IN THE HIGH COURT OF KERALAAT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.

THURSDAY, THE 23RD DAY OF FEBRUARY 2017/4TH PHALGUNA, 1938

MACA.No. 2429 of 2012 ()

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AGAINST THE AWARD IN OPMV 654/2002 of M.A.C.T.,KOLLAM DATED 17-12-2007

APPELLANT(S)/PETITIONERS IN O.P.

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• 1. JANAKI, W/O. THANKAPPAN ACHARI, VAZHAYIL KIZHAKKATHIL , MEKKUMMURI, PANMANA, KARUNAGAPPALLY, KOLLAM
• 2. JAYALEKSHMI, D/O. JANAKI, VAZHAIL KZHAKKATHIL, MEKKUMMURI, PANMANA, KARUNAGAPPALLY, KOLLAM
• 3. JAYAKUMAR S/O. THANKAPPAN ACHARI, VAZHAYIL KIZHAKKATHIL , MEKKUMMURI, PANMANA, KARUNAGAPPALLY, KOLLAM
• 4. JAYASREE, D/. JANAKI, VAZHAYIL KIZHAKKATHIL , MEKKUMMURI, PANMANA, KARUNAGAPPALLY, KOLLAM

BY ADV. SRI.B.MOHANLAL

RESPONDENTS/RESPONDENTS IN O.P(M.V) -------------------------------------------------------------

• 1. P.PRASAD, S/O PURUSHAN, KAIPPALLIL, CHINGOLI P.O, HARIPAD, ALAPPUZHA DISTRICT. -690532
• 2. VISWANATHAN, S/O. GOPALAN, KULATHINTAZHIKATHU KIZHAKKATHIL, PANMANA P.O, CHAVARA, KOLLAM -691583
• 3. THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, CHINNAKKADA, KOLLAM -691001

R3 BY ADV. SRI.M.A.GEORGE R2 BY ADV. SRI.P.V.DILEEP

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

C.K.ABDUL REHIM & SHIRCY.V,JJ

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M.A.C.A.No.2429 of 2012

------------------------------------------------ Dated this the 23rd day of February, 2017

JUDGMENT

Shircy V,J.

The legal heirs/dependents of one Thankappan Achari who died in a motor accident on 10.4.2002 have filed this appeal seeking enhancement to the quantum of compensation awarded to them on his death .

2. Their case is that on 10.4.2002 at about 8 p.m, the second respondent the rider of a scooter bearing Reg. No.KL 4/2425 had driven the same in a rash and negligent manner with the deceased as the pillion rider and had met with an accident and thereby the deceased had sustained serious injuries and he succumbed to the injuries even though he was rushed to the hospital for treatment.

3. The finding of the Tribunal regarding the negligence on the part of the second respondent, the rider

of the vehicle in causing the accident is not in dispute. But the insurance company has contended that the risk of the pillion rider of the insured vehicle is not covered under the policy and hence, not liable to indemnify the insured. [Annexure A policy produced before us would show that it is 'Act only policy']. The finding of the Tribunal that pillion rider is not covered under an Act policy as additional premium has not been paid is not challenged in the appeal .Though notice was served on the 1 st and 2 nd respondent in the appeal they preferred not to appear before this court. Now the question mooted for consideration is whether just and reasonable compensation had been awarded to the appellants/ dependents of the deceased.

4. We heard the learned counsel for the appellants as well the learned counsel for the third respondent insurance company.

5. According to the learned counsel for the appellants ,the deceased was a carpenter and he was earning a monthly income of Rs.3500/-,but the Tribunal has taken his income only as Rs.3000/-.Of -course it is in the absence of proof. But we feel that it is definitely on the lower side as he was a skilled worker and the accident was in the year 2002. So his monthly income is taken as Rs.3500/- itself. The legal heirs are 4 in number. Hence 1/4 th of the monthly income is deducted for personal expenses. Hence the amount of compensation under the head of loss of dependency has to be re-fixed as follows. The multiplier adopted as 13 as the deceased was aged 48 years is correct. So in total they are entitled to get a sum of Rs.Rs.4,09,500/(3500x12x 13x 3/4) which would entitle to get a further amount of Rs.97,500/- (4,09,500- 3,12,000). For funeral expenses as well as transportation only Rs.5,000/- has been granted. We

enhance it as Rs.15,000/- which would entitle to get a further amount of Rs.10,000/-. As loss of love and affection only Rs.10,000/- has been granted. We enhance it as Rs.1 lakh which would entitle to get a further amount of Rs.90,000/-. Under the head of loss of consortium, only Rs.10,000/- has been granted which is on the lower side. So we are inclined to enhance the same as Rs.1 lakh. Therefore the appellants are entitled to get a further amount of Rs.90,000/- under that head. So in total the appellants are entitled to get a further amount of Rs.2,87,500/-. As it has come out in evidence that the the policy will not cover the risk of the pillion rider, the company is not liable to indemnify the insured. Hence the amount has to be paid by the first respondent who is the owner and the second respondent the driver of the vehicle. The appellants/dependents can recover the amount from the 1st and 2 nd respondents .

The appeal is modified and disposed of accordingly.

C.K.ABDUL REHIM JUDGE

SHIRCY.V JUDGE

smm