IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 MACA.No. 676 of 2006 ------------------------------------ OPMV.2946/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT/APPELLANT/2ND RESPONDENT: THE ORIENTAL INSURANCE CO. LTD., PALAKKAD, REP. ITS ADMINISTRATIVE OFFICER REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) SRI.ALEXY AUGUSTINE RESPONDENTS/CLAIMANTS 1 TO 3/RESPONDENTS 1 & 3 TO 6: 1. YASODA, W/O. LATE RADHAKRISHNAN, SHANTHI NIVAS, VIA. PATTIKKAD,THRISSUR DISTRICT. 2. SANDHOSH KUMAR, S/O.LATE RADHAKRISHNAN, SHANTHI NIVAS, VIA. PATTIKKAD, THRISSUR DIST. 3. SANDEEP, S/O.LATE RADHAKRISHNAN, SHANTHI NIVAS, VIA. PATTIKKAD, THRISSUR DIST. 4. JAYAPALAN, S/O. CHANDRAN, NOCHIKAD HOUSE, VATTAPADAM, CHITTILACHERY P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 5. MRS. KAMALA MENON, GIFT SHOP, INDIAN HOTEL, MADURAI,TAMIL NADU-625002 (DELETED). 6. MANOJ, S/O. DAMODHARA MENON, 2ND STREET, B-10, E.M.G.NAGAR, K.PUDUR, MADURAI, TAMIL NADU-7 (DELETED). 7. THE NEW INDIA ASSURANCE CO. LTD., 34, ALAGAR KOIL ROAD, TALLAKULAM, MADURAI, TAMIL NADU-625002. 8. NARAYANAN EZHUTHASSAN K., S/O. KRISHNAN EZHUTHASSAN, NEAR GOVT. U.P.SCHOOL, P.O. MUDAPPALLUR, PALAKKAD. R5 & R6 are deleted as per order dated 26.10.06 on IA 2029/06 ADV. SRI.T.C.SURESH MENON FOR R1 TO 3 SRI.RENIL ANTO KANDAMKULATHY FOR R7 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2008 ALONG WITH MACA NO. 930 OF 2006,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.Nos.676 & 930 of 2006 --------------------------------- JUDGMENT Balachandran, J. The widow, children and mother of one Radhakrishnan, aged 50, who died on 19.9.2000 out of the fatal injuries sustained in a road traffic accident which took place on 3.8.2000, filed O.P. (MV)No.2946/00 claiming a total compensation of Rupees five lakhs. They alleged, inter alia, that late Radhakrishnan was travelling as a pillion rider on an M 80 motor cycle bearing Reg.No.KL-9/H 2748 through the Palakkad-Thrissr National Highway along with one Jayapalan, who was the owner and rider of the said motor cycle and when they reached Wadakkanchery in front of Diana Hotel, a Maruti Van bearing Reg.No.TN-59/E 784, which was coming from the opposite direction, hit them down and that thereupon Radhakrishnan sustained fatal injuries and he was taken to Aswini Hospital for treatment MACA 676 & 930/06 2 and he breathed his last while under treatment on 19.9.2000. The second respondent in the claim petition was the insurer of the motor cycle and respondents 3 to 5 were respectively the owner, the driver and the insurer of Maruti Van which hit down the motor cyclist and the deceased pillion rider. 2. The claim was resisted by respondents 1, 2 and 5 by filing separate written statements. The first respondent, the rider of the motor cycle, contended that if at all any compensation is payable, it has to be paid by the second respondent, the insurer of the motor cycle. The second respondent filed written statement admitting the insurance coverage of the motor cycle under the policy issued by them, but contended that the accident took place on account of the negligence of the driver of the Maruti Van involved in the accident and that the police have registered crime against the driver of the Maruti Van as well. The fifth respondent New India Assurance Co. Ltd. filed MACA 676 & 930/06 3 written statement contenting, inter alia, that the accident was due to the negligence on the part of the first respondent, who was riding the motor cycle and not on the part of the driver of the Maruti Van insured by them. 3. The Tribunal considered the case in the light of the evidence adduced and found that the accident occurred on account of the negligence of the first respondent in riding the motor cycle and consequently, awarded a total amount of Rs.2,85,100/-, to be recovered jointly and severally from respondents 1 and 2 in the claim petition. 