MACA Nos. 1559/2007, 1609/2007 and 1955/2007 v. N. Najumudheen, Vinodh and The Branch Manager, Oriental Insurance Co. 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** **MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932** **MACA.No. 1559 of 2007() -----------------------** **OPMV.1099/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR ....................** ## **APPELLANT(S): PETITIONERS** - **--------------** **1. K.R.VIJAYAKUMAR, AGED 46, S/O.RAMAKRISHNAN ACHARY, KALLUVILA VEEDU, THAMARAKKUDY P.O.,MYLOM VILLAGE, KOTTARAKKARA, REP. BY POWER OF ATTORNEY HOLDER J.SATHEEBHAI, SREEVIJYAMAM,MYTHIRI NAGAR, UOTTORUKUNNU.** **2. K.R.GOPAKUMAR, AGED 43, S/O.RAMAKRISHNAN ACHARY, --DO--.** **3. R.D.MANI,AGED 41, D/O.RAMAKRISHNAN ACHARY,MIDHUN NIVAS, VAZHOOR EAST P.O., RAMANATTUKARA,MALAPPURAM.** **4. R.D.SOBHA,D/O.RAMAKRISHNAN ACHARY, PUTHEN VEEDU,M ANCHUMALA, CHELIKUZHY, NEDUMON,PATHANAPURAM.** **5. K.R.SREEKUMAR, AGED 33 YEARS, S/O.RAMAKRISHNAN ACHARY, KALLUVILA VEEDU, THAMARAKKUDY P.O., MYLOM VILLAGE, KOTTARAKKARA.** ## **BY ADV. SRI.MANOJ RAMASWAMY** ## **RESPONDENT(S): RESPONDENTS** **---------------** **1. N.NAJUMUDHEEN, S/O.ABDUL SALAM, KUNNUMPURATHU BUNGLOW, ITHIKKARA P.O., MYLAKKAD, KOLLAM.** ## **MACA.NO.1559/2007** ## **2. VINODH,S/O.SREEDHARAN,** **VADAKKETHIL VEEDU,NEAR ST.THOMAS HIGH SCHOOL, PUNNAKKODU P.O., POOYAPPALLY.** ## **3. THE BRANCH MANAGER,** **ORIENTAL INSURANCE CO. LTD, AMAR JYOTHI BUILDING, KADAPPAKADA P.O.,KOLLAM.** **ADV. SRI.M.JACOB MURICKAN FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/06/2010 ALONG WITH M.A.C.A.NOS.1609/07 & 1955/07, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.Nos.1559,1609 & 1955 OF 2007** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of June, 2010 ## **JUDGMENT** ## Barkath Ali, J. All these appeals under Section 173 of Motor Vehicles Act arise out of a common judgment and award of the Motor Accidents Claims Tribunal, Punalur dated June 12, 2006 in O.P.(MV)Nos. 1099/2003, 1101/2003 & 1102/2003. M.A.C.A.No.1559/2007 is filed by the claimants in O.P.(MV)No.1099/2003. M.A.C.A.No.1609/2007 is filed by the claimants in O.P.(MV)No.1101/2003. M.A.C.A.No.1955/2009 is filed by the claimant in O.P.(MV)No.1102/2003. 2. The facts leading to these appeals in brief are these : On September 17, 2003, deceased Ramakrishnan Achary and Devaki and the claimant in O.P.(MV)No.1090/2003 were travelling in a car bearing Reg.No.KL/4/A/6999 driven by the claimant in O.P.(MV) NO.1102/2003 and owned by the claimant in O.P.(MV)No.1091/2003. When the car reached near Ithikkara Bridge near National Highway 47, a lorry bearing Reg.No.KL/P/7593 driven by the second respondent MACA.Nos.1559, 1609,1955 of 2007 2 came at a high speed and dashed against the car of the claimant. The passengers in the car sustained serious injuries and the car was also extensively damaged. Deceased Ramakrishnan Achary and Devaki succumbed to the injuries sustained while undergoing treatment in the hospital. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimants. Claimants 1 to 5 in O.P.(MV)Nos.1099/2003 and 1101/2003 are the sons and daughters of deceased Ramakrishnan Achary and Devaki. They claimed a compensation of Rs. 3,50,000/- and Rs.2,50,000/respectively in the claim petitions. Claimant in O.P.(MV) No.1102/2003 claimed a compensation of Rs. 2 lakhs. 3. Respondents 1 and 2, the owner and driver of the offending lorry though entered appearance did not file any written statement before the Tribunal. The third respondent, the insurer of the offending vehicle, filed a written statement admitting the policy and further contending that there was also negligence on the part of the driver of the car. MACA.Nos.1559, 1609,1955 of 2007 3 4. Pws 1 and 2 were examined and Exts.A1 to A28 were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting third respondent. On an appreciation of evidence, the Tribunal awarded a compensation of Rs. 75,000/- in O.P. (MV)No.1099/2003, Rs. 75,000/- in O.P.(MV)No.1101/2003 and Rs.75,365/- in O.P.(MV)No.1102/2003 with interest @ 6% per annum from the date of petition till realisation and cost. M.A.C.A.No.1099/2003, 5. Claimants in O.P.