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 22ND MARCH 2010 / 1ST CHAITHRA 1932 MACA.No. 1829 of 2007() ----------------------------------- OPMV.3345/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANTS/PETITIONERS IN O.P.(MV): ---------------------------------------------------------- 1. KUPPATHAI, AGD 41 YEARS, W/O.SELVARAJ. K, SELUKKAN NYAKKAN VEEDU, NEELANKALE VALASU, PERIYAR ERODE DISTRICT, TAMILNADU, NOW RESIDING AT CHELAKKOTTUKARA DESOM, CHIYYARAM VILLAGE, THRISSUR. 2. KALAISELVI, AGED 21 YEARS, D/O.SELVARAJ, -DO- 3. MINOR MANIKANDAN, AGED 16 YEARS, S/O.SELVARAJ, -DO- REP.BY GUARDIAN/MOTHER, KUPPATHAI, W/O.SELVARAJ. 4. KARUPPANA GOUDER, S/O.SEERANGA SWAMI, SELUKKAN NYAKKAN VEEDU, NEELANKALE VALASU, PERIYAR ERODE DISTRICT,TAMILNADU. 5. NACHAMMAL, W/O.KARUPPA GOUDER, SELUKKAN NYAKKAN VEEDU, NEELANKALE VALASU, PERIYAR ERODE DISTRICT, TAMILNNADU. BY ADV. SMT.LATHA PRABHAKARAN,] SRI.JAMALUDHEEN K.M. RESPONDENTS/RESPONDENTS IN OP(MV): -------------------------------------------------------------- 1. JAISON. K.A, S/O ANTONY, KODIYAN HOUSE, VETTUKAD, TRISSUR. 2. NIXON, S/O.ANTONY, KODIYAN HOUSE, VETTUKAD DESOM, KAINOOR VILLAGE, THRISSUR. 3. ORIENTAL INSURANCE CO.LTD, DIVISIONAL OFFICE, MAHESWARI BUILDING, M.G.ROAD,TRISSUR. R3 BY ADV. SRI.V.P.K. PANICKER. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 1829 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 22nd day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P.(MV)No.3345/2001 of Motor Accidents Claims Tribunal, Thrissur challenge the judgment and award of the Tribunal dated June 20, 2006 awarding a compensation of Rs. 3,28,000/- with interest @ 7% per annum from the date of petition till realization for the loss caused to them on account of the death of Selvaraj in a motor accident. 2. The facts leading to this appeal in brief are these :- Deceased Selvaraj was aged 38 at the time of the accident and used to earn Rs. 5,000/- per month from conducting business, according to the claimants. On September 21, 2001 at about 5.45 a.m., the deceased was riding his motor cycle bearing Reg.No.KL 8/B 5680 along Kanjany-Thrissur public road. When he reached near Eravu MACA 1829/2007 2 Kolpadavu, a lorry bearing Reg.No.KL 3/3843 driven by the second respondent in a rash and negligent manner came from the opposite side and dashed against the motor cycle of the deceased Selvaraj. Deceased Selvaraj sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital. According to the claimants, accident occurred due to the rash and negligent driving of the offending lorry by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimants. Claimants claimed a compensation of Rs. 7 lakhs. 3. Respondent No.2, the driver of the offending lorry remained absent and was set ex parte by the Tribunal. Respondents 1 and 3, the owner and insurer of the offending lorry filed separate written statements. First respondent in his written statement admitted the accident, but contended that the second respondent is not his MACA 1829/2007 3 employee. He would contend that the accident occurred due to the negligence on the part of the deceased Selvaraj. The third respondent in the written statement admitted the policy, but contended that second respondent, the driver of the lorry, was not holding a valid driving licence at the time of the accident and that therefore, third respondent is absolved from indemnifying the first respondent. 4. PW1 was examined and Exts.A1 to A19 were marked on the side of the claimants before the Tribunal. On the side of the third respondent, Insurance Company, RW1 was examined and Exts.B1 to B3 were marked. 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. 3,28,000/-. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellants/claimants and the counsel for the Insurance Company. MACA 1829/2007 4 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the second respondent, the driver of the offending lorry, is not challenged in this appeal. The Tribunal also found that third respondent is entitled to recover the compensation awarded from the first respondent, the owner of the offending vehicle, as the second respondent was not holding a valid driving licence at the time of the accident, which is also not challenged by the claimants. Therefore, the only question which arises for consideration is whether the claimants are entitled to any enhanced compensation ? 7. The Tribunal awarded a total compensation of Rs. 3,28,000/-. The break up of the compensation awarded is as under : Expenses for transportation -Rs. 1,000/- Damages to clothing -Rs. 1,000/- Expenses for funeral -Rs. 5,000/- Pain and suffering -Rs. 15,000/- Loss of dependency -Rs . 2,56,000/- Loss of consortium - Rs. 25,000/- Loss of love and affection -Rs. 25,000/- MACA 1829/2007 5 --------------------- Total - Rs.3,28,000/- ======== 8. Counsel for the claimants mainly sought enhancement of the compensation for the loss of dependency. Deceased was aged 38 at the time of the accident. Though claimants have claimed that deceased used to earn Rs. 5,000/- per month from his business, no document was produced to prove the same. Therefore, the Tribunal took his monthly income as Rs. 2,000/- and after deducting 1/3 for his personal expenses, remaining Rs. 16,000/- per annum was taken as his contribution to the claimants and adopted a multiplier of 16 and awarded Rs. 2,56,000/- for the loss of dependency. Taking into consideration the age of the deceased and the fact that no document was produced to prove the same, we feel that the compensation amount awarded by the tribunal for the loss of dependency is just and proper. That being so, the claimants are not entitled to any enhancement of compensation on this count. Regarding the compensation MACA 1829/2007 6 awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 9. There is another aspect in this case. Claimants claimed Rs. 25,000/- for the damage caused to the motor cycle on the ground that motor cycle belonged to the deceased. The Tribunal refused the claim of the claimants on the ground that in Ext.A7, the copy of the RC book, the registered owner is shown as P.V. Abdulwahab. But before this court, the claimants produced copy of the RC book, which shows that the vehicle has been transferred in the name of the deceased with effect from 15/02/2000. Therefore, the claimants as his legal heirs are entitled to compensation for the damage caused to the motor cycle. Ext.A8 survey report shows that the damage caused to the motor cycle comes to Rs. 10,000/- which is not seriously challenged. That being so, the claimants are entitled to Rs. 10,000/- towards damage caused to the motor cycle. 10. In the result, the claimants are entitled to an additional compensation of Rs. 10,000/-. They are entitled MACA 1829/2007 7 to interest @ 9% per annum from the date of petition till realization for the enhanced compensation and proportionate cost. 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 and recover the same from the first respondent, the owner of the offending vehicle. 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. mn.