## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**WEDNESDAY, THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940**
## **MACA.No.2544 of 2009**
**AGAINST THE AWARD IN OP(MV) NO.271/2004 DATED 14.07.2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA**
## **APPELLANTS/PETITIONERS:**
**1 SUMA, AGED 36 YEARS, W/O.DECEASED AJITHKUMAR, AVINIPULLY HOUSE, P.O.LOKAMALESWARAM, KODUNGALLUR. 2 PADMAKSHY, AGED 67 YEARS M/O.DECEASED AJITH KUMAR, - DO.- -DO.BY ADVS. SMT.JEENA JOSEPH SRI.G.D.PANICKER**
## **RESPONDENTS/RESPONDENTS:**
**1 K.S.UNNIKRISHNAN, S/O.SANKARAN, KOCHARA HOUSE, P.O.KODUNGALLUR, LOKAMALESWARAM. 2 SIVAPRASAD, S/O.GOPALAN, PUTHANPURAKKAL HOUSE, P.O.KODUNGALLUR. 3 ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, MANAPPATT BUILDING, NORTH NADA, KODUNGALLUR, THRISSUR DIST.**
**BY ADVS. R3 BY SRI.GEORGE CHERIAN (SR.) R1 BY SRI.V.M.KRISHNAKUMAR**
## **OTHER PRESENT:**
**R3 BY SMT. K.S SANTHI**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.02.2019, ALONG WITH OP (MAC).118/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MACA.No.2544 of 2009 & - 2 - OP(MAC).118 of 2017**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**WEDNESDAY,THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940**
## **OP (MAC).No.118 of 2017**
**AGAINST THE ORDER IN I.A.NO.3021 OF 2010 IN OP(MV)NO.271/2004 DATED 11.01.2017, OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA.**
## **PETITIONER:**
**K.S. UNNIKRISHNAN, AGED 54 YEARS, S/O.SANKAAN, KOCHARA(H),P.O.KODUNGALLUR, LOKAMALESWARAM, TRISSUR DISTRICT.**
**BY ADV. SRI.V.M.KRISHNAKUMAR.**
## **RESPONDENT/S:**
- **1 SUMA, AGED 44 YEARS,W/O DECEASED AJITHKUMAR, AVINIPPULLY HOUSE, P.O.LOKAMALESWARAN, KODUNGALLUR, THRISSUR DISTRICT, PIN-680664.**
- **2 PRABHAKARAN (LATE), AVINIPPULLY HOUSE LOKAMALESWARAN VILLAGE, DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN-680664.**
- **3 PADMAVATHY, AVINIPULLY HOUSE, P.O.KOKAMALESWARAM, KODUNGALLUR, THRISSUR DISTRICT-689664.**
- **4 SIVAPRASAD, S/O.GOPALAN, PUTHANPURAKKAL HOUSE, P.O.KOGUNGALLUR, THRISSUR DISTRICT.PIN-680664.**
- **5 ORIENTAL INSURANCE CO.LTD., KODUNGALLUR, MANAPPAT BUILDING, NORTH NADA, KODUNGALLUR, PIN-680664.**
- **6 ANILKUMAR, S/O.LATE PRABHAKARAN, AVINIPPILLY HOUSE, CHAPPARA DESOM, PULLUT VILLAGE, KODUNGALLUR, THRISSUR DISTRICT, PIN-680664.**
**MACA.No.2544 of 2009 & - 3 - OP(MAC).118 of 2017**
**7 BEENA, D/O.LATE PRABHAKARAN, AVINIPPILLY HOUSE, CHAPPARA DESOM, PULLUT VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN-680664.**
**BY ADVS. R5 SRI.GEORGE CHERIAN (SR.) R5 SMT.K.S.SANTHI R5 SMT.LATHA SUSAN CHERIAN R1 & R3 SMT.JEENA JOSEPH R1 & R3 SRI.G.D.PANICKER SMT.V.J.SUMI LIZA**
**THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 13.02.2019, ALONG WITH MACA.2544/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**MACA.No.2544 of 2009 & - 4 - OP(MAC).118 of 2017**
## **JUDGMENT**
## **[ MACA.2544/2009, OP (MAC) 118/2017 ]**
**The appeal is from the award passed by the Motor Accidents Claims Tribunal, Irinjalakuda [for brevity "the Tribunal"], in a claim filed by the legal heirs of the deceased in an accident. The O.P.(MAC) is filed by the owner of the vehicle in which the deceased was travelling, since the liability was mulcted on the owner. Before looking at the enhancement as prayed for in the appeal, one has to look at whether there is a sustainable claim raised by the owner of the offending vehicle, to absolve himself from the liability.**
**2. Admittedly there is an insurance cover for the vehicle. The insurer was absolved from the liability since it was only an 'Act only Policy'. The claim for compensation was on the death of the pillion rider, which was alleged to have been occasioned due to the negligence of the rider of the offending vehicle. There could, hence, be no indemnification to the owner; of any compensation awarded in the claim petition.