IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 MFA.No. 381 of 2003() --------------------- OPMV.872/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANTS: PETITIONERS IN THE O.P(MV) NO.872/2000: -------------------------------------------------------------------------------------- 1. ABBAS, S/O. MUHAMMED KUTTY, 2. SAKKEENA, W/O. ABBAS, 3. SULAIKHA, W/O. LATE ANEES. 4. ARIFA (MINOR), AGED 11 YEARS, D/O. LATE ANEES. 5. RASHID AHAMMED (MINOR), AGED 6 YEARS, S/O. LATE ANEES, (MINOR APPELLANTS 4 & 5 REPRESENTED BY FATHER'S FATHER, GUARDIAN AND NEXT FRIEND, ABBAS, S/O.MUHAMMED KUTTY (1ST APPELLANT) (ALL ARE RESIDING AT KURUPPAMTHODY HOUSE (NOOR MAHAL), MELEPATTAMBI (P.O),OTTAPALAM TALUK,PALAKKAD DIST.) BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.SANTHEEP ANKARATH RESPONDENTS: RESPONDENTS IN O.P(MV) NO.872/2000: ------------------------------------------------------------------------------------- 1. CHENTHAMARAKSHAN, S/O. A.KRISHNAN, CHETTIYAMPADAM HOUSE, CHERAMANGALAM, MELARCODE, PALAKKAD DISTRICT, PIN-678 703. 2. THE MANAGING DIRECTOR, MAYIL VAHANAM MOTORS, SHORNUR, PALAKKAD DISTRICT, PIN-679 121. Kss ..2/- ...2..... M.F.A.NO.381/2003 3. THE UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, FAIZAL BUILDING, MAIN ROAD, OTTAPALAM, PIN-679 101. 4. V.V.RAJAGOPALAN, S/O.LATE PANKUNNI NAIR, VADAKARA VALIYA VEETTIL, POST KALLADIPATTA, OTTAPALAM TALUK, PALAKKAD DISTRICT. 5. K.SHAMSUDHEEN, S/O. KUNHUMOIDEEN, KELANTHODU HOUSE, POST KULUKKALLUR, OTTAPALAM TALUK. 6. THE NATIONAL INSURANCE COMPANY LIMITED, GURUVAYOOR BRANCH, GURUVAYOOR, THRISSUR DISTRICT. ADV.SRI.A.R.GEORGE FOR R3 SRI.MATHEWS JACOB (SR.) FOR R6 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2008 ALONG WITH MFA NO. 403 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- M.F.A.NOS.381 & 403 OF OF 2003 ---------------------------------------------------- Dated this the 18th day of June, 2008. JUDGMENT Koshy, J: Against the award of the Motor Accident Claims Tribunal, Ottapalam in O.P.(MV)No.872/2000, the appellants/claimants as well as the insurance company filed these appeals. According to the appellants in M.F.A.No.381/2003, the quantum of compensation awarded by the Tribunal is very low. A 30 years old youngster while traveling in an auto rickshaw sustained fatal injuries when the auto rickshaw collided with a bus. His wife, two minor children and parents claimed compensation. The Tribunal found that the accident occurred due to the negligence of the driver of the bus as well as the auto rickshaw. The deceased was working as the Managing Partner of Bismi Agencies. He was drawing Rs.4,000/= per month. Ext.A10 certificate shows that he was the Managing Partner of Bismi Agencies. The Manager was examined as PW2. He proved Ext.A10 certificate. Ext.A12 is the day book register maintained in the firm during the period 1999-2000. Ext.A14 is the wages slip counter foil kept in the firm. The Tribunal fixed Rs.3,000/= as his MF.A.NOS.381 &403/03 . 2 monthly income because the Hon'ble the Supreme Court in Latha Wadhwa & others v. State of Bihar & others (2001 (8) SCC 197) held that Rs.3,000/= can be fixed as monthly income for a house wife even without evidence. The deceased was well employed and he was maintaining a large family. We are of the view that when the monthly income was proved by valid documents, the Tribunal ought to have fixed Rs.4,000/= as his monthly income. From Rs.4,000/= one third has to be deducted and Rs.2,650/= should be the loss of dependency. At the time of the accident, the deceased was aged 30 years. The Tribunal has fixed 15 as the multiplier. At the time of the accident, the appellant was married and his wife was only 24 years old and two children were also born. Taking guidance from the 2nd schedule, 17 ought to have been taken as the multiplier in stead of 15 taken by the Tribunal. A three Bench decision of the Hon'ble the Supreme Court in Smt. Supe Dei & others v. National Insurance Co. Ltd. & another (JT 2002 Suppl.1 SC 451), Abati Bez Haruch v. Deputy Director General of Geological Survey of India & another (JT 2003 (5) SC 205) and APSRTC v. V.M. Pentaiah Chary (AIR 2007 SCW 5689), it is clearly held that 2nd schedule should be adopted for fixing the multiplier even in applications filed under Section 166 except in special MF.A.NOS.381 &403/03 . 