Ayisha and others v. A.J. Raichel, C.K. Varkey and The New India Assurance Company Ltd.

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 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 MACA.No. 1885 of 2006() ----------------------OPMV.589/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): APPELLANT/PETITIONERS: ------------------------------------ 1. AYISHA, W/O. VAPPU. 2. SHEEREENA, D/O. AYISHA. 3. SHAMUSUDHEEN (MINOR), S/O.AYISHA. 4. SHAMSEENA (MINOR), D/O. AYISHA. 5. BEEVATHU, W/O. LATE KUNJIMOIDU. (MINOR APPELLANTS 3 AND 4 REPRESENTED BY THEIR GUARDIAN MOTHER THE 1ST APPELLANT HEREIN). ALL ARE RESIDING AT PULICHARAN VEETTIL HOUSE, IRINILAMCODE, P.O. MULLOORKKARA, THRISSUR DISTRICT BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SRI.JIBU P THOMAS SRI.SUNIL J.CHAKKALACKAL ## RESPONDENT(S): RESPONDENTS: --------------------------- 1. A.J. RAICHEL, W/O. V.C.ELEAS, RESIDING AT VARAPPATTUKUZHIYIL HOUSE, P.O. KILLIMANGALAM, THRISSUR DISTRICT. 2. C.K. VARKEY, S/O. KURIYAKKOSE, RESIDING AT CHEERAKUZHIYIL HOUSE, MUVATTUPUZHA P.O ERNAKULAM DISTRICT. 3. THE NEW INDIA ASSURANCE COMPANY LTD., KOLLANNUR BUILDING, PALACE ROAD, THRISSUR. ADV. SRI.KKM.SHERIF FOR R3 SRI.A.A.ZIYAD RAHMAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/10/2010 ALONG WITH MACA NO. 2009 OF 2006 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.Nos.1885 & 2009 OF 2006** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of October, 2010 ## **JUDGMENT** ## Barkath Ali, J. Both these appeals are directed against the judgment and award of the Motor Accidents Claims Tribunal, Thrissur dated November 28, 2005 in O.P.(MV)No.589/2003. The appellants in M.A.C.A.No.1885/2006 are the claimants who are the wife, children and mother of deceased Vappu, who died in a motor accident that occurred on January 13, 2003 at about 12 O'clock . Appellant in M.A.C.A.No.2009/2006 is the third respondent Insurance Company. 2. The accident happened while the deceased was pillion riding on the motor cycle bearing Reg.No.KBF/8232 which was ridden by one Rajesh and when they reached at Puthiya Workshop at Chirankonam, they were knocked down by a tipper lorry bearing Reg.No. KL8/J 2176 driven by the second respondent. Deceased sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment from Aswini Hospital, Thrissur. The rider MACA.No.1885/2006 2 of the motor cycle also sustained injuries. Alleging negligence against the second respondent, the driver of the tipper lorry, the claimants filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 18 lakhs. 3. First respondent, the owner of the offending lorry remained absent before the Tribunal. No relief was claimed against the second respondent, the driver of the offending lorry. The third respondent, the insurer of the offending lorry filed a written statement admitting the accident, but denied the liability. 4. This O.P. was jointly tried along with O.P.(MV) No.592/2003 filed by the rider of the motor cycle and a common award was passed by the Tribunal. PW1 was examined and Exts.A1 to A26 were marked on the side of the claimants. No evidence was adduced by the contesting third respondent. On an appreciation of evidence, the Tribunal awarded a total compensation of Rs. 8,51,200/- with interest @ 7% per annum from the date of petition till realisation and proportionate cost. The claimants have filed M.A.C.A.No.1885/2006 claiming enhancement of the compensation. The third respondent MACA.No.1885/2006 3 Insurance Company has filed M.A.C.A.No.2009/2006 contending that the compensation awarded by the Tribunal is excessive and that this being a head on collision between the two vehicles, the Tribunal should have found that there was also negligence on the part of the rider of the motor cycle. 5. Heard the counsel for the appellants and the counsel for the respondents. 6. The following points arise for consideration : _1. Whether the compensation awarded by the Tribunal is excessive ?_ _2. Whether the claimants are entitled to any enhancement of the compensation ?_ _3. Whether the finding of the Tribunal that the accident occurred due to the negligence of the second respondent in the O.P.,_ the rider of the offending lorry can be sustained ? 7. The Tribunal found that the accident occurred due to the negligence of the second respondent in the O.P., the driver of the lorry on the basis of Exts.A1, A2 and A7. Ext.A1 is the copy of F.I. Statement and Ext.A2 is the copy of FIR and Ext.A7 is the copy of MACA.No.1885/2006 4 police charge. Police has charged the case against the second respondent. No contra evidence was adduced by the contesting third respondent in the O.P. to show that there was any negligence on the part of the rider of the motor cycle. Therefore, the Tribunal is perfectly justified in holding that the accident occurred due to the negligence of the second respondent in the O.P.. The finding of the Tribunal on this point is confirmed. 8. The next question for consideration is whether the claimants are entitled to any enhanced compensation. The Tribunal awarded a total compensation of Rs. 8,51,200/-. The break up of the compensation awarded is as under : Transportation - Rs. 1,500/Extra nourishment - Rs. 1,000/Damage to clothing - Rs. 500/Treatment exp. - Rs. 62,600/Bystander exp. - Rs. 600/Funeral exp. - Rs. 5,000/Pain and suffering - Rs. 20,000/Loss of love and affection - Rs. 20,000/Loss of consortium - Rs. 20,000/Loss of dependency - Rs. 7,20,000/- 9. Counsel for the claimant sought enhancement of compensation for the loss of dependency. MACA.No.1885/2006 5 10. The Tribunal took the monthly income of the deceased as Rs. 7,500/-. After deducting Rs.3,500/- towards his personal expenses, took the balance amount of Rs. 4,000/- per month as his contribution to his family and adopted a multiplier of 15 and awarded Rs. 7,20,000/for loss of dependency. Deceased was employed as a driver in Muscut, according to the claimants. Ext.A11 series are passport of the deceased. Ext.A12 is the licence issued by Sulthanate of Oman, Royal Oman Police . Taking into consideration the above aspect, the Tribunal is perfectly justified in taking his monthly income as Rs. 7,500/-. The Tribunal deducted Rs. 3,500/- for the personal expenses of the deceased which appears to be excessive. In the light of the principles laid down by the Supreme Court in **Sarala Varma v. Delhi Transport Corporation and another** ( 2009(6) SCC 121), 1/3 need be deducted for the personal expenses of the deceased in assessing the loss of dependency in the case of death of a person in a motor accident. Thus, his monthly contribution to his family can be taken as Rs.5,000/-. The multiplier adopted by the Tribunal as 15 is not seriously challenged. Thus calculated, for the loss of dependency, the claimants are entitled MACA.No.1885/2006 6 to a compensation of Rs. 9,00,000/- ( 5000 x 12 x 15). Thus on this count, the claimants are entitled to an additional compensation of Rs. 1,80,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. That being so, the appeal filed by the Insurance Company has to be dismissed. 11. Thus, the claimants are found entitled to an additional compensation of Rs. 1,80,000/- with interest @ 7% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of copy of this judgment. The award of the Tribunal is modified to the above extent. In the result, M.A.C.A.No.1885/2006 is disposed of as found above. M.A.C.A.No.2009/2006 is dismissed. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** sv. MACA.No.1885/2006 7 MACA.No.1885/2006 8