IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 MACA.No. 666 of 2004() ---------------------- OPMV.456/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT/APLICANT: ----------------------------------- 1. S. LATHA, AGED 30, T.C.50/1022, KOTTAMVATHUKKAL VEEDU, THALAYIL, KALADY WARD, THIRUVANANTHAPURAM. 2. ANUP RAJ (MINOR) S/O. LATHA, DO. DO. 3. ABHIN RAJ (MINOR), S/O. LATHA, DO. DO. 4. RAJAMMA, AGED 60, T.C. 50/1022, KOTTAMVATHUKKAL VEEDU, THALIYAL, KALADY WARD, THIRUVANANTHAPURAM. (MINORS 2 & 3 REPRESENTED BY MOTHER LATHA, 1ST APPELLANT). BY ADVS. SRI.V.RAJAGOPAL, SRI.K.N.CHATHUKUTTY, SRI.G.GOPAKUMAR (TVM). RESPONDENT(S): RESPONDENTS: ----------------------------------------------------- 1. NAZEEN BANU, D/O. P.A. ABDUL HAMEED, FATHIMA COTTAGE, T.C.49/128, KAMALESWARAM, MANACAUD P.O., THIRUVANANTHAPURAM. 2. NAZRUDDEEN. A., S/O. P.A. ABDUL HAMEED,DO. DO. Kss ..2/- ..2.... MACA NO.666/2004 3. MANAGER, UNITED INDIA INSSURANCE CO.LTD. MALANKARA BUILDING, V.J.T. HALL ROAD, PALAYAM, THIRUVANANTHAPURAM. 4. J. SEBASTIAN, S/O. JOSEPH, T.C.14/756, OBSERVATION LANE, PALAYAM, THIRUVANANTHAPURAM. 5. DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO.LTD., BRANCH UNIT II FLOOR, K.N. MATHEW BUILDING, GANDHARIAMMAN COIL ROAD, THIRUVANANTHAPURAM. R1 & R2 BY ADVS. SRI.K.L.NARASIMHAN, SRI.A.MOHAMMED FAIZAL. R3 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE, SRI.P.JACOB MATHEW. R5 BY ADV.SRI.N.S.MOHAMMED USMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 666 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 28th day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimants in O.P.(MV) No.456 of 1994 of the Motor Accidents Claims Tribunal, Thiruvananthapuram challenge the judgment and award of the Tribunal dated July 5, 2003 awarding a compensation of Rs.7,400/- for the loss caused to them, on account of the death of S.Rajesekharan Nair in a motor accident. 2. Initially, the O.P. was filed, claiming a compensation for the loss caused to the deceased/first claimant, on account of the injuries sustained by him in a motor accident. As he developed mental disorder, he was represented by his father. Subsequently, the first claimant died and his legal representatives were impleaded as additional claimants 2 to 5 and compensation was claimed for the death of Rajesekharan Nair. MACA 666/2004 2 3. The facts leading to this appeal, in brief, are these:- On November 7, 1993 at about 12.20 p.m. deceased Rajasekharan Nair was driving his auto-rickshaw bearing registration No.KVT 3526 along the Eastfort – Manacaud road from north to south. When he reached near Fort Police Station, a car bearing registration No.KBV 4593, driven by the second respondent, came at a high speed from the opposite direction and dashed against the auto-rickshaw of the deceased. Due to the impact, the auto-rickshaw capsized and the first claimant sustained serious injuries. Subsequently, he developed mental illness and the doctor diagnosed his illness as affective disorder. He, subsequently, died on September 27, 2002. According to the claimants, the accident occurred due to the rash and negligent driving of the offending car by the second respondent and that the first claimant died as a result of the injuries sustained in the acident. The first respondent as the owner, the second respondent as the driver and third respondent as the insurer of the offending car are jointly and severely liable to pay the MACA 666/2004 3 compensation to the claimants. The claimants claimed compensation of Rs.6 lakhs. 4. Respondents 1 and 2, the owner and driver of the offending car, filed a written statement, admitting the accident, but denying the liability. The third respondent, insurer of the offending car, filed a written statement, admitting the policy. Respondents 4 and 5 are the owner and insurer of the auto-rickshaw. The fourth respondent remained absent. The fifth respondent filed a written statement, admitting the policy, but contending that the accident occurred due to the negligence on the part of the second respondent. 5. PWs.1 to 3 were examined and Exts. A1 to A 14 were marked on the side of the claimants. No evidence was adduced by the respondents. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to the negligence on the part of the second respondent and that there was no evidence to show that the first claimant died, as a result of the injury sustained in the accident and awarded a MACA 666/2004 4 compensation of Rs.7,400/- with interest at the rate of 9% p.a. from the date of petition till realization against respondents 1 to 3. The claimants have come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 6. Heard the learned counsel for the appellants/claimants and learned counsel for respondent Nos.1, 2, 3 and 5. 7. 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, driver of the offending car, is not challenged in this appeal. 8. The following points arise for consideration in this appeal:- 1) Whether the deceased first claimant died as a result of the injuries sustained in the accident? 2) Whether the claimants are entitled to any enhanced compensation? 9. Ext.A5 discharge card issued from an Ayurveda MACA 666/2004 5 Hospital shows that the deceased/first claimant had sustained injuries in a road traffic accident and had complained of pain on middle part of the right thigh region and right eyebrow and had restricted movements in the right knee joint. But, there is no evidence to show that the first claimant died as a result of the injuries sustained by him. Therefore, the claimants are entitled to compensation only for the injuries sustained by the first claimant in the accident. 10. The Tribunal awarded a total compensation of Rs.7,400/-. Break up of the compensation awarded is as under:- Loss of earning : Rs. 900/- Transportation charges : Rs. 500/- Damage to clothing : Rs. 500/- Medical expenses : Rs. 500/- Pain and suffering : Rs.5,000/- ------------------ Total : Rs.7,400/- ======= 11. Taking into account the nature of the injuries sustained by the deceased/first claimant and the fact that the claimants have failed to show that the first claimant died as a result of the injuries sustained in the accident, we feel that MACA 666/2004 6 the compensation awarded by the Tribunal is just and reasonable. That being so, the claimants are not entitled to any enhanced compensation. Consequently, the appeal has to be dismissed. In the result, the appeal is dismissed. No costs. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn