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 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 MACA.No. 342 of 2009() ---------------------- OPMV.2159/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANTS/PETITIONERS 1, 2,6,8 AND 10 : -------------- 1. KUNCHAYYAPPAN, 78 YEARS, S/O.KORAN, KOODATHINGAL HOUSE AYYANTHOL.P.O., TRICHUR-3 (FATHER OF DECEASED SIVARAMAN). 2. AYYAKUTTY, 70 YEARS, W/O.KUNCHAYYAPPAN, KOODATHINGAL HOUSE AYYANTHOL , TRICHUR-3 (MOTHER OF DECEASED SIVARAMAN). 3. SARADA, D/O.KUNCHAYYAPPAN, 46 YEARS, KOODATHINGAL HOUSE, AYYANTHOL PO., TRICHUR-3, (UNM ARRIED SISTER OF DECEASED SIVARAMAN) 4. LEELA, D/O.KUNCHAYAPPAN, 40 YEARS, KOODATHINGAL HOUSE, AYYANTHOL PO., TRICHUR-3, (UNMARRIED SISTER OF DECEASED SIVARAMAN) 5. MANI, D/O.KUNCHAYYAPPAN, AGED 25 YEARS KOODATHINGAL HOUSE, AYYANTHOL PO., TRICHUR-3 (UNMARRIED SISTER OF THE DECEASED). BY ADV. SRI.THOMAS ABRAHAM SRI.A.SAMPATH SRI.DIPU.R SMT.MERCIAMMA MATHEW SRI.K.S.HARIDAS SRI.V.RENJITH KUMAR RESPONDENTS/RESPONDENTS 1 TO 3 AND PETITIONERS 3, 4, 5,7 & 9: -------------------------------------------------------------------------------------------- 1. C.S.RAMAKRISHNAN, S/O.SANKARAN EZUTHASSAN, CHAKKU PARAMBIL HOUSE, PO.AVANOOR, TRICHUR. MACA.NO.342/2009 2. JOHNY, S/O.AHTONY, CHALISSERY HOUSE, KKIZHAKKUPURAM, MANAKKODY PO., TRICHUR. 3. NATIONAL INSURANCE CO.LTD., AMBIKA ARCADE, M.G.ROAD, TRICHUR. 4. CHANDRAN, S/O.KUNCHAYYAPPAN, 52 YEARS KOODATHINGAL HOUSE, AYYANTHOLE, TRICHUR-3 (BROTHER OF THE DECEASED). 5. KOCHAMMU @ THANKA, D/O.KUNCHAYYAPPAN, 51 YEARS, KOODATHINGAL HOUSE, AYYANTHOL PO.,TRICHUR-3,(SISTER OF THE DECEASED) 6. SANTHA, D/O.KUNCHAYYAPPAN, 49 YEARS, KODATHINGAL HOUSE, AYYANTHOL PO., TRICHUR-3, (SISTER OF THE DECECEASED) 7. RAJAN, S/O.KUNCHAYYAPPAN, 45 YEARS KOODATHINGAL HOUSE, AYYANTHOL PO, TRICHUR-3 (BROTHER OF THE DECEASED) 8. RAMAKRISHNAN, S/O.KUNCHAYYAPPAN 39 YEARS KOODATHINGAL HOUSE, AYYANTHOL PO., TRICHUR-3 BROTHER OF THE CECEASED) ADV. SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.342 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of December, 2010 JUDGMENT Barkath Ali, J. Appellants are claimants 1, 2, 6 and 8 to 10 in O.P.(MV) No.2159/2003 on the file of Motor Accidents Claims Tribunal, Thrissur. Claimants are the parents, brothers and sisters of deceased Sivaraman who died in a motor accident. In this appeal, they challenge the judgment and award of the Tribunal awarding a compensation of Rs.1,21,650/- for the loss caused to them on account of the death of deceased in that accident. 2. The accident happened on May 15, 2003 at about 12 noon near Out post, Kanjani near Thrissur. Deceased was pillion riding on the motor cycle. At that time, the lorry bearing Reg.No.KL 8/D 552 driven by second respondent dashed against the motor cycle. Deceased sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital on May 20, 2003. Alleging negligence against the second respondent, the driver of the lorry, the MACA.No.342/2009 2 claimants filed the O.P. before the Tribunal claiming a compensation of Rs. 5,00,000/-. 3. Respondents 1 and 2, the owner and the driver of the offending lorry did not file any written statement before the Tribunal. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy, but attributed negligence to the rider of the motor cycle. Exts.A1 to A7 were marked on the side of the claimants. On the side of the respondents, Exts.B1 and B2 were marked. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the second respondent and assessed a compensation of Rs. 1,62,200/-, but found that there was 25% contributory negligence on the part of the rider of the motor cycle and awarded only a compensation of Rs. 1,21,650/- with interest @ 7% per annum from the date of petition till realisation and proportionate cost. Claimants 1,2,6, 8 and 10 have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the appellants/claimants and the counsel for the Insurance company. MACA.No.342/2009 3 5. The following points arise for consideration : 1. Whether the finding of the Tribunal that there was 25% contributory negligence on the part of the rider of the motor cycle and consequently reducing the compensation can be sustained ? 