IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 MACA.No. 699 of 2006() ---------------------- OPMV.98/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S): APPELLANTS/PETITIONERS: ---------------------------------------------------------------- 1. RAJENDRAN PILLAI, JAYA NIVAS, PUNTHALATHAZHAM, VADAKKEVILA, KOLLAM. 2. THULASIAMMA, W/O. RAJENDRAN PILLAI, JAYA NIVAS, PUNTHALATHAZHAM, VADAKKEVILA, KOLLAM. 3. JAYAN, S/O. RAJENDRAN PILLAI, JAYA NIVAS, PUNTHALATHAZHAM, VADAKKEVILA, KOLLAM. BY ADV. SRI.ANCHAL C.VIJAYAN RESPONDENT(S): ---------------------- 1. MANAGING DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM. 2. SUDEVAN, S/O. LEKSHMANAN, SUMATHI MANDIRAM, KANNIMMEL CHERRY, NEAR S.V. TALKIES, KILIKOLLOOR, KOLLAM. ADV. SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC FOR R1 SRI.K.PRABHAKARAN, SC, K.S.R.T.C. FOR R1 SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. --------------------------------------------------------- M.A.C.A No. 699 OF 2006 ---------------------------------------- DATED THIS THE 13TH DAY OF SEPTEMBER, 2010 JUDGMENT ----------------- Barkath Ali, J. The appellants are the claimants in OP(MV) No. 98/99 on the file of the Motor Accidents Claims Tribunal, Kollam who are the parents and sister of deceased Jayalekshmi, who died in a motor accident that occurred on September 11,1998. 2. The accident happened while the deceased was pillion riding on the motor cycle bearing registration No.KL-2G/1806 along Kallada-Kundara road which was ridden by 3rd petitioner, her brother. When they reached at Chittumala Junction, a K.S.R.T.C bus bearing registration No. KL-15/1005 driven by the 2nd respondent came at a high speed and hit against the right handle of the motor cycle as a result of which the deceased fell under the bus which ran over her and she died on the spot. The claimants filed O.P before the Motor Accidents Claims Tribunal, Kollam claiming a compensation of Rs. 6 lakhs. M.A.C.A No. 699 OF 2006 2 3. The first respondent, the Managing Director of K.S.R.T.C filed a written statement admitting the accident, but denied the liability. The 2nd respondent, the driver of the bus remained absent before the Tribunal. PWs 1 to 5 were examined and Exts. A1 to A10 were marked on the side of the claimants. The 2nd respondent was examined as RW1 before the Tribunal on the side of the respondents. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the driver of the bus and the rider of the motor cycle at the ratio of 30:70 and assessed a compensation of Rs.1,72,000/- and awarded Rs.51,600/- as compensation with interest at the rate of 9% per annum from the date of petition till realization and proportionate cost. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal that the rider of the motor cycle was negligent to the extent of 70%. 4. Heard the counsel for the appellants and the Standing Counsel for the K.S.R.T.C. M.A.C.A No. 699 OF 2006 3 5. In this appeal, the following points arise for consideration: (i) whether the finding of the Tribunal that the accident occurred due to the negligence of the driver of the K.S.R.T.C bus and that of the rider of the motor cycle at the ratio of 30:70 can be sustained? (ii) whether the claimants are entitled to any enhanced compensation? 6. The specific case of the claimants before the Tribunal was that the back side of the K.S.R.T.C bus hit against the right side handle of the motor cycle, as a result of which, the deceased fell under the bus which ran over her. To prove the above aspect PWs 1 to 5 were examined on the side of the claimants. The Tribunal did not believe their evidence. The driver of the K.S.R.T.C bus was also examined as RW1. On an appreciation of evidence the Tribunal found that the driver of the K.S.R.T.C bus was negligent to the extent of 30% and the rider of the motor cycle 70%. 7. We have gone through the evidence adduced by the parties and perused the documents. If the driver of the K.S.R.T.C bus was more careful he could have averted the accident as observed by the Tribunal. Therefore, we are of the view that the driver of the K.S.R.T.C bus was negligent to the extent of 75% and the driver of the motor cycle 25%. That being so, the respondents are liable to M.A.C.A No. 699 OF 2006 4 pay 75% of the compensation amount assessed by the Tribunal which comes to Rs.1,29,000/-. 8. The next question for consideration is whether the claimants are entitled to any enhanced compensation? The Tribunal awarded a total compensation of Rs.51,600/-. The break up of the compensation awarded is as under: Loss of dependency : Rs. 84,504/- (till the proposed marriage at the age of 27) Loss of dependency after : Rs. 67,200 marriage. Loss of love and affection : Rs. 5,000 Funeral expenses : Rs. 5,000 Pain and suffering : Rs. 5,000 ---------------- Total : Rs.1,71,704 Rounded to : Rs.1,72,000 The deceased was unmarried and was working as Postal Assistant earning to Rs.5,282/- as salary as evidenced by Ext.A6 salary certificate issued by the Postmaster, PW4. PW5, the Public Relations Inspector of Head Post Office at Kollam was also examined to prove the occupation and salary of the deceased. The Tribunal took the monthly income of the deceased as shown in Ext.A6 and after deducting 1/3 of her personal expenses, took M.A.C.A No. 699 OF 2006 5 Rs.3,521/- as her monthly contribution to her family. As she was aged 25 at the time of accident, the Tribunal assessed Rs.84,504/- for loss of dependency till her date of proposed marriage at the age of 27(Rs.3521x12x2). Thereafter, the Tribunal took Rs.800/- as her monthly contribution to her family after the proposed age of marriage and adopted a multiplier of 7 and assessed Rs.67,200/- towards loss of dependency after her marriage(Rs.800x12x5). 9. Taking into consideration the fact that she was working as Postal Assistant and earning more than Rs.5,000/- per month and she was aged only 25 at the time of her death and taking into account future prospects in her life, we feel that her monthly income can be reasonably fixed at Rs.5,000/- per month which comes to Rs.60,000/- per annum. After deducting 1/3 for her personal expenses, the balance amount of Rs. 40,000/- can be taken as her annual contribution to her family. The parents were aged 57 and 46 at the time of accident. Therefore a multiplier of 11 would be reasonable in this case. Thus calculated for the loss of dependency, the claimants are entitled to a compensation of Rs.4,40,000/- (Rs.40,000x11). Thus, on this count, the additional compensation the M.A.C.A No. 699 OF 2006 6 claimants are entitled to is assessed as Rs.2,88,296/- (Rs.4,40,000- Rs.84,504 + Rs.67,200). 10. The Tribunal assessed a compensation of Rs. 10,000/- for loss of love and affection which appears to be very low. Taking into consideration the age of the deceased and the age of the claimants, we feel that a compensation of Rs. 20,000/- would be reasonable on this count. 11. The Tribunal assessed a compensation of Rs. 5,000/- for pain and suffering endured by the claimants. In the circumstances of the case, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. 12. No compensation was seen awarded for the loss of estate. Taking into consideration of the age of the deceased, we feel that a compensation of Rs.5,000/- would be reasonable for loss of estate. 13. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 14. Thus, the total additional compensation is assessed as Rs. 3,13,296/-. The claimants are entitled to 75% of the same as we M.A.C.A No. 699 OF 2006 7 have found that there was 75% negligence on the part of the driver of K.S.R.T.C which comes to Rs. 2,34,972/-. 15. In the result, the claimants are entitled to an additional compensation of Rs.2,34,972/-. They are entitled to interest at the rate of 9% per annum from the date of petition till realization and proportionate cost. The first respondent, being the owner 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 PKK