(MV)No.1099/2003 are the appellants in M.A.C.A.No.1099/2003. They are the sons and daughters of deceased Ramakrishnan Achary. The Tribunal awarded a total compensation of Rs.75,000/- with interest @ 6% per annum from the date of petition till realisation and a cost of Rs.750/- . The break up of the compensation awarded is as follows : Loss of dependency - Rs. 60,000/Funeral expenses - Rs. 3,000/Pain and suffering - Rs. 10,000/Transport to hospital - Rs. 2,000/- 6. Counsel for the claimant sought enhancement of MACA.Nos.1559, 1609,1955 of 2007 4 compensation for the loss of dependency, pain and suffering endured etc. Counsel for the claimant pointed out that no compensation was awarded for the loss of love and affection. 7. The Tribunal took the monthly income of the deceased as Rs. 1500/- and after deducting 1/3 for his personal expenses, took Rs. 12,000/- per annum as his contribution to his family. The Tribunal adopted a multiplier of 5 and awarded a compensation of Rs.60,000/for the loss of dependency. 8. Deceased Ramakrishnan Achary was a retired teacher earning Rs.7,000/- per month as pension which is proved by Ext.A8, Trained Teachers Certificate of the deceased and Ext.A9 series, his pass books. Taking into consideration this aspect, the monthly income of the deceased can be, in our view, reasonably fixed at Rs.2,500/which works out to Rs. 30,000/- per annum. After deducting 1/3 for his personal expenses, the balance amount of Rs. 20,000/- can be taken as his annual contribution to his family. The Tribunal took a multiplier of 5 which appears to be reasonable in the light of the fact that deceased was aged 69 at the time of the accident. Thus, for the loss of MACA.Nos.1559, 1609,1955 of 2007 5 dependency, the claimants are entitled to a compensation of Rs. 1,00,000/- ( 20,000/- x 5). Thus on this count, the claimants are entitled to an additional compensation of Rs. 40,000/-. 9. The Tribunal did not award any compensation for the loss of love and affection. Therefore on this count, a compensation of Rs. 5,000/-, in our view, would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. Thus, the claimants are entitled to an additional compensation of Rs. 45,000/-. M.A.C.A.No.1609/2007 10. Claimants in O.P.(MV)No.1101/2003 are the appellants in M.A.C.A.No.1609/2007. They claimed a compensation of Rs. 2,50,000/- for the loss caused to them on account of the death of their mother Devaki. She was aged 61 at the time of the accident and has no occupation of her own. The Tribunal awarded a total compensation of Rs. 75,000/-. The break up of the compensation awarded is as under : MACA.Nos.1559, 1609,1955 of 2007 6 |Loss of dependency|- Rs. 60,000/-| |---|---| |Transport to hospital|- Rs. 2,000/-| |Funeral expenses|- Rs. 3,000/-| |Pain and suffering|- Rs. 10,000/-| 11. Counsel for the claimants sought enhancement of the compensation awarded for the loss of dependency, for pain and suffering endured etc. 12. The Tribunal took the monthly income of the deceased as Rs. 1500/- and after deducting 1/3 for his personal expenses, took Rs. 12,000/- per annum as his contribution to his family. The Tribunal adopted a multiplier of 5 and awarded a compensation of Rs.60,000/for the loss of dependency. 13. Even an unskilled labourer will be getting Rs. 100/- per day as observed by the Supreme Court in **Laxmi Devi and others v. Mohammad Tabbar and another** ( 2008 ACJ 1488). Therefore, we feel that the monthly income of the deceased can be reasonably fixed at Rs.2,000/- per month which works out to Rs. 24,000/- per annum. After deducting 1/3 for her personal expenses, the balance amount of Rs. 18,000/- can be taken as her annual contribution to her family. The MACA.Nos.1559, 1609,1955 of 2007 7 multiplier adopted by the Tribunal as 5 is not seriously challenged. Thus calculated for the loss of dependency, claimants are entitled to a compensation of Rs. 90,000/- ( 18,000/- x 5). Thus on this count, claimants are entitled to an additional compensation of Rs. 30,000/-. 14. Learned counsel points out that no compensation was awarded for the loss of love and affection. Claimants are major married children of the deceased. Therefore, we feel that a compensation of Rs. 7,500/- for the loss of love and affection would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. Thus, the claimants are found entitled to an additional compensation of Rs. 37,500/-. ## M.A.C.A.No.1955/2007 15. Claimants in O.P.