National Insurance Company Ltd. v. Claimants (Claimants 1-8 and R1-R2), MACA No.286 of 2005

## **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 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932** **MACA.No. 286 of 2005()** **---------------------OPMV.885/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PARAVUR** **....................** ## **APPELLANT(S): APPELLANT/3RD RESPONDENT** **--------------------------------------** **NATIONAL INSURANCE COMPANY LTD., THRISSUR BRANCH OFFICE AMBIKA ARCADE, M.G.ROAD, POST BOX NO.89, THRISSUR.** **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENT(S): CLAIMANTS 1 TO 8 AND R1 AND 2** **--------------------------------------------** **1. DIXON CARVALIO, S/O. KASPER, MURINGANETHU HOUSE, PERUMPILLY, NARAKKAL P.O.** **2. MANEETHA KASPER KANVALIO** - **W/O. KASPER, MURINGAMETHA HOUSE, PERUMPILLY NARAKKAL P.O.** ## **3. THOMAS ANVALIO S/O. KASPER, DO. DO.** **4. PHILOMINA FRANCIS KANVALIO W/O. FRANCIS, DO. DO.** ## **5. SEEMA VARGHESE W/O. VARGHESE, DO. DO.** ## **6. LEONS KARVALIO S/O. KASPER, DO. DO.** **7. JOSEPH DANDEN KARVALIO** - **S/O. KASPER, DO. DO.** **8. DAIJY KANVALIO S/O. KASPER, DO. DO.** **9. MR.CHANDRASEKHARAN, PARAYIL HOUSE, KARALAM, THRISSUR.** **10. RAJAN S/O. KUNJAYYAPPAN, VELLANI HOUSE, KURUMILAVU, THRISSUR.** **ADV. SRI.K.I.ABDUL RASHEED FOR R2 TO R8** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.286 OF 2005** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of November, 2010 ## **JUDGMENT** ## Barkath Ali, J. Challenge in this appeal is to the judgment and award of the Tribunal dated October 10, 2003 in O.P.(MV)No.885/2000 on the file of Motor Accidents Claims Tribunal, North Paravur awarding a compensation of Rs. 3,83,000/- for the loss caused to the claimants on account of the death of deceased first claimant in a motor accident. The appellant is the third respondent/Insurance Company in the O.P. 2. During the pendency of the O.P., the first claimant died. His legal heirs were impleaded as supplemental petitioners 2 to 8 in the O.P. The accident happened on July 27, 2000 at about 5.45 a.m. while the deceased first claimant was riding his motor cycle bearing Reg.No.KL 7/J 5978 along Vypin-Munambam public road and when he reached near Njarakkal Hospital junction, Njarakkal, he was knocked down by the mini lorry bearing Reg.No.KL 8/C 3578 driven by the second respondent. Deceased first claimant sustained the MACA.No.286/2005 2 ## following injuries in the accident : Lacerated wound on the occipital region, right side of chin, left leg anterior aspect and abrasion on left illiac region. CT scan showed multiple contusion on the left temporal and left fronto parietal region with small subdural haematoma over the left parietal region. 3. Alleging negligence against the second respondent, the deceased first claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 7,00,000/-. During the pendency of O.P., first claimant died. Alleging that he died as a result of the injuries sustained in the accident, claimants 2 to 8 claimed compensation for the loss caused to them on account of the death of deceased first claimant. 4. Respondents 1 and 2, the owner and the driver of the offending mini lorry filed a joint written statement admitting the accident, but denied the liability. The third respondent, the insurer of the offending vehicle, filed a written statement admitting the policy, but attributed negligence to the deceased first claimant. Pws 1 to 4 were examined and Exts.A1 to A12 series were marked on the side of the claimants. No evidence was adduced by the respondents. On an MACA.No.286/2005 3 appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the second respondent, that deceased first claimant died as a result of the injuries sustained in the accident and awarded a compensation of Rs. 3,83,000/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent/ Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant-Insurance Company and the counsel for the claimants. 6. The following points arise for consideration : 1. Whether the finding of the Tribunal that the accident occurred due to the negligence of the second respondent can be sustained ? 2. Whether the first claimant died as a result of the injuries sustained in the accident ? 3. Whether the compensation awarded by the Tribunal is excessive ? 4. Whether the compensation awarded by the Tribunal is just and reasonable? If not, whether the claimants are entitled to any enhanced compensation ? 5. If so, whether enhancement of the MACA.No.286/2005 4 compensation can be granted in this appeal ? 7. The accident is not disputed. It is also not disputed that the deceased first claimant sustained the injury mentioned above in the said accident . We shall first consider whether the finding of the Tribunal that the accident was the result of rash and negligent driving of the Mini Lorry by second respondent. The counsel for appellant/Insurance Company argued that this being a head on collision between the two vehicles there was also negligence on the part of the deceased who was riding the motor cycle at that time. We are unable to agree. PW1 the brother of the deceased testified that the accident occurred due to the negligence of second respondent. Nothing was brought out in his cross examination to discredit his evidence. Further police has charged the case against first respondent. No contra evidence was adduced by the appellant/third respondent to show that there was also negligence on the part of the deceased. For all these reasons we confirm the finding of the Tribunal that the accident occurred due to the negligence of the second respondent. 