IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 MACA.No. 696 of 2003() ---------------------- OPMV.516/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER -------------- 1. K.NARAYANI, W/O LATE C.K.GOPALAN 65 YEARS, SHAJI BHAVAN, (P.O.)KANHILERI MATTANNUR (VIA), KANNUR DISTRICT (DIED) ADDITIONAL APPELLANTS 2. SANTHA.K., D/O LATE K.NARAYANI, DYNA VILLA (P.O.), URUVACHALIL, ( VIA) MATTANNOOR, KANNUR DISTRICT, PIN- 670 702. 3. SUMATHI K., D/O LATE K.NARAYANI, “SURABHI” KARETTA P.O., NEERVELI, KANNUR DISTRICT 4. NANDANAN.K., S/O LATE K.NARAYANI, CALM HILLS KANHILERI P.O., (VIA) MATTANNUR, KANNUR DISTRICT , PIN - 670 702 5. MITHRAN K., S/O LATE K.NARAYANI, SHAJI BHAVAN P.O. KANHILERI, (VIA) MATTANNUR, KANNUR DISTRICT PIN - 670 702. 6. DR.K.RAJINI, D/O LATE K.NARAYANI, SHAJI BHAVAN ( P.O.), KANHILERI, (VIA) MATTANNUR, KANNUR DISTRICT PIN 670 702 BY ADV. SRI.SARVOTHAMAN RESPONDENTS/RESPONDENTS --------------- 1. T.OOMMEN PANICKER, S/O THOMAS PANICKER TOPS MANOR, P.O. PANAVELI VETTIKKAVALA, KOTTARAKKARA 2. REJI.R., S/O RAJU, THEKKEPARAMBIL HOUSE AMBEDKER COLONY, LOWER CAMP MACA.NO.696/2003 PERIYAR PROJECT, UTHAMAPALAYAM CAMP THENI DISTRICT, TAMIL NADU NOW RESIDING AT TOP CONSTRUCTION QUARTERS SIVAPURAM AMSOM, DESOM ( P.O.) SIVAPURAM KANNUR DISTRICT 3. V.CHANDRASEKHARAN, S/O VEERAPPA GOUNDER PAKANATHAM, ( VIA) ERIYOD, DINDIKKAL ANNA DISTRICT, VATASATHUR, TAMIL NADU NOW RESIDING AT TOP CONSTRUCTION QUARTERS SIVAPURAM AMSOM, DESOM , P.O. SIVAPURAM KANNUR DISTRICT 4. THE NATIONAL INSURANCE COMPANY LTD. KANNUR ADDITIONAL RESPONDENTS 5. THE DIRECTOR OF VIGILANCE, THIRUVANANTHAPURAM 6. K.SURENDRAN, S/O LATE K.NARAYANI, WHITE HOUSE, KARETTA, P.O. NEERVELI, KANNUR DISTRICT ADDITIONAL APPELLANTS 2 TO 6 AND ADDL. 6TH RESPONDENT IMPLEADED AS THE LEGAL HEIRS OF DECEASED SOLE APPELLANT AS PER ORDER DATED 4-1-2011 IN I.A.NO.3439/2010 ADDITIONAL 5TH IMPLEADED AS PER ORDER DATED 25/3/2010 IN MACA. ADV. SRI.A.MOHAMED MUSTAQUE FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.696 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2011 JUDGMENT Barkath Ali, J. Deceased first appellant is the claimant in O.P.(MV) No.516/1998 on the file of Motor Accidents Claims Tribunal, Thalassery. In this appeal she challenges the judgment and award of the Tribunal dated January 9, 2003 awarding a compensation of Rs.84,500/- for the loss caused to her on account of the death of her son Shaji in a motor accident. During the pendency of appeal, she died. Her legal heirs are impleaded as supplemental appellants 2 to 6 and 6th respondent in the appeal. 2. The accident happened on April 1, 1997 at about 10 a.m. While the deceased Shaji was standing by the side of the road at Vellilode, he was knocked down by the tipper lorry bearing Reg.No.KL-4/A 7166 driven by the second respondent. He sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital. Alleging negligence against the MACA.No.696/2003 2 second respondent, the deceased claimant/first appellant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 8,00,000/-. 3. Respondent No. 1 the owner of the offending lorry though entered appearance did not file any written statement before the Tribunal. Respondent No.3 claimed that he was the driver of the offending vehicle. Respondent No.2 is the actual driver of the offending vehicle. Respondent No.4 is the insurer of the offending vehicle. Respondents 2 and 3 remained absent before the Tribunal. The fourth respondent, the insurer of the offending lorry filed a written statement admitting the policy, but denied the liability. 4. This O.P. was jointly tried along with the O.Ps. filed by the other injured persons and a common award was passed by the Tribunal. Pws 1 and 2 were examined and Exts.A1 to A18 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked by the contesting fourth respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending lorry by second respondent and awarded a compensation of Rs. 84,500/- with interest @ 9% per MACA.No.696/2003 3 annum from the date of petition till realisation and proportionate cost against the owner and the driver of the offending vehicle. The Tribunal exonerated the fourth respondent Insurance Company from the liability finding that the vehicle was not covered by a valid insurance policy. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal exonerating the fourth respondent Insurance Company. 5. Heard the counsel for the appellants and the counsel for the Insurance Company. 6. The accident is not disputed. The following points arise for consideration : 1. Whether the finding of the Tribunal exonerating the fourth respondent Insurance Company can be sustained ? 2. Whether the appellants are entitled to any enhanced compensation. Point No.1 7. The Tribunal exonerated the fourth respondent Insurance Company on the ground that the claimant has failed to prove that the offending vehicle was covered by a valid insurance policy at the time of the accident. MACA.No.696/2003 4 8. When this appeal came up of hearing, learned counsel for the Insurance Company fairly conceded that the offending vehicle was covered by a valid insurance policy at the time of the accident. The first respondent, the owner of the offending vehicle produced the copy of the policy of the offending vehicle. That being so, the fourth respondent Insurance Company is bound to indemnify the owner of the offending vehicle, the first respondent. Point No.2 9. The next question for consideration is whether the appellants are entitled to any enhanced compensation. 10. The Tribunal awarded a total compensation of Rs.84,500/-. The break up of the compensation amount awarded is as under: Loss of dependency - Rs.60,000/- Transportation - Rs. 1,500/- Pain and suffering - Rs. 10,000/- Loss of love and affection - Rs. 10,000/- Funeral expenses - Rs. 3,000/- 11. Counsel for the appellants sought enhancement of compensation for loss of dependency and for loss of love and affection. 12. The Tribunal took the monthly income of the deceased as MACA.No.696/2003 5 Rs.1,500/- which works out to Rs. 18,000/- per annum. After deducting 1/3 for his personal expenses, the balance amount of Rs. 12,000/- was taken as his annual contribution to his family. The Tribunal adopted a multiplier of 5 and awarded Rs.60,000/- for the loss of dependency. According to the appellants, the deceased was an Advocate-Trainee and also a contractor earning Rs.4,000/- per month. Exts.A7 and A9 is the certificates to that effect. Taking into consideration the above aspect, we feel that the monthly income of the deceased can be reasonably fixed at Rs. 3,000/- which comes to Rs. 36,000/- per annum. After deducting 1/3 for his personal expenses, the balance amount of Rs. 24,000/- can be taken as his annual contribution to his family. The Tribunal adopted a multiplier of 5 which is not seriously challenged. Thus calculated for the loss of dependency, the claimants are entitled to a compensation of Rs. 1,20,000/- ( 24,000 x 5). Thus on this count, the claimants are entitled to an additional compensation of Rs.60,000/-. 13. For loss of love and affection, Rs. 10,000/- was awarded by the Tribunal which appears to be quite inadequate. In the circumstances of the case, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. Thus, on this count, the claimants MACA.No.696/2003 6 are entitled to an additional compensation of Rs.5,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 14. In the result, the appellants are found entitled to an additional compensation of Rs. 65,000/-. They are entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The fourth respondent being the insurer of the offending vehicle shall deposit the compensation awarded by the Tribunal as well as the enhanced compensation with interest and cost 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.696/2003 7 MACA.No.696/2003 8 MACA.No.696/2003 9