2. Whether the claimants are entitled to any enhanced compensation ? Point No.1 6. The Tribunal found that there was contributory negligence to the extent of 25% on the side of the rider of the motor cycle on the ground that the motor cycle was proceeding from west to east and that the accident took place on the southern half of the road which is the wrong side of the motor cycle. The finding of the Tribunal appears to be not correct. In Ext.A5 police charge, it is seen that the motor cycle was proceeding from east to west. That being so, the motor cycle was on its right side and the lorry was on its wrong side. It follows that no contributory negligence can be attributed to the rider of the motor cycle. That apart, the deceased was only a pillion rider of the motor cycle. Therefore, he cannot be penalised for the alleged negligence of the rider of the motor cycle. For all these reasons, the finding of the MACA.No.342/2009 4 Tribunal that there was 25% contributory negligence on the part of the rider of the motor cycle cannot be sustained and we hold that the accident occurred solely due to the negligence of the driver of the lorry, the second respondent. That being so, the claimants are entitled to the entire compensation assessed by the Tribunal i.e. Rs. 1,62,200/-. 7. The next question for consideration is whether the claimants are entitled to any enhanced compensation. The Tribunal took the monthly income of the deceased as Rs. 2,000/- and deducted 1/3 for his personal expenses and took the balance amount of Rs. 16,000/- per annum as his annual contribution to his family. Taking into consideration the age of the parents, the Tribunal adopted a multiplier of 15 and awarded Rs. 80,000/- for loss of dependency. The deceased was aged only 32 at the time of the accident. According to the claimants, the deceased was a newspaper agent and earning more than Rs. 5,000/- per month. Taking into consideration the above aspect, we feel that his monthly income can be reasonably fixed at Rs. 3,500/- which comes to Rs.42,000/- per annum. After deducting 1/3 for his personal expenses, the balance amount of Rs.28,000/ can be MACA.No.342/2009 5 taken as his annual contribution to his family. 8. Counsel for the appellants argued that claimants 6, 8 and 10, the sisters of the deceased are still unmarried and produced certificates of the village officer to that effect. They were aged 46, 40 and 25 at the time of the accident. That being so, they have also to be considered as the dependents of the deceased. Taking into consideration that aspect, we feel that a multiplier of 6 would be reasonable in this case. Thus calculated for the loss of dependency, the claimants are entitled to a compensation of Rs. 1,68,000/- ( 28000 x 6) . Thus on this count, the claimants are entitled to an additional compensation of Rs. 88,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 9. Thus the claimants are entitled to the entire compensation assessed by the Tribunal i.e. Rs. 1,62,200/-. They are also found entitled to an additional compensation of Rs. 88,000/-. The Tribunal awarded interest @ 7% per annum which appears to be very low. They are entitled to interest @ 7.5% per annum for the compensation already MACA.No.342/2009 6 awarded and also for the enhanced compensation from the date of petition till reasliation and proportionate cost. The entire enhanced compensation shall be disbursed to claimants 6, 8 and 10, the unmarried sisters of the deceased in equal shares as the Tribunal did not award any compensation to them. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. The appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.342/2009 7