8. Next question for consideration is whether the deceased died as a result of the injuries sustained in the accident. The accident MACA.No.286/2005 5 occurred on July 27, 2000 and the first claimant died on February 20, 2001. The counsel for the appellant argued that the deceased died due to renal failure as PW1, the brother of the deceased admitted that the deceased had underwent treatment for renal problems prior to the accident. We do not agree. It is true that deceased had renal problems even prior to the accident. PW2, the doctor who treated him has testified to that effect. But PW4, the then Superintendent of Women and Children Hospital, Alappuzha testified that the medicine Sporidex given to the deceased is toxic to the patients with renal complaint. PW2 has also testified that the injuries sustained by him in the accident has caused damage to the renal area of the deceased. Therefore, in our view the Tribunal is perfectly justified in coming to the conclusion that the deceased died as a result of the injuries sustained in the accident and awarding compensation for the death of deceased in the accident. 9. We shall next consider whether the compensation awarded by the Tribunal is just and reasonable and if not, whether this court can award enhancement of compensation even if there was no appeal by the claimants. The Tribunal took the monthly income of the deceased first claimant as Rs. 1500/- which appears to be very low. Further, the MACA.No.286/2005 6 Tribunal awarded Rs.30,000/- for pain and suffering endured which is quite inadequate and also no amount was awarded for loss of love and affection. We are of the view that the compensation awarded by the Tribunal is not just and reasonable. It follows that the claimant is entitled to enhancement of the compensation. 10. Counsel for the appellant/Insurance Company would argue that as the claimant has not come up in appeal challenging the quantum of compensation awarded by the Tribunal, no enhancement of compensation can be awarded in this appeal. There is no merit in the above contention. The Apex Court has held in Andhra Pradesh State Road Transport Corporation, Rep. by its General Manager and another v. M.Ramadevi and others ( 2008(3) Supreme Court Cases 379) that if the award made was inadequate and just compensation was not awarded, even if there is no appeal by the claimants, the court is empowered to enhance the amount of compensation. In the above decision, the earlier decision of the Apex Court in Nagappa v. _._ Gurudayal Singh ( 2003 (2) SCC 274) was followed 11. In the light of the principles laid down in the above decisions, in the present case, we find that as the compensation MACA.No.286/2005 7 awarded by the Tribunal is inadequate and not just compensation, enhancement of compensation can be awarded to the claimants in this appeal though there was no appeal by the claimants. 12. Next question for consideration is what is the enhanced compensation the claimants are entitled to. The Tribunal awarded a total compensation of Rs. 3,83,000/-. the break-up of the compensation awarded is as under : |Damage to clothing|- Rs. 300/-| |---|---| |Attendant's expenses|- Rs.7,000/-| |Medical expenses|- Rs.1,15,000/-| |Pain and suffering|- Rs. 30,000/-| |Loss of dependency &|| |loss of estate|- Rs.2,16,000/-| |Loss of earning|- Rs. 9,000/-| |Extra nourishment|- Rs. 5,000/-| 13. The Tribunal took the monthly income of the deceased first claimant as Rs. 1500/- and after deducting Rs. 500/- towards his personal expenses, the balance amount of Rs. 1,000/- per month was taken as his monthly contribution to his family and adopting a multiplier of 18 awarded Rs. 2,16,000/- for loss of dependency and loss of estate. The deceased first claimant was running a provision store and tailoring shop earning Rs. 6,000/- per month as testified by PW1 MACA.No.286/2005 8 his brother. He was aged only 28 at the time of the accident. Therefore, we feel that his monthly income can be reasonably fixed at Rs. 3,000/- per month. After deducting 1/3 for his personal expenses, the balance amount of Rs. 2,000/- per month can be taken as his monthly contribution to his family. The Tribunal adopted a multiplier of 18 as the deceased was aged 28 at the time of the accident. In this case, additional claimant No.2, the mother of the deceased was aged only 59 at the time of the accident. Therefore, we feel that a multiplier of 12 would be reasonable in this case. Thus calculated for the loss of dependency, the claimants are entitled to a compensation of Rs.2,88,000/- ( 24,000 x 12). Thus on this count, the claimants are entitled to an additional compensation of Rs. 72,000/-. 14. No compensation was awarded by the Tribunal for loss of love and affection. Taking into consideration the age of the claimants and the deceased, we feel that a compensation of Rs. 25,000/- would be reasonable on this count. 15. Rs. 30,000/- was awarded by the Tribunal for the pain and suffering endured by the deceased first claimant. The accident occurred on July 27, 2000 and the deceased first claimant died on MACA.No.286/2005 9 February 20, 2001. Therefore, we feel that a compensation of Rs. 50,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 16. In the result, the claimants 2 to 8 ( respondents 1 to 8 herein) are found entitled to an additional compensation of Rs. 1,17,000/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The appellant/Insurance company shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment with notice to the claimants. The appeal is disposed of as found above. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** sv. MACA.No.286/2005 10 MACA.No.286/2005 11