Annie and Others v. Arun Mathew Innath and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 18TH DAY OF JANUARY 2016/28TH POUSHA, 1937 MACA.No. 517 of 2012 ------------------------ AGAINST THE AWARD IN OPMV 698/2001 of SPL.COURT FOR EC ACT CASES & MACT,TSR DATED 20-10-2011 APPELLANTS/APPELLANTS: ----------------------------- 1. ANNIE - W/O.VINCENT, MUKKATTUPARAMBIL HOUSE, KURIACHIRA P.O. MAVELI NAGAR, CHELAKKOTTUKARA, THRISSUR-680 006. 2. JENSON S/O.VINCENT, MUKKATTUPARAMBIL HOUSE, KURIACHIRA P.O. MAVELI NAGAR, CHELAKKOTTUKARA, THRISSUR-680 006. 3. BENSON S/O.VINCENT, MUKKATTUPARAMBIL HOUSE, KURIACHIRA P.O. MAVELI NAGAR, CHELAKKOTTUKARA, THRISSUR-680 006. 4. JOHNSON S/O.VINCENT, MUKKATTUPARAMBIL HOUSE, KURIACHIRA P.O. MAVELI NAGAR, CHELAKKOTTUKARA, THRISSUR-680 006. BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD SRI.K.A.ANAS RESPONDENTS: - ---------------- 1. ARUN MATHEW INNATH RESIDING AT V/332, SHORNUR ROAD, PERINGAVU THRISSUR-680 018. 2. TONEY @ JOSHY S/O.DECRUSE, RESIDING AT KARATTUPARAMBIL HOUSE CHELAKKOTTUKARA, THRISSUR-680 028. MACA.No. 517 of 2012 2 3. ROYSON - S/O.VINCENT, MUKKATTUPARAMBIL HOUSE, KURIACHIRA P.O. MAVELI NAGAR, CHELAKKOTTUKARA, THRISSUR-680 006. 4. MUHAMMED ELIYAS, THAVAKKAL HOUSE, VELIYANOOR DESOM, THRISSUR-680 638. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-01-2016, ALONG WITH MACA. 1957/2011, MACA. 1958/2011, THE COURT ON 18-01-2016 DELIVERED THE FOLLOWING: ## **P.N.RAVINDRAN & ANU SIVARAMAN, JJ.** ## **= = = = = = = = = = = = = M.A.C.A.Nos.517 of 2012, 1957 and 1958 of 2011** ## **= = = = = = = = = = = = = = Dated this the 18[th] day of January, 2016** ## **JUDGMENT** ## **Anu Sivaraman, J.** These appeals arise from a common award dated 20.10.2011 of the Motor Accidents Claims Tribunal, Thrissur in O.P.(MV).Nos.460 of 2001 and 698 of 2001. ## **M.A.C.A.No.517 of 2012** The appellants are the claimants before the Motor Accidents Claims Tribunal, Thrissur in O.P.(MV).No.698 of 2001. They had filed the claim petition seeking compensation for the death of the son of the first appellant and the brother of appellants 2 to 4. The averment in the claim petition was that while the deceased, who was aged 27 years, was riding a scooter bearing registration No.KL-08 4833, the motor cycle bearing registration No.KL-8B-4973 ridden by the second respondent and owned by the first respondent hit against the scooter causing grievous injuries. The third respondent is a brother of the deceased who did not join the petition as a claimant and had been arrayed as a respondent. The fourth respondent was the person to whom the vehicle stood transferred. The deceased was taken to M.A.C.A.No.517 of 2015 & con.cases **2** Aswini Hospital Thrissur, but he succumbed to the injuries suffered by him. The accident occurred due to the rash and negligent riding of the motor cycle by the second respondent, it was alleged. 2. The first respondent owner filed a written statement contending that the motor cycle had been sold to one Mohammed Iliyas, on 17.07.1999 and he was no longer the owner. The second respondent also filed written statement denying negligence and alleging that the deceased who was intoxicated at the time of the accident had been negligent and had caused the accident. The claim petition was initially disposed of awarding a compensation of Rs.2,63,500/-, but the award was challenged by the first respondent in a writ petition before this court and the matter was remanded to the Tribunal for fresh consideration after giving an opportunity to the parties to put forward their contentions. Thereafter, the first respondent impleaded the fourth respondent stating that he was the real owner of the offending vehicle at the time of the accident. The Tribunal proceeded to try the case afresh and passed the impugned award. 