IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 MACA.No. 2259 of 2009() ------------------------------------ OPMV.1724/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANTS/PETITIONERS: ------------------------------------------ 1. RADHAMANI, W/O.NARAYANAN, AGED 51 YEARS, RESIDING AT PORUNNIKAL HOUSE, PERINGAZHA KARA, MARADI VILLAGE, MUVATTUPUZHA TALUK. 2. SONA, D/O.NARAYANAN, AGED 20 YEARS, -DO-, - DO-. 3. NAYANA (MINOR), AGED 17 YEARS, REPRESENTED BY MOTHER AND LEGAL GUARDIAN RADHAMANI, W/O.NARAYANAN, AGED 51 YEARS, -DO-, -DO-. (DECLARED AS MAJOR AS PER ORDER DATED 7.11.08 IN IA. 3786/2008). BY ADV. SRI.SAIBY JOSE KIDANGOOR, SRI.O.V.ANISH. RESPONDENTS/RESPONDENTS: ------------------------------------------------ 1. MR.BABY K.U., KOLLAMAKUDI HOUSE, KUNNAKAL KARA, VALAKOM P.O. 2. M/S.NATIONAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, KOLENCHERY. R1 BY ADV. SRI.M.V.PAULOSE. R2 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA). THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No.2259 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 6th day of December, 2010 JUDGMENT Barkath Ali, J. Appellants are the claimants in O.P.(MV)No.1724/2005 on the file of Motor Accidents Claims Tribunal, Muvattupuzha. They are the widow and children of deceased Narayanan who died in a motor accident. In this appeal they challenge the judgment and award of the Tribunal dated November 19, 2008 awarding a compensation of Rs.2,47,600/- for the loss caused to them on account the death of Narayanan. 2. The accident happened on August 23,2005 while deceased Narayanan was riding a scooter bearing Reg.No.KL- 7J-8310. When he reached at Kandamattom a motor cycle bearing Reg.No.KL-17A-2980 came at a high speed and knocked him down. Narayanan sustained serious injuries and he succumbed to the injuries sustained while MACA 2259/2009 2 undergoing treatment in the hospital. Alleging negligence against the first respondent, the driver of the offending vehicle bearing Reg.No.KL-17A-2980, the claimants filed the O.P. before the Tribunal claiming a compensation of Rs.5 lakhs. 3. The first respondent, the owner cum rider of the offending motor cycle, filed a written statement admitting the accident, but attributed negligence to the deceased. The second respondent, the insurer of the offending vehicle, filed a written statement admitting the policy but contended that the 1st respondent was not having a valid driving licence at the time of the accident. 4. This O.P. was jointly tried along with O.P. filed by the pillion rider of the scooter and a common award was passed. 5. PW1 was examined and Exts.A10 to A14 were marked on the side of the claimants before the Tribunal. Ext.B1 was marked on the side of the respondents. On an appreciation of evidence, the Tribunal found that the MACA 2259/2009 3 accident occurred due to the negligence of the first respondent, driver of the offending vehicle, and assessed a compensation of Rs.2,91,210/- with interest @ 10 % per annum from the date of petition till realization. The Tribunal also found that there was contributory negligence to the extent of 15% of the deceased and reduced the compensation amount to Rs.2,47,600/-. The Tribunal exonerated the Insurance Company on the ground that the 1st respondent has no effective and valid driving licence at the time of the accident. The claimants have now come up in appeal challenging the above finding of the Tribunal and also claiming enhanced compensation. 6. Heard learned counsel for the claimant and learned counsel for the Insurance Company. 7. The following points arise for consideration:- 1) Whether the finding of the Tribunal that there was contributory negligence to the extent of 15% on the part of the deceased can be sustained ? 2) Whether the order of the Tribunal exonerating the Insurance Company from paying the compensation amount is MACA 2259/2009 4 sustainable ? 3) Whether the claimants are entitled to any enhanced compensation? 8. There is a mistake in the compensation assessed by the Tribunal. The total compensation assessed comes to Rs.3,29,777/- but it was mistakenly show as Rs.2,91,210/-. Therefore, the award is corrected to that effect. 9. The accident was not disputed. It is also not disputed that the deceased died as a result of the injuries sustained in the accident. The Tribunal found that there was 15% negligence on the part of the deceased. The Tribunal has observed that the deceased should have been more careful in avoiding the accident. The reasoning of the Tribunal appears to be perverse. In this case the scooter of the deceased was hit from behind by the offending vehicle. No contra evidence was adduced by the respondents. That apart PW1 wife of the deceased who was pillion riding on the motor cycle testified in a convincing manner regarding the negligence of the offending vehicle. Therefore finding of the Tribunal that there was contributory negligence to the MACA 2259/2009 5 extent of 15% on the part of the deceased cannot be sustained. We hold that the accident occurred solely due to the negligence of the 1st respondent. That being so, the claimants are entitled to the entire compensation assessed by the Tribunal Rs.3,29,777/-. 