IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 MACA.No. 1032 of 2011() ----------------------- OPMV.1037/2002 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA .................... APPELLANT(S): PETITIONERS ------------------------- 1. CHELLAMMAL, AGED 67 YEARS, D/O.THANKAMMA, PONNU VEETTIL, KAYAMKULAM MURI, WARD 26, KAYAMKULAM, NOW RESIDING AT NARAYANEEYAM, KRISHNAPURAM, KARTHIKAPPALLY. 2. MADHU, AGED 47 YEARS, S/O.MANIYAN ACHARY, PONNU VEETTIL, KAYAMKULAM MURI, WARD 26, KAYAMKULAM, NOW RESIDING AT NARAYANEEYAM, KRISHNAPURAM, KARTHIKAPPALLY. 3. RADHAKRISHNAN, AGED 41 YEARS, S/O.MANIYAN ACHARY, PONNU VEETTIL, KAYAMKULAM MURI, WARD 26, KAYAMKULAM, NOW RESIDING AT NARAYANEEYAM, KRISHNAPURAM, KARTHIKAPPALLY. 4. MAHESWARY, PONNU VEETTIL, KAYAMKULAM MURI, WARD 26, KAYAMKULAM, NOW RESIDING AT NARAYANEEYAM, KRISHNAPURAM, KARTHIKAPPALLY. BY ADV. SRI.R.PADMAKUMAR SRI.P.ARAVIND RESPONDENT(S): --------------- 1. BADARUDEEN @ BABU, ALEYIL KIZHAKKATHIL, KANNAMPALLIBHAGOM MURI, WARD 1, KEERIKKADU. 690 508 2. RUGMINI, THANNIVILAYIL, KARUVATTA P.O., ADOOR. 690 517 3. THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO. LTD., KOCHI. 682 016 ADV. SRI.R.RAJASEKHARAN PILLAI FOR R1 SMT.SABINA JAYAN FOR R1 SRI.K.V.ANIL KUMAR FOR R2 SRI.KKM.SHERIF FOR R3 SRI.LAL K.JOSEPH FOR R3 SRI.A.A.ZIYAD RAHMAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ -------------------------------------------- M.A.C.A. NO. 1032 OF 2011 ------------------------------------ Dated this the 9th day of November, 2011. JUDGMENT Basant, J. Claimants are the appellants. They are the mother aged 62 years and siblings of the deceased, a young man aged 23 years on the date of the accident, i.e., on 25.04.2002. He succumbed to the injury suffered in that accident. Against a total claim of limited to Rs.6 lakhs, tribunal awarded an amount of Rs.1.5 lakhs as compensation as per the details given in paragraph 9 of the impugned award which we extract below. Sl. No. Head of claim Amount claimed (in rupees) Amount awarded (in rupees) 1 Transportation and ambulance expenses 3500 3500 2 Damage to clothing 500 500 3 Pain and sufferings 20000 10000 4 Loss of dependency 6,00,000 1,26,000 5 Funeral expenses 5000 4000 6 Loss of estate, etc. 75000 5000 7 Extra nourishment 2000 500 8 Bystander's expenses 1000 500 9 Total 7,17,000/- (limited to Rs.6,00,000/-) 1,50,000/- 2 MACA No. 1032/2011 2. We have heard the learned counsel for the appellants and the learned counsel for the 3rd respondent insurance company. The 3rd respondent insurer has been directed to satisfy the award with the right to claim and return the amount from the second respondent/owner. Learned counsel for the appellants assails the impugned award on two grounds. 3. First of all, it is contended that the quantum of compensation awarded is low. It cannot be said to be just compensation for the loss suffered. Secondly, learned counsel for the appellants contends that the direction given in favour of the insurance company to recover the amount from second respondent/owner is not legally sustainable in view of the dictum in New India Assurance Co. Ltd. Vs. Balakrishnan and others [2011(4) KHC 203]. 4. The learned counsel for the appellants contends that even accepting the finding of the tribunal that the monthly earnings of the deceased was Rs.3,000/- per mensem the amount Rs.1.5 lakhs awarded as compensation warrants interference because the amount awarded is perversely low. At any rate the amount awarded should not have been lesser than the amount 3 MACA No. 1032/2011 payable under Section 163 A of the Motor Vehicles Act. 5. In the light of this contention raised by the learned counsel for the appellants, we have attempted to ascertain the quantum of compensation that would be payable under Section 163 A accepting the findings rendered by the tribunal. In that event the deceased would fall under horizontal entry No. 3 can relating to persons above 20 years but not exceeding 25 years. He would fall under vertical entry No. 12 relating to persons earning income above Rs.24,000/- upto Rs.36,000/-. At the point where relevant horizontal column and vertical column meet Rs.6,48,000/- is prescribed as the compensation payable for fatal accident. Taking note of the mandate under clause 1 of the second schedule 1/3 of the amount has to be deducted towards the personal expenses of the deceased. In addition to the amount of compensation payable under clause 1 compensation for funeral expenses and loss of estate as prescribed under clause 3 will also be payable. 6. In short, if the claim were reckoned as are under Section 163 A of the Motor Vehicles Act an amount of Rs. Rs.4,36,500/- (Rupees Four lakhs thirty six thousand and five 4 MACA No. 1032/2011 hundred only) will be payable as shown below. 1. Compensation for fatal accident as per the table Rs.4,32,000/- under clause 1 of the second schedule (6,48,000/- x 2/3) 2. Funeral expenses u/s 3 (i) Rs.2,000/- 3. Loss of estate under clause 3(iii) Rs.2,500/- ------------------- Total Rs.4,36,500/- ========= 7. We are satisfied in these facts and circumstances of this case that at least the amount payable under Section 163 A can safely be fixed as the quantum of compensation payable to the claimants. The challenge of this ground can succeed to the above accident. A total amount of Rs. 2,86,500/- (Rupees Two lakhs eighty six thousand and five hundred only) (Rs. 4,36,500 minus 1,50,000) will hence be payable in addition to the amount of Rs.1,50,000/- awarded by the tribunal. 8. Eventhough the second respondent has not challenged the direction under the proviso to Section 149 (4) of Motor Vehicles Act, we are satisfied that the dictum in New India Assurance Company Vs. Balakrishnan (supra) applies and the 5 MACA No. 1032/2011 direction issued under the proviso to Section 149 (4) deserves to be set aside. 9. The learned counsel argues and we agree that the appellants are entitled to proportionate costs on the entire amount of compensation for the proceedings before the tribunal as held in Jeena Vs. Satheesh Babu K. [2011 (3) KLT 943]. 10. In the result a) This appeal is allowed in part. b) The direction issued in favour of the 3rd respondent under the proviso of Section 149 (4) entitling the 3rd respondent to recover the compensation amount from the second respondent after payment to the claimants is hereby set aside. c) The appellants are found entitled to a further amount of Rs. 2,86,500/- (Rupees Two lakhs eighty six thousand and five hundred only) in addition to the amount already awarded by the tribunal. d) We make it clear that the entire amount of compensation shall carry interest at the rate 6 MACA No. 1032/2011 and for the period as directed by the tribunal in the impugned award. e) We direct that proportionate costs be paid on the entire amount of compensation to the proceedings before the tribunal are held in Jeena (surpa). f) All other directions of the tribunal are upheld. R. BASANT JUDGE V. CHITAMBARESH JUDGE dnc