(MV)No.1102/2003 is the appellant in M.A.C.A.No.1955/2007. He has claimed a compensation of Rs. 2 lakhs for the loss of caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries as revealed from Ext.A12, the copy of the wound certificate MACA.Nos.1559, 1609,1955 of 2007 8 issued from the hospital. Type I open fracture medial condyle left humerus. Fracture of both bones right forearm. Type II open fracture right fibula. Fracture lateral condyle right tibia Lacerated injury over the lower jaw and pain all over the body. 16. He was admitted in the hospital on 17-09-2003 and was discharged on 2-10-2003. Ext.A14, discharge summary shows that he was again admitted on 2-10-2003 and was discharged on 23-10-2003. Ext.A15, certificate of disability, shows that he has suffered a permanent disability of 13%. 17. The Tribunal awarded a total compensation of Rs. 75,365/-. The break up of the compensation awarded is as under : Disability - Rs. 36,000/Loss of earnings - Rs. 4,000/Transport to hospital - Rs. 750/Extra nourishment - Rs. 750/Damage to clothing - Rs. 400/Medical bills - Rs. 23,965/Bystander expenses - Rs. 2,000/- MACA.Nos.1559, 1609,1955 of 2007 9 Pain and suffering - Rs. 7,500/- 18. Counsel for the claimant sought enhancement of compensation for the disability caused, for the pain and suffering endured and for loss of earning. 19. The Tribunal took the monthly income of the claimant as Rs. 2,000/- and took the percentage of disability as 10% and took a multiplier of 15 and awarded a compensation of Rs. 36,000/- for the disability caused. 20. As the claimant was a driver by profession, we feel that his monthly income can be reasonably fixed at Rs. 3,000/-. The multiplier adopted and the percentage of disability assessed by the Tribunal are not seriously challenged. Thus calculated for the disability caused, claimant is entitled to a compensation of Rs. 54,000/- ( 10% x 3000 x 12 x 15). Thus on this count, the claimant is entitled to an additional compensation of Rs.18,000/-. 21. The Tribunal granted Rs.4,000/- for loss of earnings for 2 months @ Rs. 2,000/- per month. As we have fixed the monthly income of the claimant as Rs. 3,000/-, the claimant is entitled to a MACA.Nos.1559, 1609,1955 of 2007 10 compensation of Rs. 6,000/- for loss of earnings. Thus on this count, the claimant is entitled to an additional compensation of Rs. 2,000/-. 22. For the pain and suffering endured by the claimant, the Tribunal awarded Rs. 7,500/- which appears to be very low. Taking into consideration the nature of the injury sustained, we feel that a compensation of Rs. 10,000/- would be adequate on this count. Thus, on this count, the claimant is entitled to an additional compensation of Rs. 2,500/- . As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. Thus, the claimants are entitled to an additional compensation of Rs. 22,500/-. 23. There is another aspect in these appeals. The Tribunal awarded interest only at the rate of 6% per annum which appears to be very low. Claimants are entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. 24. In the result, the appellants/claimants in M.A.C.A.No.1559/2003 are entitled to an additional compensation of 11 MACA.Nos.1559, 1609,1955 of 2007 Rs. 45,000/-. The appellants/claimants in M.A.C.A.No.1609/2003 are entitled to an additional compensation of Rs.37,500/-. The appellant/claimant in M.A.C.A.No.1955/2003 is entitled to an additional compensation of Rs. 22,500/-. They are entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. They are also entitled to proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of the copy of this judgment. The award of the Tribunal is modified to the above extent. The Appeals are disposed of in the above terms. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** sv. In 13 of the common in paragraph judgment M.A.C.A.No.1609/2007 & connected cases dated 07/06/2010 at page 12 MACA.Nos.1559, 1609,1955 of 2007 6, in the last line, the words and figure “balance amount of Rs.18000/-” are corrected as “balance amount of Rs.16000/-”. the figure “Rs. 90,000/- ( 18,000/- x 5)” occurring in 3[rd] line of page 7 is corrected as Rs. 80,000/- ( 16,000 x 15)”, the figure “Rs.30,000/-” occurring in the last line of paragraph 13 is corrected as “Rs.20,000/-” and the figure “Rs.37,500/-” occurring in the last line of paragraph 14 is corrected as “ Rs. 27,500/-” vide order dated 01/01/2010 in I.A.2111/2010 in M.A.C.A.No.1609/2007. Sd/- Registrar ( Judicial) MACA.Nos.1559, 1609,1955 of 2007 13