M.A.C.A.No.2504 of 2009

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938 MACA.No. 2504 of 2009 ( ) -------------------------AGAINST THE AWARD IN O.P(M.V)NO.725/2004 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR DATED 24-04-2009 APPELLANTS/PETITIONER 1 TO 3 IN OPMV: ----------------------------------------------- ## 1. P.M.SAIDALI, S/O. MOHAMMED PUZHITHARA HOUSE, MADRASA LANE, ALUVA-1. 2. ZAINABA, W/O. SAIDALI, PUZHITHARA HOUSE, MADRASA LANE, ALUVA-1. 3. SHARINA.P.S., S/O. SAIDALI, PUZHITHARA HOUSE, MADRASA LANE, ALUVA-1. BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH ## RESPONDENTS/RESPONDENTS: ----------------------------------- 1. RAVINDRAN, S/O. NARAYANAN, PANAMKODATHIL HOUSE, KORATTY, THRISSUR DISTRICT. 2. RUBAN K.C., S/O. CHACKO, KIZHUPILLY HOUSE, VAZHAKKALA, KAKKANAD ERNAKULAM. 3. NATIONAL INSURANCE CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, MALIYEKKAL BUILDING, MAIN ROAD, IRINJALAKUDA. 4. LONAPPAN, KAREDAN HOUSE, MELOOR.P.O. THRISSUR DISTRICT. R3 BY ADV. SRI.JOE KALLIATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** -----------------------------------M.A.C.A.No.2504 of 2009 ------------------------------------Dated 7[th] November, 2016 ## **JUDGMENT** ## **Jyothindranath, J.** This appeal is preferred by the claimants against the award in O.P.(M.V)No.725 of 2004. The grievance of the appellants is that the above said claim petition was dismissed by the Tribunal saying that the involvement of the vehicle, its owner, driver and the insurer against whom the claim preferred was not proved. The facts necessary for the disposal of this appeal are as follows: Deceased Shameer was travelling in a Santro Car bearing Reg.No.KL-7/AK 5800 from south to north direction through the Thrissur - Palakkad Nelliyampathi route. While so, it is alleged that a jeep bearing Reg.No.KLM 9878 entered from a pocket road and hit against the above referred Santro Car and in that accident Shameer as well as his co-passengers sustained grievous injuries. Shameer succumbed to the injuries. A claim petition was moved before the Motor Accidents Claims Tribunal, Perumbavoor as O.P.(M.V)No.725 of 2004. After taking evidence, the said claim petition was dismissed by the Tribunal. M.A.C.A.No.2504/2009 2 2. When the appeal came up for admission, the learned counsel appearing for the appellants submitted before us that in that very same accident, other co-passengers also sustained injuries. They moved claim petitions before the Motor Accidents Claims Tribunal, Thrissur as O.P.(M.V)Nos.229, 230 & 232 of 2004. All the above said claim petitions were tried jointly by the Tribunal and disposed of by a common award dated 17.5.2012. In the said trial, it was found by the said Tribunal that the accident occurred due to the negligence of the driver of the Jeep bearing Reg.No.KLM 9878 and fastened the liability upon the driver of the said vehicle and made liable the owner as well as the insurer. The said award now became final. A certified copy of the said award is produced before this Court to show that the issue has been now determined finally and a deviation from the same cannot be possible or the insurance company cannot now contest that the accident occurred not due to the negligence of the driver of the Jeep. 3. We have heard Adv.Sri.Joe Kalliath, the learned counsel appearing for the Insurance Company. The learned counsel submitted before us that, it is true that, the above referred claim petitions were M.A.C.A.No.2504/2009 3 awarded and directed the insurance company to pay compensation to the claimants therein. The submission of the learned counsel for the insurance company is that the Tribunal considered the evidence available therein and came to a conclusion. In this case, the Tribunal rightly found that there is no material to show that the accident occurred due to the negligence of the driver of the Jeep. Under such circumstances, an interference is not warranted. 4. After hearing the learned counsel, we perused the award referred above. It is found that the above referred award in O.P.(M.V) Nos.229, 230 and 232 of 2004 is seen produced as Annexure-I along with the appeal. The produced documents are certified copies. The genuineness of the said certified copies are not under dispute. There is no case for the insurance company to the effect that they have preferred any appeal challenging the above said award. Under such circumstances, it can be seen that the said award now became final and the issue decided therein regarding the accident also can be treated as became final. If that is so, there is force in the submission of the learned counsel for the appellants to the effect that as the issue has been decided the insurance company cannot now take a stand deviating M.A.C.A.No.2504/2009 4 from the same. Thus, accepting the submission of the learned counsel for the appellants, it is found that the accident occurred due to the negligence of the driver of the jeep bearing Reg.No.KLM 9878. Thus, the corollary is that the finding of the Tribunal to the effect that there is no evidence that the accident occurred due to the negligence of the above said vehicle is hereby vacated and further found that the insurance company that is, the 3[rd] respondent is liable to pay the compensation. 