3 circumstances. If that be so, compensation for loss of disability will be 2650 x12x17=Rs.5,40,600/= in stead of 3,60,000/=. The additional amount payable will be Rs.1,80,600/=. So, the total compensation payable will be Rs.5,80,100/= rounded to Rs.5,80,000/=. Therefore, the appeal filed by the claimants are partly allowed. Then the question is who will deposit the amount. The Tribunal has found that both the driver of the auto rickshaw as well as the bus were negligent. The third respondent insurance company filed the appeal contending that entire liability should not have been cast on it after finding that drivers of the bus and auto rickshaw are equally negligent. The Apex Court in Bijoy Kumar Dugar v. Vidhyadhar Dutta & others (AIR 2006 SC 1255) held that both the drivers can be presumed equally negligible where there is head of collision in a highway and therefore compensation ought to have been divided between both sides. Therefore liability of the appellant insurance company in M.F.A.No.403/2003 will be Rs.2,90,000/= with interest and proportionate costs as awarded by the Tribunal after deducting the amount already deposited. They should deposit the balance amount within two months from the date of receipt of a copy of this MF.A.NOS.381 &403/03 . 4 judgment. With regard to the balance liability, if there is no insurance coverage, driver and owner of the auto rickshaw i.e., respondents 4 and 5 in the original petition are jointly and severally liable. Then the question is whether they are entitled to indemnify by the sixth respondent insurance company. The sixth respondent insurance company filed a written statement stating that they did not issued any policy. But, no evidence was adduced regarding that. Respondents 4 and 5 did not enter appearance before the Tribunal even though they accepted notice. It is also contended that the 5th respondent auto rickshaw driver had no driving licence at the time of the accident. The defence taken by the insurance company should be proved by the owner of auto rickshaw and he has the duty to prove the policy particulars. The insurance company also should prove the policy if they had issued the policy. Therefore, whether the insurance company is liable to pay Rs.2,90,000/= (50% of the total compensation) with interest and costs or respondents 4 and 5 should be directed to deposit the above amount, has to be decided by the Tribunal. The matter is remanded back to the tribunal and the parties are directed to appear before the Tribunal on 18.9.2008 to decide that question. If 4th and 5th respondents enter appearance, they should be MF.A.NOS.381 &403/03 . 5 allowed to adduce evidence after setting aside the ex parte order. The only question to be considered is whether there was insurance coverage to the auto rickshaw at the time of the accident and if there is any insurance coverage, the amount will have to be deposited by the insurance company. If there is no insurance coverage for the auto rickshaw, respondents 4 and 5 will jointly and severally liable for Rs.2,90,000/= with interest and proportionate costs awarded by the Tribunal. If auto rickshaw was covered by valid policy and there was violation of the policy condition, the sixth respondent should deposit the same and if there is any violation of the policy conditions, it could be recovered from the insured. The respondents are also free to adduce evidence to the question whether auto rickshaw driver has valid license at the time of the accident. On deposit of the compensation amount, it can be disbursed at the proportion as fixed by the Tribunal. J.B. KOSHY, JUDGE. P.N. RAVINDRAN, JUDGE. cl MF.A.NOS.381 &403/03 . 6 J.B. KOSHY & P.N. RAVINDRAN, JJ. M.F.A.NOS.381 & 403 OF OF 2003 MF.A.NOS.381 &403/03 . 7 JUDGMENT 18th day of June, 2008.