10. The next question for consideration is whether the finding of the Tribunal exonerating the Insurance Company can be sustained. The 1st respondent has produced his driving licence before the Tribunal. It was issued from Chennai Office. The 2nd respondent Insurance Company contended that it is a fake licence. On the request of the 2nd respondent, the Tribunal directed the 1st respondent to furnish his Chennai address, but he did not produce any document to prove the same. Therefore, the Tribunal came to the conclusion that the 1st respondent had no valid and effective driving licence at the time of the accident and exonerated the Insurance Company. The 1st respondent has not challenged the said finding in this appeal. Therefore, the finding of the Tribunal that the 1st respondent had no MACA 2259/2009 6 valid and effective driving licence at the time of the accident has to be confirmed. 11. The Tribunal exonerated the Insurance Company from payment of compensation. In the interest of justice we feel that the Insurance Company should be directed to pay the compensation amount awarded to the claimants and they may be given the right to recover the same from the 1st respondent. Therefore, we hold that the Insurance Company shall satisfy the award and recover the same from the 1st respondent. 12. The next question for consideration is whether the claimants are entitled for enhanced compensation. The Tribunal assessed a total compensation of Rs.3,29,777/-, which is mistakenly shown as Rs.2,91,210/-. Break up of the compensation assessed is as under:- Loss of dependency : Rs.2,24,160 Transportation : Rs. 2,000 Funeral expenses : Rs. 5,000 Extra nourishment : Rs. 750 Bystander's expenses : Rs. 1,800 Loss of estate : Rs. 2,500 Treatment expenses : Rs. 38,567 Pain and suffering : Rs. 10,000 MACA 2259/2009 7 Loss of consortium : Rs. 15,000 Loss of love and affection : Rs. 30,000 ------------------- Total : Rs.3,29,777 ======== 13. The learned counsel for the claimant sought enhancement of the compensation for the loss of dependency, loss of love and affection and on other heads. 14. The Tribunal took the monthly income of the deceased as Rs.3,500/- and after deducting 1/3rd for his personal expenses, Rs.2,335/- per month was taken as his monthly contribution to the family and adopted a multiplier of 8 and awarded Rs.2,24,160/- for the loss of dependency. The deceased was aged 56 at the time of the accident. He was a retired school teacher, as revealed from Ext.A4 copy of the pension payment order. PW1 testified that he also used to take tuition for the students. Taking into consideration the above aspect, we feel that monthly income of the claimant can reasonably be estimated at Rs.4,000/- per month. After deducting 1/3rd for his personal expenses Rs.32,000/- per annum can be taken as his annual MACA 2259/2009 8 contribution to the family. Multiplier adopted by the Tribunal is not seriously challenged. Thus, calculated for the loss of dependency, the claimant is entitled to a compensation of Rs.2,56,000/- (Rs.32,000/- x 8). Thus, on this count the claimant is entitled to an additional compensation of Rs.31,840/-. 15. The Tribunal awarded Rs.15,000/- each to claimants 2 and 3 towards loss of love and affection. Taking into consideration the age of the claimants, we feel that a compensation of Rs.25,000/- each to the claimants would be reasonable on this count i.e., Rs.75,000/-. Therefore, on this count the claimants are entitled to an additional compensation of Rs.45,000/-. 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, the direction of the Tribunal will stand. 16. The finding of the Tribunal that the deceased has attributed negligence to the extent of 15% is set aside and it MACA 2259/2009 9 is found that the accident occurred due to negligence of the 1st respondent. Consequently, the claimants are entitled to the entire compensation assessed by the Tribunal Rs.3,29,777/-. They are found entitled to an additional compensation of Rs.76,840/- with interest at the rate of 7.5 % per annum from the date of petition till realization. The 2nd respondent Insurance Company shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The 2nd respondent is permitted to recover the amount from the 1st respondent. The award of the Tribunal is modified to the above extent. In the result, the appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE mn.