5. Now, the next aspect to be considered in this appeal is whether a remand for assessment of the compensation is warranted. Surely, the Tribunal has not assessed the compensation. It is apparent and evident that the accident occurred on 4.11.2003. Now, we are in 2016. If the matter is remanded back for an assessment of the compensation, naturally, it will take another 10 years for a final disposal. Under such circumstances, we feel that it will be only just and proper to assess the compensation in this case as it is a death case. The 1[st] and 2[nd] appellants were, at that point of time itself, aged 56 and 44 years. Naturally, now, the parents of the deceased will be aged 69 years as well as 57 years respectively. Under such circumstances, we M.A.C.A.No.2504/2009 5 are inclined to make the assessment of the compensation here itself. 6. In this case, the deceased was aged 26 years at the time of accident. The case of the appellants is that he was a bachelor and a Diploma holder in Computer Graphics. It is brought to our notice that Exts.A8 to A13 are the documents produced to substantiate their claim. The claim of the appellants is that at that point of time, the deceased was engaged in the production of a VCD/Album. Surely, the appellants produced documents. But, there is nothing to show that what was his actual income derived from the said business. It is the case of the appellants that the deceased was also working as a Security Guard. But, no reliable document was produced to substantiate that claim also. Under such circumstances, keeping in mind that the accident occurred in the year 2003, we feel that it will be only just and proper to consider the monthly income as ₹ 5,000/- for calculation purpose. While considering the said income, we took guidance from the decision in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited ((2011) 13 SCC 236)**_ where the income of a coolie was considered as 4,500/- that also in an accident₹ occurred in 2004. In this case, the accident occurred in 2003. But, it is M.A.C.A.No.2504/2009 6 a fact that the deceased was a qualified Diploma holder. Thus, the monthly income is considered as 5,000/-. Considering the age of the₹ deceased a multiplier of `17' is adopted and as he was a bachelor, towards personal expenditure 50% is deducted from the monthly income. Thus, by assessing the compensation towards `loss of dependency', the appellants will be entitled for a sum of 5,10,000/-₹ (5000 x 12/2 x 17) . In this case, there are four claimants. They are the parents and siblings. Considering the age of the parents and also all attending circumstances, we feel that the parents can be given ₹ 20,000/- each and the siblings can be given 5,000/- each towards₹ `loss of love and affection'. Thus, on this head the appellants will be entitled for a sum of 50,000/.- Towards `funeral expenses', as no₹ other evidence was adduced, they are entitled for a sum of 25,000/-.₹ The said amount is awarded. In this case, even though there is no material to show the place of injury, we feel that a sum of 10,000/-₹ can be given towards `pain and sufferings'. The said amount is awarded. Towards `transportation expenses and other miscellaneous expenses' a consolidated amount of 5,000/- is awarded.₹ ## 7. Thus, the appellants will be entitled for a total M.A.C.A.No.2504/2009 7 compensation of 6,00,000/-. The said compensation will bear interest₹ at the rate of 8% per annum from the date of petition till realisation. The said amount shall be apportioned as follows: A lumpsum of 1,00,000/- each shall be given to appellants₹ 3 and 4. The balance amount shall be shared equally in between appellants 1 and 2, who are the parents of the deceased. There will be no order as to costs. The insurance company shall deposit the amount within three months from the date of receipt of a copy of this judgment. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS // true copy // P.S. To Judge M.A.C.A.No.2504/2009 8 The following corrections are made in the judgment dated 07/11/2016 in M.A.C.A.No.2504/2009, vide order dated 06/04/2017 in I.A.No.1271/2017 in M.A.C.A.No.2504/2009. - (i) In paragraph 6 of the judgment in page No.6, on the 8[th] line from top to bottom, after the sentence “They are the parents and siblings”, the following sentence is incorporated “Since one of the siblings died during the pendency of the petition, only the remaining sibling and the parents alone are entitled for compensation.” - (ii) On the 11[th] line at page 6, deleting the words “....... the siblings can be given 5,000/- each towards `loss of₹ love and affection” the following words are inserted. - “................. the sibling can be given 10,000/- towards₹ `loss of love and affection”. and - (iii) In the last paragraph, deleting the sentence “A lumpsum of 1,00,000/- each shall be given to appellants 3 and₹ 4” the following sentence is inserted. - “A lumpsum of 1,00,000/- shall be given to appellant₹ No.3.” Sd/Registrar (Judicial)