IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 MACA.No. 1481 of 2005() ----------------------------------- OPMV.1622/1996 of PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S):/PETITIONERS ------------------------------------------- 1. ABDULLAKOYA.K.T, S/O.AHAMMEDKUTTY, KIZHAKKINIMANNIL NILAM, KANNATTIKKAL, VENGERI POST, KOZHIKODE. 2. SUBAIDA.K.T, W/O.ABDULLAKOYA.K.T, KIZHAKKINIMANNIL NILAM, KANNATTIKKAL, VENGERI POST, KOZHIKODE. 3. RAMALATH, D/O.ABDULLAKOYA.K.T, KIZHAKKINIMANNIL NILAM, KANNATTIKKAL, VENGERI POST, KOZHIKODE. 4. JASMI, D/O.ABDULLAKOYA.K.T, AGED 17 YEARS (MINOR), KIZHAKKINIMANNIL NILAM, KANNATTIKKAL, VENGORI POST, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN tss RESPONDENT(S): RESPONDENTS ------------------------------------------------- 1. THE MANAGING DIRECTOR, CHERAN TRANSPORT CORPORATION, COIMBATORE. 2. K.JAYASEELAN DAVID, S/O.JOSEPH, MARUSAVAUTH JAIN, KETHY POST, NILGIRI DISTRICT, PILLAYORTHUDI STREET, UTHAKAMUNDA, TAMILNADU. 3. MAHAKAVI BHARATHIYAR, TRANSPORT CORPORATION, OOTTY, TAMILNADU. R1 BY SRI.P.RAVINDRAN, SENIOR ADVOCATE R2 BY ADVS. SRI.ANIL SIVARAMAN, SMT.RAJI VINCENT. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2011, ALONG WITH MACA. NO.2197 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.Nos. 1481 of 2005 and 2197 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 3rd day of March, 2011 JUDGMENT Barkath Ali, J. Both these appeals arise out of the same judgment and award of the Principal Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV) No.1622 of 1996 dated April 27, 2005. M.A.C.A.No.2197 of 2007 is filed by the respondent No.1 in the O.P., who is the owner of the offending bus, while M.A.C.A.No.1481 of 2005 is filed by the claimants in the O.P. In both these appeals the appellants challenge the judgment and award of the Tribunal awarding a compensation of Rs.2.11,000/- for the loss caused to the claimants on account of death of one Abdul Gafoor in a motor accident. 2. The accident occurred on April 15, 1996 at about 4 p.m. at Oodathodu near Meppadi while deceased Abdul Gafoor and others were travelling in a jeep bearing MACA 1481/2005 & con. case 2 registration No.KL-11/C 3100 from Ootty to Calicut. When they reached at Odathodu, it collided head on with a bus bearing registration No.TN.D. 490. Abdul Gafoor sustained serious injuries and he succumbed to the injuries sustained . Alleging negligence against driver of the offending bus, respondent No.2 in O.P., the claimants who are parents and sisters of the deceased filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.5 lakhs. 3. The offending bus belongs to Cheran Transport Corporation,Coimbatore. Respondent No.1 in the O.P. is the Managing Director of the Corporation and respondent No.3 in the O.P. is the Mahakavi Bharathiyar Transport Corporation. The bus belong to them. Respondent No.2 in the O.P. is the driver of the offending bus at the time of the accident. They filed a joint written statement admitting the accident but denied the liability. They attributed negligence to the driver of the jeep. 4. This O.P. was tried along with other Original MACA 1481/2005 & con. case 3 Petitions filed by legal heirs of deceased persons in the accident as well as other injured persons. PWs.1 and 2 were examined and Exts.A1 to A24 were marked on the side of the claimant. On the side of the respondents in the O.P., RW1 was examined and Ext.B1 was marked. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence on the part of respondent No.2 in the O.P., the driver of the offending bus, and awarded a compensation of Rs.2,11,000/- with interest @ 7% p.a. from the date of petition till realization and cost of Rs.1,500/-. The claimants have filed M.A.C.A. No.1481 of 2005 claiming enhancement of the compensation awarded by the Tribunal while respondent No.1 in the O.P. owner of the offending bus has filed M.A.C.A.No. 2197 of 2007 challenging the finding of the Tribunal regarding negligence. 5. Heard the counsel for the claimants and the counsel for the Corporation. 6. The following points arise for consideration in this MACA 1481/2005 & con. case 4 appeal:- 1) Whether the finding of the Tribunal that the accident occurred due to negligence of respondent No. 2 in the O.P. can be sustained ? 2) Whether the compensation awarded by the Tribunal is excessive. If not whether the claimants are entitled to any enhanced compensation? 7. The police has charged the case against respondent No.2 in the O.P. Ext.A2 is the F.I.R. PW2, one of the eye-witness to the incident, as well as the injured testified in a convincing manner that the accident occurred due to negligence of respondent No.2 in the O.P. In an attempt to prove that the accident occurred due to negligence of the driver of the jeep, the respondents in the O.P. examined RW1, the 2nd respondent in the O.P., and produced Ext.B1 photograph of the accident. The lower court did not believe the evidence of RW1. We have also gone through his evidence. We find no reason to come to a different conclusion. Further photograph Ext.B1 shows that the bus is on the wrong side. Therefore, we are inclined to MACA 1481/2005 & con. case 5 confirm the finding of the Tribunal that the accident occurred due to negligence of respondent No.2 in the O.P., driver of the offending bus. 8. The next question for consideration is whether the claimant is entitled to any enhanced compensation. 9. The Tribunal took the monthly income of the deceased as Rs.1,500/-. After deducting 1/3rd for his personal expenses Rs.1,000/- was taken as his mothly contribution to his family. The Tribunal adopted a multiplier of 16 and awarded Rs.1,92,000/- for the loss of dependency. The deceased was aged 19 at the time of the accident and he was working in loading and unloading section of Reghuram & Co., Merchant, Kozhikode earning Rs.3,000/- per month, according to the claimants. Considering the above aspect, we are of the view that monthly income of the deceased can reasonably be fixed as Rs.2,500/-, which comes to Rs.30,000/- per annum. After deducting 1/3 for his personal expenses balance of Rs.20,000/- can be taken as his annual contribution to his family. The multiplier adopted MACA 1481/2005 & con. case 6 by the Tribunal as 16 is not seriously challenged. Thus, for the loss of dependency, the claimants are entitled to a compensation of Rs.3,20,000/- (Rs.20,000/- x 16). Thus the claimants are entitled to an additional compensation of Rs.1,28,000/- on this count. 10. The Tribunal awarded Rs.10,000/- towards loss of love and affection. Taking into consideration the age of the deceased and the claimants, we feel that a compensation of Rs.20,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore,we are not disturbing the same. Regarding the apportionment of the compensation amount awarded and disbursement of the same, the direction of the Tribunal will stand. 11. Therefore, the claimants are entitled to an additional compensation of Rs.1,38,000/-. The Tribunal awarded interest @ 7% per annum, which appears to be very low. The claimants entitled to interest @ 7.5% per annum from the date of petition till realization for the MACA 1481/2005 & con. case 7 compensation already awarded and also for the enhanced compensation. Respondents 1 and 3 in the O.P. being the owners of the offending bus shall deposit the amount within two months from the date of receipt of a copy of this judgment. 12. In the result M.A.C.A. No.1481 of 2005 is disposed of as found above and M.A.C.A. No. 2197 of 2007 is dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE mn.