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 9TH JULY 2010 / 18TH ASHADHA 1932 MACA.No. 500 of 2008() ---------------------- OPMV.1113/2003 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/2ND RESPONDENT -------------------------------------- THE NEW INDIA ASSURANCE CO.LTD., REGIONAL TOWERS, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM, REPRESENTED BY ITS MANAGER. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): IST RESPONDENT & PETITIONERS ------------------------------------------- 1. BINU ABRAHAM, PAREKUNNUMPURATHU HOUSE, OLASSA P.O., KOTTAYAM. 2. BABU JACOB, ARACKAL THOPPIL HOUSE, POOVANTHURUTHU P.O., PANACHIKADU VILLAGE, KOTTAYAM. (DELETED) 3. MINI BABU, ARACKAL THOPPIL HOUSE, POOVANTHURUTHU PO., PANACHIKADU VILLAGE, KOTTAYAM. 4. JIKKY BABU (MINOR), D/O.BABU JACOB, ARACKAL THOPPIL HOUSE, POOVANTHURUTHU P.O. PANACHIKADU VILLAGE, KOTTAYAM. 5. KUNJUNJAMMA CHACKO, MOTHER OF BABU JACOB, ARACKAL THOPPIL HOUSE, POOVANTHURUTHU P.O., PANACHIKADU VILLAGE, KOTTAYAM. ( Name of the second respondent is deleted from the party array at the risk of the appellant as per order dated 10-11-2009 in I.A.No.3025/2009) ADV. SRI.RAJESH CHAKYAT FOR R3TO5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.500 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of July, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the third respondent -Insurance Company in O.P.(MV)No.1113/2003 of Motor Accidents Claims Tribunal, Kottayam challenges the judgment and award of the Tribunal dated July 31, 2007 awarding a compensation of Rs. 6,57,104/- for the loss caused to claimants 2 to 4 on account of the death of deceased first claimant in a motor accident. 2. The facts leading to this appeal in brief are these : On May 16, 2002 Deceased first claimant Babu Jacob was pillion riding on a motor cycle bearing Reg.No.KL 5J 2355 ridden by the first respondent from Olassa to Poovanthuruthu. When they reached at Kodimatha, first respondent suddenly applied the break as a result of which the claimant was thrown on the road and sustained grievous injuries. Due to the injury sustained, deceased first claimant died on November 22, 2004. Claimants 2 to 4 are his wife, minor son and mother. According to the claimants, the accident occurred due to MACA.No.500/2008 2 the negligence on the part of the first respondent. First respondent as the rider, second respondent as the owner and third respondent as the insurer of the offending motor cycle are jointly and severally liable to pay compensation to the claimants 2 to 4, who are the dependants and legal heirs of deceased first claimant. Claimants claimed a compensation of Rs. 8 lakhs. 3. Respondents 1 and 2, the rider and the owner of the offending motor cycle remained absent and were set ex parte by the Tribunal. The third respondent, the insurer of the offending motor cycle filed a written statement admitting the policy and further contended that as the deceased first claimant was pillion ridding on the motor cycle, his risk was not covered by the insurance policy. 4. PW 1 was examined and Exts.A1 to A22 were marked on the side of the claimants before the Tribunal. Copy of the policy was marked as Ext.B1 by the third respondent. The Tribunal on an appreciation of evidence awarded a compensation of Rs.6,57,104/- with interest @ 7% per annum from the date of petition till realisation and proportionate cost. The Tribunal rejected the contention of the MACA.No.500/2008 3 second respondent that Ext.B1 policy does not cover the risk of the pillion rider and directed the second respondent to satisfy the award. The third respondent has now come up in appeal challenging the said finding of the Tribunal. 5. Heard the counsel for the appellant/Insurance Company and the counsel for the claimants. 6. The following points arise for consideration : 1) Whether the finding of the Tribunal that the risk of the pillion rider was also covered by the policy Ext.B1 and directing the third respondent Insurance Company to satisfy the award can be sustained ? 2) Whether the compensation awarded by the Tribunal is excessive. 7. Counsel for the appellant/Insurance company has fairly conceded that Ext.B1 is a package policy and that the risk of the pillion rider is also covered by the said policy. Therefore, we confirm the finding of the Tribunal that the risk of the deceased first claimant, who was pillion riding on the motor cycle, is also covered by Ext.B1 policy and directing the third respondent to satisfy the award. MACA.No.500/2008 4 Point No.2 8. The next question to be considered is whether the compensation awarded is excessive. 9. The Tribunal awarded a total compensation of Rs.6,57,104/-. The break up of the compensation awarded is as under : Loss of dependency - Rs. 4,25,104/- Loss of estate - Rs. 50,000/- Loss of expectation - Rs. 25,000/- Transport to hospital - Rs. 2,000/- Treatment expenses - Rs. 45,000/- Extra nourishment - Rs. 5,000/- Pain and suffering - Rs. 50,000/- Loss of consortium - Rs. 25,000/- Loss of love and affection - Rs. 30,000/- 10. The Tribunal took the monthly income of the deceased first claimant as Rs. 3,281/- as the deceased first claimant was a driver in KSRTC and was getting a monthly salary of Rs. 4500/-. Ext.A20 is his salary certificate. After deducting 1/3 for his personal expenses, the balance amount of Rs. 2186/- was taken as his monthly contribution to his family which comes to Rs. 26,232/- per annum. As he was aged 39, a multiplier of 16 was adopted by the Tribunal and awarded MACA.No.500/2008 5 Rs. 4,25,104/- for the loss of dependency. 11. We have gone through the records and the award of the Tribunal. Taking into consideration the fact that deceased first claimant was employed as a driver and was aged only 39 at the time of the accident, we are of the view that the compensation awarded by the Tribunal is just and reasonable and not excessive. In the result, the appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.500/2008 6