IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 1ST APRIL 2011 / 11TH CHAITHRA 1933 MACA.No. 2318 of 2008() ------------------------------ OPMV.501/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT(S): PETITIONERS NO.2 TO 10 ------------------------------------------------- 1. VELLACHI, W/O. PULAYAN, ODAYOTH COLONY, KONDOTHUMMEL, PACHILAKKAD.P.O., VARADOOR (VIA) WAYANAD DISTRICT. 2. BALAN S/O. PULAYAN, -DO- -DO- 3. LEELA, D/O. PULAYAN -DO- -DO- 4. SIVASANKARAN, S/O. PULAYAN. -DO- -DO- 5. AMINI D/O. PULAYAN -DO- -DO- 6. SANTHA D/O. PULAYAN -DO- -DO- 7. MANI S/O.PULAYAN -DO- -DO- 8. SUSEELA, D/O.PULAYAN -DO- -DO- 9. UNNI, S/O. PULAYAN, -DO- -DO- BY ADV. SMT.CELINE JOSEPH svs ................2/-... ...2... MACA. NO.2618/2008 RESPONDENT(S): RESPONDENT NO, 3 & 6 ------------------------------------------------- 1. UNITED INDIA INSURANCE CO.LTD., 305, ATCHAMA MANSIONS, SOUTHEN EXTENDION, KOLLAIGAL-571440 KARNATAKA STATE. 2. NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, P.B.NO.434, ST.JOSEPH'S PRESS BUILDINGS, VAZHUTHAKAD, THIRUVANANTHAPURAM. R1 BY ADV. P.V.JYOTHI PRASAD R2 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01/04/2011, ALONG WITH MACA NO. 3019 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. Nos. 2318 & 3019 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 1st day of April, 2011 JUDGMENT Barkath Ali, J. Both these appeals arise out of the same judgment and award of the Motor Accidents Claims Tribunal, Kalpetta, Wayanad in O.P.(MV) No.501/2001 dated November 22, 2006. M.A.C.A.No.2318/2008 is filed by the claimants 2 to 10 in the O.P. while M.A.C.A.No.3019/2008 is filed by the sixth respondent in the O.P. – Insurance Company. 2. Claimants in the O.P. are parents, brothers and sisters of deceased Rugmini who died in a motor accident that occurred on July 28, 2001 at about 1 am. near Nedukatta Check Post on Bangalore – Mysore road in Mandya district. While deceased Rugmani was travelling in a K.S.R.T.C. bus bearing registration No.KL-153799 from Bangalore to Kalpetta, it collided head on with a lorry bearing registration No.KL-10/4555. She sustained serious injuries and she succumbed to the injuries sustained on the MACA 2318/2008 & con. case 2 same day while undergoing treatment in the hospital. Alleging negligence against the drivers of both the vehicles, the claimants filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.7 lakhs. 3. Respondents 1 to 3 in the O.P. are the driver, owner and insurer of the lorry and respondents 4 to 6 are the driver, owner and insurer of the K.S.R.T.C. bus involved in the accident. Respondents 1 and 2 in the O.P., the driver and the owner of the lorry, remained absent before the Tribunal. The third respondent in the O.P., the insurer of the lorry, filed a written statement admitting the policy of the lorry. Respondents 4 and 5 in the O.P., the owner and driver of the K.S.R.T.C. bus filed a joint written statement admitting the accident but attributed negligence to the driver of the lorry. The sixth respondent in the O.P., insurer of the K.S.R.T.C. bus, filed a written statement admitting the policy of the bus. 4. PW1 was examined and Exts.A1 to A6 were marked MACA 2318/2008 & con. case 3 on the side of the claimants. No evidence was adduced by the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to the negligence of the drivers of both the vehicles and awarded a compensation of Rs.1,15,000/- with interest @ 6% per annum from the date of petition till realization against respondents 1 to 6. The entire compensation was ordered to be paid to the claimants 1 and 2. The claimants 2 to 10 have filed M.A.C.A.No.2318/2008 claiming enhancement of the compensation as first claimant died. The six respondent in the O.P., insurer of the K.S.R.T.C. bus has filed M.A.C.A. No.3019/2008 challenging the finding of the Tribunal regarding negligence of both the drivers, as in connected cases (O.P.(MV) Nos.479 and 480 of 2001) the Tribunal found that the accident occurred due to negligence of the first respondent in the O.P., the driver of the lorry. 5. Heard the counsel for the claimants and the counsel for the Insurance Company. 