4. The second respondent Insurance Company has preferred M.A.C.A.No.676/06 contending that liability should have been cast on the New India Assurance Company, the seventh respondent in their appeal, as according to them, the accident has taken place solely on account of the negligence of the driver of the Maruti Van insured by the seventh MACA 676 & 930/06 4 respondent. The petitioners in the claim petition filed M.A.C.A.No.930/06 claiming enhancement in compensation awarded to them, wherein also, the Oriental Insurance Company, who is the appellant in M.A.C.A.No.676/06 and New India Assurance Co. Ltd., the insurer of the Maruti Van involved in the accident are, inter alia, made respondents. 5. At the time of arguments, it was brought to our notice that the appellant in M.A.C.A.No.676/06 had filed M.A.C.A.No.55/06 against the award in O.P.(MV)No.1210/01, filed by Jayapalan, the rider of the motor cycle involved in the accident, assailing that part of the award, holding both the Insurance Companies liable to compensate for the damages in equal proportion. As per the judgment, this Court allowed the said appeal exonerating the Oriental Insurance Co. Ltd. and making the New India Assurance Co. Ltd. liable for the entire damages awarded in that case. It is submitted that the judgment in M.A.C.A.No.55/06 has become final. MACA 676 & 930/06 5 Consequently, therefore, the said finding has to be accepted and M.A.C.A.No.676/06 filed by the Oriental Insurance Co. Ltd. deserves to be allowed. The result is that the New India Assurance Co. Ltd., the insurer of the Maruti Van involved in the accident, shall be liable to pay the entire compensation due to the claimants in O.P.(MV) No.2946/00. 6. In M.A.C.A.No.930/06, filed by the claimants, the main attack is on the insufficiency of dependency compensation awarded. Though it was alleged that the deceased was a shop keeper earning a monthly income of Rs.5,000/-, only an amount of Rs.2,000/- was accepted as the monthly income for the purpose of awarding loss of earnings. But, for the purpose of awarding the dependency compensation, the monthly income that was accepted by the Tribunal was Rs.1,750/-. The deceased was a 50 year old man and he was maintaining a family consisting of his wife, two children and his MACA 676 & 930/06 6 mother. The notional income of a non-earning person was fixed as per the II schedule at Rs.15,000/- per annum, namely, Rs.1,250/- per month and that was in 1994. The accident, in the instant case, has taken place after six years therefrom and the deceased was not a non-earning person. Considering the entire circumstances, we are of the view that at least Rs.2,500/- will have to be fixed as his monthly income and we fix his monthly income accordingly. Consequently, the dependency compensation due to the appellants will be Rs.2,60,000/- (2500 x 12 x 2/3 x 13). Hence, the appellants will be entitled to an additional compensation of Rs.78,000/- on that count. Though it is contended that the amounts awarded under various other heads also deserve to be enhanced, we are of the view that reasonable compensation has been granted on other counts. However, in view of the total compensation awarded, we are of the view that no further increase is to be granted on any MACA 676 & 930/06 7 other count. In the result, we allow M.A.C.A.No.676/06 holding that the New India Assurance Co. Ltd. is liable to deposit the entire award amount and allow M.A.C.A.No.930/06 in part. We award to the appellants in M.A.C.A.No.930/06 an additional amount of Rs.78,000/- as stated above by way of compensation over and above the compensation awarded by the Tribunal. The said amount with interest at 7.5% also shall be deposited by the New India Assurance Co. Ltd. within two months from today. On deposit, appellants 1 to 3 are allowed to withdraw the same in equal proportion. (J.B.Koshy, Judge) 24th September, 2008 (K.P.Balachandran, Judge) tkv