IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 MACA.No. 601 of 2004 ---------------------- OPMV.1738/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANTS/RESPONDENT NOS 2 & 6. ---------------------------------------------- 1. AHAMED, S/O.UNNAIPPAN, PULIKKAL ANJOLI HOUSE, P.O. KONDOTTY, KOZHIKODE. 2. VENUGOPALA PILLAI, S/O.GOPALAPILLAI, KOUSTHUBAM VEETTIL, THEVALLY DESOM, KOLLAM WEST VILLAGE, KOLLAM TALUK. BY ADV. SRI.T.M.CHANDRAN RESPONDENT(S): PETITIONERS 1 TO 4 RESPONDENTS 1,2,3,4& 5. --------------------------------------------------------- 1. SURESH (DIED). 2. SAROJINI, W/O.SURESH, THOTTATHIL HOUSE, P.O.NELLAYI. 3. VINEETH, MINOR, S/O.SURESH, THOTTATHIL HOUSE, P.O.NELLAYI, REP. BY MOTHER 2ND RESPONDENT. 4. VISALAKSHY AMMA, M/O.SURESH, THOTTATHIL HOUSE, P.O.NELLAYI. 5. L.PARVATHY, W/O.LOGANATHAN, 2 V LANE, TONDIAPET, MADRAS, 600 081. 6. MOIDEENKUTTY, S/O.KUNJALAVI, EDATHODIVEETTIL, P.O. MULARIALLUR, NEERAD DESOM, KONDOTTY, KOZHIKODE. 7. THE NEW INDIA ASSURANCE CO.LTD., OPP.GOVT,MUSEUM, MADRAS 600 008. 8. M.KUNHCUMOHAMMED, S/O.MOHAMMEDKUTTY, MUTTANGADAN HOUSE, ANNAKKAYAM POST, MANCHERY. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R2TO4 SRI.T.C.SURESH MENON FOR R2TO4 SRI.LAL GEORGE FOR R7 SRI.K.VIDYASAGAR FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21/06/2011, ALONG WITH MACA NO. 735 OF 2004 & MACA NO. 907 OF 2004 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: I.A. No. 1550 OF 2004 IN M.A.C.A. No. 601 OF 2004 DISMISSED. Sd/-A.K.BASHEER, JUDGE. 21-6-2011. Sd/- P.Q. BARKATH ALI, JUDGE. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. Nos. 601, 735 & 907 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 21st day of June, 2011 JUDGMENT Barkath Ali, J. All these three appeals under section 173 of the Motor Vehicles Act arise out of the same judgment and award of the Motor Accidents Claims Triunal, Irinjalakuda in O.P. (MV) No.1738/1994 dated March 25, 2003. 2. Appellants in M.A.C.A. No.601/2004 are respondents 2 and 6 in the O.P. Appellants in M.A.C.A.No.735/2004 are claimants 2 to 4 in the O.P. who are the legal heirs of deceased first claimant. Appellant in M.A.C.A. No.907/2004 is the 4th respondent in the O.P. In all these appeals they challenge the judgment and award of the Tribunal awarding a compensation of ` 1,64,000/- for the loss caused to deceased first claimant on account of the injuries sustained by him in a motor accident. 3. The deceased first claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act M.A.C.A.No. 601/2004 & con. cases 2 claiming a compensation of ` 4,22,750/- for the loss caused to him on account of the injuries sustained by him in the accident. 4. The accident happened on July 20, 1994 at 4.30 p.m. at Kodakara. While the deceased first claimant was travelling in his auto-rickshaw bearing registration No.KL- 8/A 5720 along the National Highway 47, the auto-rickshaw collided head on with a car bearing registration No.KL-10/B 6875, driven by the third respondent in the O.P. Alleging negligence against the third respondent, the deceased first claimant filed the O.P. before the Tribunal. 5. The first respondent in the O.P. was the owner and second respondent in the O.P. was the person in possession of the offending car at the time of the accident. Third respondent in the O.P. was the driver of the car and fourth respondent in the O.P. was its insurer. Subsequently, respondents 5 and 6 in the O.P. were impleaded, alleging that the fifth respondent was the registered owner and sixth respondent was the person in possession of the car. During M.A.C.A.No. 601/2004 & con. cases 3 the pendency of the O.P. the first claimant died and his legal heirs are impleaded as petitioners 2 to 4 who are the appellants in M.A.C.A.No.735/2004. 6. The first respondent in the O.P., the registered owner of the car, filed a written statement contending that she has sold the vehicle to one P.S. Sundar on July 23, 1993 and that one Ahmed, the second respondent in the O.P. has become the owner of the car. The second respondent in the O.P. filed a written statement admitting his ownership. The third respondent in the O.P., the driver of the car, admitted the accident but denied the liability. The fourth respondent in the O.P., the alleged insurer of the offending car , filed a written statement, contending that the car was not covered under a valid insurance policy at the time of the accident, as the cheque issued by the first respondent in the O.P. towards the premium of the policy stands dishonoured and that therefore, the policy has become automatically cancelled and the said fact was informed to the first respondent who had acknowledged the same. M.A.C.A.No. 601/2004 & con. cases 4 7. The fifth respondent in the O.P. has filed a written statement admitting that he purchased the said car on June 30, 1995. The sixth respondent in the O.P. contended that he has no connection with the said car and he took possession of the car only from the police station. PWs.1 and 2 were examined and Exts.A1 to A18 and Ext.C1 were marked on the side of the claimants. RWs. 1 to 3 were examined on the side of the respondents in the O.P. Exts.X1 to X4 were also marked as Court Exhibits. On an appreciation of the evidence, the Tribunal found that the accident occurred due to the negligence of the third respondent in the O.P., the driver of the offending car, and awarded a compensation of ` 1,64,000/- with interest 9% per annum from the date of petition till realization. The Tribunal has also directed the fourth respondent in the O.P. the Insurance Company to satisfy the award and to recover the compensation amount from respondent 2, 3, and 6. Claimants 2 to 4 have filed M.A.C.A. No.735/2004 claiming enhancement of the compensation amount awarded. In M.A.C.A.No. 601/2004 & con. cases 5 M.A.C.A. No.601/2004 respondents 2 and 6 in the O.P. have challenged the finding of the Tribunal granting recovery right to the Insurance Company as the fourth respondent Insurance Company has cancelled the policy of the vehicle. In M.A.C.A. No.907/2004 the fourth respondent in the O.P. the Insurance Company challenges the finding of the Tribunal directing the appellant to satisfy the award. 