Kerala High Court
Dharman vs K.Amutha on 25 March, 2010
Bench: A.K.Basheer, P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1253 of 2008()
1. DHARMAN,S/O KESAVAN,
... Petitioner
2. PREMA W/O DHARMAN DO.......
3. DHANISH, D/O DHARMAN DO......
4. SAJITHA, D/O DHARMAN, AGED 17 MINOR,
Vs
1. K.AMUTHA,
... Respondent
2. RAVINDRA RAJA,
3. NEW INDIA ASSURANCE CO.LTD., PARIMALAM
For Petitioner :SRI.LIJU. M.P
For Respondent :SRI.THOMAS MATHEW NELLIMOOTTIL
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :25/03/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.No.1253 OF 2008
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Dated this the 25th day of March, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P.(MV)No.1105/2004 of Motor Accidents Claims Tribunal, Ottappalam challenge the judgment and award of the Tribunal dated July 18, 2007 awarding a compensation of Rs. 3,15,000/- for the loss caused to them on account of the death of deceased Shaneesh in a motor accident.
2. The facts leading to this appeal in brief are these :
Appellants/claimants are the parents, brother and sister of deceased Shaneesh. Deceased was aged 17 at the time of the accident and used to earn Rs. 4,000/- per month as a two wheeler mechanic. On July14, 2004 at about 3.30 p.m., deceased Shaneesh was riding the motor cycle bearing Reg.No.KL9F 3905 from Coimbatore to Palakkad along National Highway 47. One Shiju was pillion riding on his motor cycle. When the motor cycle reached near Chullimada Bridge at Walayar, Palakkad, a mini lorry bearing Reg.No.TN 33AB 9568 driven MACA.No.1253/08 2 by the second respondent came at a high speed on the wrong side from the opposite side and dashed against the motor cycle of the deceased. Deceased succumbed to the injuries sustained on the spot itself. According to the claimants, accident occurred due to the rash and negligent driving of the offending mini lorry by first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending mini lorry are jointly and severally liable to pay compensation to the claimants, who are the legal heirs and dependents of the deceased.
3. First respondent, the driver of the offending mini lorry remained absent and was set ex-parte by the Tribunal. The third respondent the insurer of the offending mini lorry filed a written statement admitting the policy, but contending that there was also negligence on the part of the deceased.
4. The pillion rider of the motor cycle filed O.P.(MV) No.1081/2004 before the Tribunal. These two O.Ps. were jointly tried and a common award was passed. Pws 1 and 2 were examined and Exts.A1 to A17 were marked on the side of the claimants before the Tribunal. Copy of the policy was marked as Ext.B1 on the side of the contesting third respondent. The Tribunal on an appreciation of MACA.No.1253/08 3 evidence found that the accident occurred due to the rash and negligent driving of the offending mini lorry by first respondent and awarded a compensation of Rs.3,15,000/-. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal.
5. Heard the counsel for the claimants/appellants and the counsel for the Insurance Company.
6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimants are entitled to any enhanced compensation ?
7. The Tribunal awarded a total compensation of Rs. 3,15,000/-. The break up of the amount awarded is as under :
Loss of dependency -Rs. 2,88,000/-
Loss of love and affection -Rs. 10,000/-
Transport to hospital - Rs. 3,000/-
Funeral expenses -Rs. 4,000/-
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MACA.No.1253/08 4
Total -Rs. 3,05,000/-
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8. Counsel for the claimants sought enhancement of compensation for the loss of dependency. The deceased was aged 17 at the time of the accident. Ext.A13, the School Admission Register Extract of the deceased issued from Govt.Vocational Higher Secondary School, Kanjikode shows his date of birth as April 6, 1997. The first claimant as PW1 testified that the deceased was used to earn Rs. 4,000/- per month as a two wheeler Mechanic. The lower court took his monthly income as Rs. 2,400/- which appears to be very low. In the light of the evidence given by PW1 that the deceased was working as a two wheeler mechanic, we feel that the monthly income of the deceased can be reasonably fixed at Rs. 3,000/-. After deducting 1/3 for his personal expenses, his monthly contribution to his family would be Rs.2,000/- per month which comes to Rs.24,000/- per annum. The Tribunal adopted a multiplier of 15 which is not seriously challenged. Thus calculated for the loss of dependency, the claimants are entitled to a compensation of Rs. 3,60,000/-. Therefore, on this count, claimants are entitled to an additional compensation of Rs. 72,000/-.
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9. Counsel for the claimants pointed out that no amount was awarded for loss of estate. Therefore, we feel that a compensation of Rs. 10,000/- would be reasonable for the loss of estate.
10. Thus the claimants are entitled to an additional compensation of Rs. 82,000/-. Though it is stated in the award of the Tribunal that the total compensation awarded is Rs.3,15,000/-, actually the total compensation comes to only Rs.3,05,000/-. Therefore, the impugned award of the Tribunal is corrected to that effect. They are entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent.
The Appeal is disposed of as found above.
A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv.
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