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 6TH AUGUST 2010 / 15TH SRAVANA 1932 MACA.No. 986 of 2004() ---------------------- OPMV.2113/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): APPELLANTS/PETITIONERS: ------------------------------------- 1. SNEHALATHA, D/O. SARASAMMA, KAMPIVALAPPILNINUM VELLAMTHENGIL, KAKKAZHAM, AMBALAPPUZHA. 2. SANTHEEP, KAMPIVALAPPILNINUM VELLAMTHENGIL, KAKKAAZHAM, AMBALAPPUZHA. 3. SOUMIA, AGED 17 YEARS, KAMPIVALAPPILNINUM VELLAMTHENGIL, KAKKAZHAM, AMBALAPPUZHA, MINOR, REPRESENTED BY MOTHER AND GUARDIAN SNEHALATHA. 4. SARATH, AGED 15 YEARS, KAMPIVALAPPILNINUM VELLAMTHENGIL, KAKKAZHAM, AMBALAPPUZHA, MINOR, REPRESENTED BY MOTHER AND GUARDIAN SNEHALATHA. 5. JANARDHANAN, KAMPIVALAPPILNINUM VELLAMTHENGIL, KAKKAZHAM, AMBALAPPUZHA. 6. SAROJINI, W/O. JANARDHANAN, KAMPIVALAPPILNINUM VELLAMTHENGIL, KAKKAZHAM, AMBALAPPUZHA. BY ADV. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY RESPONDENT(S): --------------- 1. BASHEER, VRIKSHAVILASOM THOPPU, VANDANAM, ALAPPUZHA. MACA.NO.986/2004 2. THIRU M. LEKSHMONA PILLAI, S/O. MUTHU IRALAPPA PILLAI, 25, KANAKASABHAPATHI PILLAI STREET, TUTICORIN, TAMILNADU. 3. XAVIER, S/O. ANTONY, BALAMURUKA BUS CO.LTD., TUTICORIN, TAMILNADU. 4. THE ORIENTAL INSURANCE COMPANY LTD., BRANCH OFFICE, ALAPPUZHA. ADV. SRI.P.VIJAYA BHANU FOR R1 SRI.M.GEORGE THOMAS FOR R1 SRI.VPK.PANICKER FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.986 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of August, 2010 JUDGMENT Barkath Ali, J. Appellants are the claimants in O.P.(MV)No.2113/1997 on the file of Motor Accidents Claims Tribunal, Alappuzha. They are the wife, children and the parents of one Sathyan, who died in a motor accident that occurred on December 26, 1995 at about 8 p.m. on the Tuticorin-Thirunalveli-Palayamkottai road. The accident happened while the deceased was travelling in a mini lorry bearing Reg.No.KEK 5358 along with the owner of the goods Gopi and three others, it collided head on with the bus bearing Reg.No.TN 69/9559 driven by the second respondent. 2. Alleging negligence against the second respondent, the driver of the bus and the driver of the lorry, the claimants filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 3,50,000/-. 3. Respondents 2, 3 and 4 are the driver, owner and insurer of MACA.No.986/2004 2 the bus. First respondent is the owner of the mini lorry which is also insured with the fourth respondent. Only the fourth respondent Insurance Company contested the matter. They filed a written statement admitting the policy. 4. This O.P. was jointly tried along with other O.Ps. filed by the legal heirs of other persons died in the accident and also other injured persons and a common award was passed. Pws 1 to 5 were examined and Exts.A1 to A35 were marked on the side of the claimants in all the O.Ps. RW1 was examined and Ext.B1 was marked on the side of the contesting fourth respondent Insurance Company. On an appreciation of evidence, the Tribunal awarded a total compensation of Rs.2,83,400/- with interest @ 6% per annum from the date of petition till realisation and a cost of Rs. 2750/-. The Tribunal exonerated the fourth respondent Insurance Company on the ground that the policy does not cover the risk of the deceased who is an employee of the owner of the goods and passed an award only against the first respondent, the owner of the lorry finding that the accident occurred due to the negligence on part of the driver of the lorry and that there MACA.No.986/2004 3 was no negligence on the part of the driver of the bus. The claimants have now come up in appeal challenging the above finding of the Tribunal exonerating the Insurance Company. 5. Heard the counsel for the appellants/claimants and the counsel for the Insurance Company. 6. The Apex Court had held in New India Assurance Co.Ltd. V. Asha Rani & others ( AIR 2003 Supreme Court 607) that the insurer is expected to cover only the risk of the owner of the goods carried in the vehicle and not the employees. In the present case admittedly the deceased is an employee of the owner of the goods Gopi. Therefore, the Tribunal is perfectly justified in holding that the policy of the lorry does not cover the risk of the deceased and that therefore fourth respondent Insurance Company is not liable to pay compensation to the claimants. 7. As regards the adequacy of compensation, the Tribunal awarded a total compensation of Rs. 2,83,400/-. The break up of the compensation awarded is as under : Loss of dependency - Rs. 2,30,400/- Loss of consortium - Rs. 15,000/- MACA.No.986/2004 4 Loss of love and affection - Rs. 15,000/- Loss of estate - Rs. 10,000/- Pain and suffering - Rs. 5,000/- Transportation - Rs. 5,000/- Funeral expenses - Rs. 3,000/- 8. Deceased Sathyan was aged 35 at the time of the accident and was an Akbari employee earning Rs.3,000/- per month, according to the claimants. The Tribunal took the annual income of the deceased as Rs. 21,000/- and after deducting 1/3 towards his personal expenses, took the balance amount of Rs. 14,400/- as his annual contribution to the family and adopted a multiplier and awarded Rs. 2,30,400/- for the loss of dependency. In our view, the compensation awarded by the Tribunal is just and reasonable. That being so, we find no merit in this appeal and the same has to be dismissed. In the result, the appeal is dismissed. No cost. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.986/2004 5 MACA.No.986/2004 6