3. On the basis of Ext.A1 F.I.R and Ext.A6 charge sheet, the Tribunal came to conclusion that the second respondent, the rider of the motor cycle was negligent, which, in turn, caused the accident. The monthly income of the deceased, who was stated to be a partner M.A.C.A.No.517 of 2015 & con.cases **3** of a partnership firm by name Wheels Automobiles, Thrissur and a qualified electrician, was taken as Rs.3,000/-. Taking the multiplier of 9, based on the age of the mother of the deceased and deducting 50% of the income, the sum of Rs.1,62,000/- was awarded as compensation under the head loss of dependency. Further, an amount of Rs.1,000/- was awarded under the head transportation expenses, Rs.3,000/- towards funeral expenses, Rs.10,000/- for love and affection and Rs.5,000/- for pain and suffering. A total compensation of Rs.1,81,500/- was awarded by the Tribunal with interest at the rate of 7.5% per annum and costs. 4. Taking note of the contentions of the first respondent as well as the evidence adduced by him, the Tribunal came to the conclusion that as on the date of the accident the first respondent was the registered owner of the vehicle. The vehicle was not covered by a valid policy of insurance and the first respondent was held liable to satisfy the common award in O.P.(MV).No.698 of 2001 as well as in O.P(MV) No.460 of 2001 filed by the pillion rider. Dissatisfied with the quantum of compensation awarded, the claimants in O.P.(MV) No.698 of 2001 has preferred the instant appeal. 5. We heard Sri.T.C.Suresh Menon, learned counsel for the petitioner and Sri.Santhosh P. Poduval, learned counsel for the first respondent. The main contention raised by the learned counsel for the M.A.C.A.No.517 of 2015 & con.cases **4** appellant is that the multiplier adopted by the Tribunal (9) taking the age of the mother of the deceased is not proper in view of the decision of the Hon'ble the Supreme Court in **Sarla Verma v.Delhi Transport Corporation** [2010(2) KLT 802(SC)]. It is submitted that the position that it is the age of the deceased which has to be taken into account in cases of death has been settled by series of decisions of this court as well as the Apex court . It is further argued that the income of the appellant ought to have been accepted as claimed by the appellants. The amounts granted towards funeral expenses, compensation for love and affection and pain and suffering are disproportionately low, it is contended 6. The learned counsel appearing for the first respondent on the other hand would contend that the fixation of the liability by the Tribunal on him is not sustainable, since he had a specific case that the fourth respondent was in ownership and possession of the vehicle as on the date of the accident. It is further contended that the Tribunal ought to have held that he is entitled to recover the amount awarded by the Tribunal from the fourth respondent and should have incorporated such direction in that award itself. He also contends that the compensation awarded is just and proper in the facts and circumstances of the case. M.A.C.A.No.517 of 2015 & con.cases **5** 7. After considering the pleadings and the materials on record, we are of the opinion that the multiplier to be adopted in the case of death is with reference to the age of the deceased and not the age of the dependents. Though the learned counsel contented that the income claimed should have been accepted by the Tribunal, we find that no material was available on record to prove the income. In the above circumstances, the income notionally arrived at by the Tribunal cannot be taken exception to. Taking the income of the deceased notionally as Rs.3,000/- and adopting the multiplier of 17 and deducting 50% towards personal expenses, since the deceased was a bachelor, the appellants would be entitled to Rs.3000 x 12 x 17 x ½ = Rs.3,06,000/- towards compensation for loss of dependency. Deducting the sum of Rs.1,62,000/- awarded by the Tribunal, the appellants would be entitled to a further sum of Rs.1,44,000/- under that head. 8. The Tribunal has awarded only a sum of Rs.5,000/- towards pain and suffering. The deceased succumbed to the injuries on his way to the hospital. He would definitely have suffered much pain and shock as a result of the accident. We are of the opinion that an additional sum of Rs.5000/- ought to have been awarded towards compensation towards pain and suffering. Further we notice that the Tribunal had granted only an amount of Rs.10,000/- as compensation M.A.C.A.No.517 of 2015 & con.cases **6** towards loss of love and affection. The first appellant is the mother of the deceased, who was aged 27 years at the time of his death. Going by the decision of the Apex Court in **Amrit Bhanu Shali v. National Insurance Co, Ltd** [(2012)11 SCC 738], the appellant would thus be entitled Rs.50,000/- as compensation for loss of love and affection. The appellants would thus be entitled to a further sum of Rs 40,000/under that head. It is seen that the Tribunal has awarded only a sum of Rs.3,000/- towards funeral expenses. Going by the decision in **Amrit Bhanu Shali** (supra), the appellants would be entitled to a further sum of Rs.7,000/- under that head as well. The compensation awarded by the tribunal under the other heads does not, in our opinion, warrant any interference. We accordingly allow the appeal in part and award an additional compensation of Rs.1,96,000/- to the appellants/claimants over and above the compensation awarded by the Motor Accidents Claims Tribunal. The first respondent registered owner shall deposit the said sum together with interest at 9% per annum from the date of petition till the date of deposit, within two months from today. Upon such deposit being made, the 75% of the amount deposited shall be released to the first appellant and the balance amount shall be apportioned equally between appellants 2 to 4 and paid to them. No costs. M.A.C.A.No.517 of 2015 & con.cases **7** ## **M.A.C.A.Nos.1957 and 1958 of 2011** The appellant is the first respondent in O.P.(MV).Nos.460 of 2001 and 698 of 2001. He was the registered owner of the motor cycle bearing registration No.KL-8B-4973 involved in the accident. The motor cycle was ridden in a rash and negligent manner by the fifth respondent in M.A.C.A. No.1958 of 2011 and the second respondent in M.A.C.A 1957 of 2011, who was the second respondent in both the claim petitions. The Tribunal found that the rider of the motor cycle had been negligent and that the vehicle was not covered by a valid policy of insurance. The appellant, who was the registered owner of the vehicle was found liable to satisfy the award. The claim petition was initially disposed of awarding a compensation of Rs.2,63,500/- but the award was challenged by the first respondent in a writ petition before this court and the matter was remanded to the Tribunal for fresh consideration after giving an opportunity to the parties to put forward their contentions. Thereafter the first respondent impleaded the fourth respondent stating that he is the real owner of the offending vehicle at the time of the accident. The Tribunal proceeded to try the case afresh and passed the impugned award. 2. After fresh trial also the Tribunal categorically found that the registration in respect of the offending vehicle stood in the appellant's name as on the date of the accident and he was therefore liable to M.A.C.A.No.517 of 2015 & con.cases **8** satisfy the award. It was also found from the registration particulars of the vehicle that the fourth respondent did not become the registered owner of the motorcycle at any time and that the registration was transferred to Sri.Tony K.C by the first respondent on 22.12.2001. We have considered the rival contentions and gone through the pleadings and the materials on record. It has been held by a Division Bench of this court in **Baby Varghese v. Anitha Roy** (2015 (3) KLT 78) referring to the binding decisions of the Apex Court that the liability to pay compensation is on the registered owner of the motor vehicle involved in the accident and he cannot be heard to contend that the vehicle had been transferred before the accident, so long as he remains the registered owner and the policy of insurance stands in his name. In the light of the finding of the Tribunal that the registration of the vehicle was not transferred to the fourth respondent, the refusal to direct right of recovery against the fourth respondent also cannot be faulted. We accordingly hold that there is no merit in these appeals. The appeals fail and are accordingly dismissed. No costs. sd/- ## **P.N.Ravindran,Judge** sd/- **Anu Sivaraman, Judge** sj