance company to deposit the amount. 6. In O.P.(M.V)No.458 of 1995 (M.F.A.No.1085 of 2002), the injured was a pedestrian and we have already held that he sustained injuries solely due to the negligence of the lorry driver and no interference is required in the award. 7. With regard to O.P.(M.V)No.457 of 1995, insurance company filed M.F.A.No.1086 of 2002 and claimant filed M.F.A.No.89 of 2003. In this case, the claimant was an injured pedestrian. Doctor certified 15% disability. He was aged 32 at the time of accident. Tribunal fixed only Rs.1,000/= as the monthly income. He was a farmer and maintaining a family. We fix Rs.1,500/= as the monthly income. So, compensation payable for 15% disability will be Rs.45,900/= (1500 x 12 x 15 x 17). No amount was awarded 100 MFA.1023/2002 & connection 8 for disability or loss of earning power by the Tribunal. The above amount, over and above the decreed amount by the Tribunal, should be deposited by the third respondent insurance company which insured the lorry with 7.5% interest from the date of application till its deposit. On deposit of the amount, the claimant is allowed to withdraw the same. 8. O.P.(M.V)No.645 of 1995 was filed by the legal representatives of a deceased passenger. Insurance company filed M.F.A.No.1087 of 2002 and claimants filed M.F.A.No.1328 of 2002. According to the claimants, the deceased was a businessman. They filed Exts.A18 to A32 before this court to show that he was doing different types of business. According to the claimants, his monthly income was Rs.5,000/=, but no data regarding the income was produced before the Tribunal. The accident occurred in 1995. The documents now produced show that he was conducting a ration shop and also he was a hill-produce dealer. Considering the circumstances, we fix Rs.3,000/= as his monthly income. After deducting one third for personal expenses, Rs.2,000/= is fixed as the monthly loss of dependency to the family. He was aged 35 at the time of accident. So, 16 is the apt multiplier. Therefore, the compensation payable for loss of dependency will be Rs.3,84,000/= (2000 x 12 x 16). Tribunal has granted Rs.17,600/- for pain and suffering, transport to MFA.1023/2002 & connection 9 hospital, loss of consortium, funeral expenses etc. So, total compensation payable will be 4,01,600/= out of which 75% should be deposited by the third respondent insurance company and 25% should be deposited by the fifth respondent insurance company. After deducting the amount already paid, balance amount shall be deposited by the insurance companies (their respective shares) with 7.5% interest from the date of application till its deposit. On deposit of the amount, the claimants are allowed to withdraw the same in the same proportion as directed by the Tribunal. 9. With regard to O.P.(M.V)No.33 of 1996 which was filed by a passenger in the vehicle, insurance company filed M.F.A.No.1109 of 2002 and claimant filed M.F.A.No.87 of 2003. He has sustained fracture of mandible and fracture of elbow. We are of the opinion that Rs.26,400/= awarded by the Tribunal needs no interference. Out of the awarded amount, 75% should be deposited by the third respondent insurance company and 25% by the fifth respondent insurance company. On deposit of the amount, claimant is allowed to withdraw the same. 10. O.P.(M.V)No.453 of 1995 was filed by the legal representatives of a deceased passenger in the jeep. Tribunal found that only three passengers died. Legal representatives of Joseph MFA.1023/2002 & connection 10 claimed compensation, and according to him this can be a duplicate claim. Therefore, the application was dismissed. The legal representatives filed M.F.A.No.88 of 2003. Ext.B1 charge-sheet shows that four persons died. Three passengers and jeep driver. Unfortunately Tribunal treated legal representatives of the driver who filed O.P.(M.V)No.648 of 1995 as a passenger. In fact, out of the three passengers, names of two were the same. It is true that same age was given by the police, but, postmortem certificates in respect of them were issued by two different doctors. Total four postmortem certificates were produced. Charge-sheet also shows that Joseph @ Kuttichettan and the deceased in O.P.(M.V)No.453 of 1995 Joseph, Anithottathil are different and Tribunal ought not have dismissed the application. Then the question is what is the compensation payable to the claimants in this case. The accident occurred in 1995. A remand of the matter to the Tribunal will be very harsh to the legal representatives. In the above circumstances, we are calculating the compensation. The deceased was aged 40 at the time of the accident. It is stated that he was an agriculturist. No evidence regarding the income was produced. Anyway, he was aged 40 and maintaining a family. We fix Rs.1,800/= as his monthly income. After deducting one third for personal expenses, we fix Rs.1,200/= as the monthly loss of dependency. Taking guidelines from the second schedule 15 is the apt multiplier. Thus, compensation payable for loss of dependency MFA.1023/2002 & connection 11 will be Rs.2,16,000/= (1,200 x 12 x 15). We award Rs.5,000/= for pain and suffering, Rs.5,000/= for loss of consortium, Rs.5,000/= for loss of love and affection and Rs.4,000/= for funeral expenses, transport to hospital etc. Thus, total compensation payable will be Rs.2,35,000/=, out of which 75% shall be deposited by the third respondent insurance company and 25% shall be deposited by the fifth respondent insurance company with 7.5% interest from the date of application till its deposit. It is submitted that an amount of Rs.50,000/= was already paid by the third respondent insurance company. The above can be deducted from the amount towards their share. On deposit of the amount, 50% of the amount is allowed to be withdrawn by the first claimant (first appellant in M.F.A.No.88 of 2003) and balance in equal proportion by the three children (appellants 2 to 4 in M.F.A.No.88 of 2003). All appeals are disposed of accordingly. J.B.KOSHY JUDGE K.HEMA JUDGE tks