8. Heard. 9. M.A.C.A. No.601/2005:- In this appeal respondents 2 and 6 in the O.P. challenged the finding of the Tribunal allowing the Insurance Company to recover the compensation amount awarded from them. According to the appellants, the sixth respondent in the O.P. has no connection with the car, as he only took the vehicle from the police station. There are no other documents to show that the sixth respondent in the O.P. had any right over the offending car. That apart, as the second respondent in the O.P. has stated that the sixth respondent has no connection with the said car, we feel that the award passed by the M.A.C.A.No. 601/2004 & con. cases 6 Tribunal can be modified to the effect that the fourth respondent in the O.P., the Insurance Company, is entitled to recover the compensation amount awarded from the second respondent in the O.P. 10. M.A.C.A. No.907/2004:- In this appeal by the fourth respondent in the O.P., the Insurance Company, it is contended that as the cheque issued towards premium of the policy of the offending car has been dishonoured and the Insurance Company has intimated the said fact to the first respondent in the O.P., the third respondent has absolutely no liability to indemnify the owner. We find no merit in the above contention. It is true that the cheque issued to the first respondent in the O.P. has been dishonoured, that the fourth respondent has cancelled the policy and intimated the same to the first respondent by Ext.B6 letter, which was received by the first respondent as evidenced by Ext.B7 postal acknowledgment. However, the fourth respondent in the O.P., the Insurance Company has not intimated the fact to the concerned authority regarding M.A.C.A.No. 601/2004 & con. cases 7 the cancellation of the policy, which is mandatory as per section 147(4) of the Motor Vehicles Act. Therefore, we find no illegality in the impugned award passed by the Tribunal directing the fourth respondent in the O.P., the Insurance Company, to satisfy the award and thereafter recover the same from the second and sixth respondents in the O.P. As we have found that sixth respondent in the O.P. has no connection with the offending vehicle, the Insurance Company can recover the amount from the second respondent in the O.P. 11. M.A.C.A.No.735/2004:- In this appeal the claimants 2 to 4 who are the legal heirs of deceased first claimant claimed enhancement of the compensation. The Tribunal awarded a total compensation of ` 1,64,000/-. Break up of the compensation awarded is this:- Loss of earning : ` 6,000 Transportation expenses : ` 4,000 Medical expenses : ` 50,000 Bystander's expenses : ` 2,000 Loss of earning power : ` 33,600 Pain and suffering : ` 25,000 Loss of amenities and : ` 25,000 enjoyment in life. M.A.C.A.No. 601/2004 & con. cases 8 Permanent disfiguration and : ` 18,400 disability. ------------------ Total : ` 1,64,000 ======= 12. The deceased first claimant sustained the following injuries in the accident:- 1) Compound fracture right tibia. 2) Brain stem injury. 3) Lacerated wound temporal and occipital region. 4) Multiple abrasions. The Tribunal awarded ` 25,000/- for loss of amenities and enjoyment in life and ` 25,000/- for pain and suffering endured. Taking into consideration the nature of the injuries sustained by the deceased first claimant and the fact that he was laid up for 8 years, we feel that an additional compensation of ` 10,000/- for loss of amenities and enjoyment in life and ` 10,000/- for pain and suffering endured by him would be reasonable. 13. The deceased first claimant died about eight years after the accident. The Tribunal took the monthly income of the deceased first claimant as ` 1,000/-, adopted multiplier M.A.C.A.No. 601/2004 & con. cases 9 of 8 and took the percentage of disability as 35% and awarded ` 33,600/- towards loss of earning power. Taking into consideration the fact that he was employed as an auto- rickshaw driver, his monthly income can reasonably be fixed at ` 1,750/-, which comes to ` 21,000/- per annum. The Tribunal adopted multiplier only as 8, which appears to be very low. In the circumstances of the case, we feel that multiplier of 10 would be reasonable in this case. The percentage of disability assessed by the Tribunal as 35% and as noted in Ext.A15 disability certificate issued by the West Fort Hospital, Thrissur appears to be reasonable. Therefore, for the disability caused and for loss of earning power, the claimants 2 to 4 are entitled to a compensation of ` 73,500/- ( ` 21,000/- x 10 x 35%). Thus the claimants 2 to 4 are entitled to an additional compensation of ` 39,900/- on this count. 14. 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 M.A.C.A.No. 601/2004 & con. cases 10 apportionment of the compensation amount and disbursement of the same, the direction of the Tribunal will stand. 15. In the result, claimants 2 to 4 are found entitled to an additional compensation of ` 59,900/- with interest @ 7.5% per annum from the date of petition till realization and proportionate costs. The fourth respondent in the O.P., the insurer of the offending car, shall deposit the amount and recover the same from the second respondent in the O.P. The award of the Tribunal is modified to the above extent. 16. In the result, M.A.C.A. No.601 and 735 of 2004 are disposed of as found above and M.A.C.A. No.907/2004 is dismissed. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn