## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI**
**THURSDAY, THE 16TH DAY OF FEBRUARY 2012/27TH MAGHA 1933**
## **MACA.No. 137 of 2007 ( )**
## **-----------------------OP(MV.)296/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, VADAKARA -----------**
## **APPELLANTS/PETITIONERS IN O.P.(MV):**
**-----------------------------------**
**1. BALAN NAMBIAR, AGED 65 YEARS, S/O.RAMA KURUP, VADAKKE KUNIYIL HOUSE VELLIKULANGARA, P.O.MADAPPALLY COLLEGE VADAKARA TALUK, KOZHIKODE DISTRICT. (FATHER OF DECEASED SUSHANTH).**
**2. T.BHARATHI AMMA, W/O.BALAN NAMBIAR,**
**59 YEARS, RESIDING AT VADAKKE KUNIYIL HOUSE VELLIKULANGARA, P.O.MADAPPALLY COLLEGE VADAKARA TALUK, KOZHIKODE DISTRICT. (MOTHER OF DECEASED SUSHANTH).**
**3. T.RAMESHAN, S/O.BALAN NAMBIAR,**
- **38 YEARS, VADAKKE KUNIYIL HOUSE, VELLIKULANGARA P.O.MADAPPALLY COLLEGE, VADAKARA TALUK KOZHIKODE DISTRICT. (BROTHER OF DECEASED SUSHANTH).**
**4. T.VINAYAN, S/O.BALAN NAMBIAR,**
- **36 YEARS, VADAKKE KUNIYIL HOUSE, VELLIKULANGARA P.O. MADAPPALLY COLLEGE, VADAKARA TALUK KOZHIKODE DISTRICT. (BROTHER OF DECEASED SUSHANTH).**
**5. T.SREESHAN, S/O.BALAN NAMBIAR,**
- **34 YEARS, VADAKKE KUNIYIL HOUES, VELLIKULANGARA P.O.MADAPPALLY COLLEGE, VADAKARA TALUK KOZHIKODE DISTRICT. (BROTHER OF DECEASED SUSHANTH).**
**BY ADVS.SRI.B.KRISHNAN**
**SRI.R.PARTHASARATHY**
**...2/-**
## **MACA.No. 137 of 2007 ( ) -2-**
**RESPONDENTS/RESPONDENTS IN OP (MV):**
**-------------------------------------**
**1. JANEEVAN, MEETHALA VARISAM KUNI HOUSE, S/O.BALAKRISHNAN NAMBIAR, VALLIKKAD, P.O.MUTTUNGAL VADAKARA TALUK, (DRIVER AND OWNER OF AUTORIKSHAW KL.11/E. 933- BAJAJ).**
**2. NATIONAL INSURANCE COMPANY LTD., THALASSERY, POLICY NO.571102/2001 VALID UPTO 19.09.2001 TO 18/9/2002) (INSURER OF KL.11/E-933 BAJAJ AUTO).**
**R1 BY ADVS. SRI.C.VALSALAN**
**SRI.K.RAKESH ROSHAN R2. BY ADV. SRI.JOE KALLIATH**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**Mn**
## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ**
**--------------------------------------------MACA No. 137 of 2007 --------------------------------------------Dated this the 16[th] day of February 2012**
## **JUDGMENT**
## **Ramakrishna Pillai, J**
**The claimants are in appeal.**
**2. The appellants approached the Tribunal claiming compensation to the tune of Rs.5 lakhs on account of the death of the son of the first and second appellants in a road traffic accident occurred on 6.11.2001.**
**3. Allegedly, while the deceased Sushanth was travelling by an autorickshaw, the vehicle capsized and as a result he sustained very fatal injuries to which he succumbed while undergoing treatment in the hospital. Against the aforesaid claim, the learned Tribunal awarded a sum of Rs.1,94,000/- as compensation under various heads. The adequacy of compensation awarded and the direction of the learned Tribunal exonerating the second respondent Insurance Company from paying the compensation amount are under challenge. It was found by the learned Tribunal that the second respondent Insurance Company is not liable to pay compensation as the driver of the autorickshaw was**
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**not having a valid driving licence at the relevant time.**
**4. We have heard the learned counsel for the appellants and the learned counsel for the respondents.**
**5. The evidence reveals that the deceased was 27 years old at the time of the accident. He was unmarried. According to the learned counsel for the appellants, the deceased was an autorickshaw driver and was earning a monthly income of Rs.9,000/-. But the learned Tribunal, for computing the compensation for loss of dependency, fixed the monthly income of the deceased at Rs.2000/-, which according to the learned counsel for the appellant is too low. We do notice that the accident had occurred in the year 2001. It is only reasonable to presume that the deceased who was aged 27 might have earned atleast Rs.2500/- per month by engaging himself. Thus, for computing the compensation for loss of dependency, we are fixing the monthly income of the deceased at Rs.2500/-. The correct multiplier, i.e. The multiplier applicable to the age group of the mother of the deceased was adopted by the learned Tribunal for computing the compensation for loss of dependency. The mother of the deceased who is the second appellant was only 55 years at the time of the accident. Thus, the learned Tribunal has adopted the multiplier 11.**
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**6. It is pointed out by the learned counsel for the respondent Insurance Company that while fixing the compensation for loss of dependency, the learned Tribunal has deducted 1/3[rd] of the amount arrived at taking into account the expenses which the deceased would have incurred for maintaining himself had he been alive. Placing reliance on the principle laid down by the Apex Court in Sarla Verma** v **Delhi Transport Corporation** (2010(2) KLT 802 SC), **it was pointed out that one half of the amount could have been deducted in consideration of the expenses which the deceased would have incurred. If the compensation for loss of dependency is recalculated fixing the monthly income of the deceased at Rs.2500/-, adopting the multiplier 13 and deducting one half as above, the compensation for loss of dependency will come to Rs.1,65,000/-. The learned Tribunal has awarded a sum of Rs.1,76,000/- as compensation for loss of dependency. Thus, we find that the compensation for loss of dependency shall stand reduced by Rs.11,000/-. Towards funeral expenses, only Rs.2,000/- was awarded by the Tribunal. We are awarding Rs.3,000/- more under that head. It is in evidence that the death occurred after five days while the deceased was undergoing treatment in the hospital. No amount was awarded by the learned Tribunal towards compensation**
MACA No.137 of 2007 4
**for pain and suffering. Considering the gravity of injuries and the period of hospitalisation, we are of the view that Rs.10,000/- could have been awarded by the Tribunal for pain and suffering. Hence, we are awarding the said amount. Towards loss of love and affection, the learned Tribunal has awarded a sum of Rs.15,000/-. We are of the view that some more amount could have been awarded towards loss of love and affection. Hence, we are awarding Rs.5,000/- under that head. Under the head loss of estate, no amount has been awarded by the Tribunal. Hence we are awarding Rs.5,000/- towards that head. Thus, in total, the appellants are entitled to get an additional sum of Rs.12,000/- (Rupees Twelve Thousand only) in addition to the amount that has already been awarded by the Tribunal.**
**7. We notice that the learned Tribunal has exonerated the second respondent Insurance Company from paying the compensation on the ground that the first respondent who was the owner cum driver of the autorickshaw was not having a valid driving license at the time of the accident. The learned counsel appearing for the first respondent submitted that the first respondent was holding a valid driving license at the time of the accident. But there is nothing on evidence to prove the same. The records reveal that**
MACA No.137 of 2007 5
**the first respondent kept away from the Tribunal through out the proceedings. Hence, the submission now made by the learned counsel for the first respondent does not inspire confidence. It is also relevant to note that the first respondent has not chosen to file an appeal or cross objection challenging the finding of the Tribunal. However, we are of the view that the Insurance Company cannot be exonerated from the liability of paying the compensation merely because of the fact that the first respondent was not having a valid driving license. Entrusting the vehicle to an unlicenced driver is only a violation of the conditions made mention of in the policy. Hence what could have been done by the Tribunal was to direct the Insurance Company to pay the award amount and to recover the same from the first respondent who was the registered owner. Hence the exoneration of the Insurance Company from making the payment calls for a modification.**
**8. In the result, the appeal is allowed as under.**
**(a) The award shall stand modified and the appellants are entitled to get an additional sum of Rs.12,000/- as compensation. The additional amount awarded shall carry interest at the rate of 7.5% per annum from the date of the award.**
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**(b) The finding of the learned Tribunal exonerating the second respondent Insurance Company from paying the award amount is hereby set aside. The second respondent is hereby directed to pay the award amount to the appellant and to recover the same from the first respondent.**
**Sd/- PIUS C.KURIAKOSE, JUDGE**
**sd/- A.V.RAMAKRISHNA PILLAI, JUDGE**
**css/ true copy**
**P.A.TO JUDGE**