**
**MACA.No.2544 of 2009 & - 5 - OP(MAC).118 of 2017**
**3. OP(MAC) No.118 of 2017 is filed against the award as also the order passed which refused to set aside the** _**ex parte**_ **order. Admittedly notices were issued in the claim petition and the same were received by the owner and the driver of the offending vehicle. However, none appeared before the Tribunal. The award was passed on 14.07.2009. An Interlocutory Application was filed in the year 2010, seeking setting aside of the** _**ex parte**_ **award. The Tribunal considered whether the petitioner has made out a sufficient cause to set aside the** _**ex parte**_ **award. The petitioner had, before the Tribunal, stated that he was ailing from back pain and could not contact his lawyer. However, there was no medical certificate produced and, hence, the prayer was declined. In the Original Petition the owner-petitioner takes up an additional ground that he has in fact sold the vehicle. This is the ground on which he seeks setting aside of the** _**ex parte**_ **award and release from the liability as mulcted by the Tribunal. It has to be noticed that there is nothing produced in the Original Petition to show that in fact he had sold the vehicle. If there was a sale of vehicle effected, necessarily there should be a sale letter issued, the duplicate of which has to be intimated to the Registering Authority as per the procedure prescribed under**
**MACA.No.2544 of 2009 & - 6 - OP(MAC).118 of 2017**
**the Motor Vehicles Act, 1988. The same has not been done. There is nothing produced in the Original Petition to evidence such transfer having been effected. The petitioner also does not have a contention as to any specific person to whom the vehicle was sold. In such circumstances, this Court does not find any reason to interfere with the rejection of the Interlocutory Application by the Tribunal nor can the award be interfered with on that ground.**
**4. Considering the appeal, it has to be noticed that the accident occurred on 21.11.2003 when the deceased was riding pillion in a motor bike ridden by the 2[nd] respondent and owned by the 1[st] respondent. The aspect of negligence was not contested either by the owner of the vehicle or the driver of the vehicle. Hence, negligence was found on the rider of the motor bike. The legal heirs asserted before the Tribunal that the deceased was a Mechanic, aged 36 years, having a monthly income of Rs.2,000/-. Though there was no evidence adduced regarding the job or income, the Tribunal adopted the monthly income at Rs.2,000/-. The learned Counsel for the appellants submitted that the income adopted is very low. However, the Tribunal itself has noticed that, this was the income claimed in the application. I have examined the**
**MACA.No.2544 of 2009 & - 7 - OP(MAC).118 of 2017**
**application, which shows the income claimed to be Rs.2,000/- per month. Hence, there could be no interference caused to that. However, considering the age of the deceased, there could be an addition made of 40% to the income and 1/3[rd] reduced for personal expenses. For computing the income, the following formulae is taken: Rs.2,000 + 40% = 2,800 x 2/3 = Rs.1,866/-; rounded off to Rs.1,900/-. Hence, the income to be adopted for calculating the loss of dependency would be Rs.1,900/-. The deceased was in the hospital for 20 days.**
**5. Accordingly, the following enhancement is granted, as per** _**National Insurance Company Ltd**_ **.** _**v**_ **.** _**Pranay Sethi and Others**_ **[** _**2017 (5) KHC 350**_ **]:**
|**Sl.**<br>**No.**|**Head of Claim**|**Amount awarded**<br>**by the**<br>**Tribunal**<br>`|**Total amount**<br>**after**<br>**enhancement in**<br>**appeal**<br>`|
|---|---|---|---|
|**1**|**Future dependency**|**256000**<br>**[2000x2/3x12x16]**|**364800**<br>**[1900x12x16]**|
|**2**|**Loss of love and**<br>**affection**|**10000**|**40000**|
|**3**|**Loss of consortium**|**10000**|**40000**|
|**4**|**Pain and suffering**|**5000**|**10000**|
|**5**|**Funeral expenses**|**3000**|**15000**|
|**6**|**Loss of estate**|**Nil**|**15000**|
||**Total**||**484800**|
**MACA.No.2544 of 2009 & - 8 - OP(MAC).118 of 2017**
**6. The amounts awarded as above, after deducting what has already been paid, shall be paid within two months from the date of receipt of a certified copy of this judgment with interest from the date of application and costs, if any, as awarded by the Tribunal.**
**The O.P.(MAC) would stand dismissed and the M.A.C.A. would stand allowed as indicated above, without any order as to costs in the appeal.**
**Sd/-**
**K.VINOD CHANDRAN**
**JUDGE**
**MACA.No.2544 of 2009 & - 9 - OP(MAC).118 of 2017**
## **APPENDIX OF OP (MAC) 118/2017**
## **PETITIONER'S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF THE AWARD OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA IN O.P.(MV)NO.271/2004 DATED 14.07.2009 EXHIBIT P2 TRUE COPY OF THE I.A.3020/2010 IN OP(MV)NO.271/2004. EXHIBIT P3 TRUE COPY OF I.A.NO.3021/2010 IN OP(MV)NO.271/2004 EXHIBIT P4 TRUE COPY OF THE ORDER IN I.A.NO.3021/2010 IN OP(MV)NO.271/2004 DATED 11.01.2017.**
**Vku/-**
**[ true copy ]**