6. The following points arise for consideration:- MACA 2318/2008 & con. case 4 1) Whether the finding of the Tribunal that the accident occurred due to negligence of drivers of both the vehicles can be sustained? 2) Whether the claimants are entitled to any enhanced compensation? 7. Point No.1:- It is the admitted case that in O.P.(MV) Nos.479 and 480 of 2001, which arose out of the very same accident, the Tribunal found that the first respondent in the O.P., the driver of the lorry, alone was responsible for the accident and passed an award against respondent 1 to 3 therein. The third respondent in the O.P., the insurer of the lorry, has not filed any appeal against the said finding. Therefore, the findings in those Original Petitions are biding on the third respondent Insurance Company. That being so, the Tribunal went wrong in finding that the accident occurred due to negligence of both the drivers. Therefore, we set aside the said finding and hold that the accident occurred due to negligence of the first respondent in the O.P., the driver of the lorry. That being so, the third respondent in the O.P., the insurer of the lorry, is liable to MACA 2318/2008 & con. case 5 pay the entire compensation awarded by the Tribunal. It follows that M.A.C.A.No.3019/2008 filed by the sixth respondent in the O.P., the Insurance Company, has to be allowed. 8. Point No.2:- The next question for consideration is whether the claimants are entitled to any enhanced compensation. The Tribunal awarded a total compensation of Rs.1,15,000/-. Break up of the compensation awarded is as under:- Loss of dependency : Rs. 84,000 Transport to hospital : Rs. 1,000 Funeral expenses : Rs. 3,000 Loss of love and affection : Rs. 20,000 Pain and suffering : Rs. 7,000 ------------------ Total : Rs.1,15,000 ======= 9. The counsel for the claimants sought enhancement of the compensation for loss of dependency and on other heads. 10. The Tribunal took the monthly income of the deceased as Rs.2,100/- and after deducting 1/3rd for her MACA 2318/2008 & con. case 6 personal expenses, balance amount of Rs.16,800/- was taken as her annual contribution to her family. As the claimants 1 and 2 were aged 71 and 66 years respectively, multiplier of 5 was taken by the Tribunal and awarded a compensation of Rs,84,000/- towards loss of dependency. According to the claimants, the deceased was a coolie aged 20 earning Rs.3,000/- per month. As the deceased was aged only 20, we feel that her monthly income can reasonably be fixed at Rs.3,000/-. As the deceased was unmarried and was residing with the parents who were very aged, we feel that 1/4th of her income need be deducted for her personal expenses. Therefore, balance amount of Rs.27,000/- per annum can be taken as her annual contribution to her family. Multiplier of 5 adopted by the Tribunal is not seriously challenged. Thus, calculated for the loss of dependency, the claimants are entitled to a compensation of Rs.1,35,000/-. Thus, the claimants are entitled an additional compensation of Rs.51,000/- on this count. 11. The Tribunal awarded Rs.20,000/- for the loss of MACA 2318/2008 & con. case 7 love and affection, which appears to be very low. In the circumstances of the case, we feel that a compensation of Rs.30,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore,we are not disturbing the same. Regarding the apportionment of the compensation amount and disbursement of the same, the direction of the Tribunal will stand. 12. In the result, the claimants are found entitled to an additional compensation of Rs.61,000/-. The Tribunal awarded interest @ 6% per annum, which appears to be very low. The claimants are entitled to interest @ 7.5% per annum from the date of petition till realization for the compensation already awarded by the Tribunal and also for the enhanced compensation. They are entitled to proportionate costs. As we have found that the third respondent is liable to pay the compensation, the entire compensation including the enhanced compensation amount shall be paid by the third respondent in the O.P. , MACA 2318/2008 & con. case 8 the insurer of the lorry. The third respondent in the O.P. shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimants. 13. In the result, M.A.C.A. No.3019/2008 is allowed and M.A.C.A No.2318/2008 is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn