IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 MACA.No. 2900 of 2009() ----------------------------------- OPMV.147/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANT/THIRD RESPONDENT IN THE OP(MV) ------------------------------------------------------------------------- THE UNITED INDIA INSURANCE CO. LTD., ATTINGAL BRANCH, REPRESENTED BY THE UNITED INDIA INSURANCE CO. LTD., OFFICE OF THE REGIONAL MANAGER, HOSPITAL ROAD, ERNAKULAM. BY ADV. SRI.M.A.GEORGE RESPONDENTS/PETITIONERS AND RESPONDENTS 1 AND 2 IN THE OP(MV) -------------------------------------------------------------------------------------------------------------- 1. MUTHU BEEVI, D/O.MEERA SAHIB, KATTUVILAKATHU PUTHEN VEEDU, PALACHIRA P.O., CHERUNNIYOOR VILLAGE (DIED). 2. SAINULABDEEN, S/O.MOHAMMED IBRAHIM, DO. DO. DO. 3. AMEERUDEEN, S/O.MOHAMMED IBRAHIM, DO. DO. DO. 4. JALALUDEEN, S/O.MOHAMMED IBRAHIM, DO. DO. DO. 5. JAMEELA BEEVI, D/O.MUTHU BEEVI, DO. DO. DO. 6. NISARUDEEN, S/O.MOHAMMED IBRAHIM 7. SHARAFUDEEN, S/O.MOHAMMED IBRAHIM MACA.No. 2900 of 2009 8. NABEESETHU BEEVI, D/O.MUTHU BEEVI, DO. DO. DO. 9. ABDUL VAHAB, S/O.KAASIM PILLAI, S.S.COTTAGE NEAR GURUNAGAPPANKAVU, ALAMCODE, ALAMCODE P.O., ATTINGAL. 10. ABOOBAKKER, S/O.ABDUL KHADER, P.V.HOUSE, NEAR PALAMKONAM MOSQUE, PERUMKULAM P.O., PALAMKONAM, ALAMCODE VILLAGE, ATTINGAL. R2 TO R8 BY ADV. SRI.GRASHIOUS KURIAKOSE. R9 BY ADV. SRI.M.DINESH. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 2900 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 26th day of November, 2010 JUDGMENT Barkath Ali, J. Appellant is the 3rd respondent Insurance Company in O.P.(MV) No.147 of 2002 on the file of the Motor Accidents Claims Tribunal, Attingal. In this appeal the appellant challenges the judgment and award of the Tribunal dated April 23, 2009 awarding a compensation of Rs.3,42,406/- for the loss caused to the claimants on account of death of one Nusaimudeen in a motor accident. The claimants are the mother, brothers and sisters of deceased Nusaimudeen who are respondents 1 to 8 in this appeal. 2. The accident happened on January 13, 2001 at about 3.30 p.m. while Nusaimudeen was travelling in an auto- rickshaw bearing registration No.KL 01 P 4831, driven by the 2nd respondent in the Original Petition, along Vadasserikonam - Cherunniyoor public road and when the auto-rickshaw reached near Achumma Mukku, it capsized and Nusaimudeen MACA 2900/2009 2 sustained serious injuries and he succumbed to the injuries sustained while undergoing in the hospital on June 15, 2001. Alleging negligence against 2nd respondent in the O.P., the claimants filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act, claiming a compensation of Rs.3 lakhs. 3. During the pendency of the O.P., first claimant (mother of the deceased) died. Other claimants are her legal heirs. The 1st respondent in the O.P., owner of the offending auto-rickshaw, field a written statement admitting the accident, but denied the liability. The 2nd respondent in the O.P., driver of the offending auto-rickshaw remained absent before the Tribunal. The 3rd respondent in the O.P., insurer of the offending auto-rickshaw filed a written statement admitting the policy and contended that the death of the deceased was not due to the injuries sustained in the accident. 4. Exts.A1 to A12 were marked on the side of the claimants. No evidence was adduced by the respondents before the Tribunal. On an appreciation of the evidence, the MACA 2900/2009 3 Tribunal found that the accident occurred due to negligence of the 2nd respondent in the O.P. and awarded a compensation of Rs.3,42,406/- with interest @ 7.5 % per annum from the date of O.P. till realization and cost of Rs.5,000/-. Respondent No.3 in the O.P., insurer of the offending auto-rickshaw, has come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal that the deceased died as a result of the injuries sustained in the accident. 5. Heard learned counsel for the Appellant Insurance Company and learned counsel for the claimants. 6. The following points arise for consideration:- 1) Whether the finding of the Tribunal that the deceased died as a result of the injuries in the accident can be sustained ? 2) Whether the compensation awarded by the Tribunal is excessive? 7. Point Nos.1 and 2:- The Tribunal found that the deceased died as a result of the injuries sustained in the accident, which is disputed by the appellant. Deceased MACA 2900/2009 4 sustained very serious injuries, as revealed from Ext.A5 copy of the wound certificate. He died while undergoing treatment in the hospital. Ext.A9 certificate issued from S.S.N.M.M. Hospital, Varkala would show that Nusaimudeen died because of cardio pulmonary arrest complicated by diabetic mellitus infected implants. It is clear from the above that the cause of death of Nusaimudeen was due to the injuries sustained by him in the accident. 8. Next question for consideration is whether the compensation awarded is excessive. The Tribunal awarded a compensation of Rs.3,42,406/-. Break up of the compensation awarded is as under:- Transportation : Rs. 6,000/- Extra nourishment : Rs. 3,000/- Damage to clothing : Rs. 500/- Funeral expenses : Rs. 4,500/- Medical expenses : Rs. 13,406/- Bystander's expenses : Rs. 3,000/- Loss of dependency : Rs.2,72,000/- Pain and suffering : Rs. 20,000/- Loss of estate : Rs. 10,000/- Loss of love and affection : Rs. 10,000/- ------------------ Total : Rs.3,42,406 ======= MACA 2900/2009 5 9. The learned counsel for the Insurance Company argued that in the light of the principles laid down in Sarala Varma V. Delhi Transport Corporation (AIR 2009 SC 3104), ½ of the income should be deducted for his personal expenses, as the deceased was a bachelor. We are not inclined to agree. Even in Sarala Varma' case (Supra) it has been held that personal expenses to be deducted depends upon the facts and circumstances of each case. 10. Tribunal took monthly income of the deceased as Rs.2,000/- and after deducting 1/3rd for personal expenses, balance amount of Rs.16,000/- per annum was taken as his annual contribution. As there are several claimants, we are of the view that the Tribunal is perfectly justified in deducting 1/3rd for his personal expenses. 11. The deceased was working as a Plumber-cum- Electrician, aged 30 at the time of the accident, according to the claimants. As there was no documents to prove his income, we feel that the Tribunal is perfectly justified in taking his monthly income as Rs.2,000/- and after deducting 1/3rd for his MACA 2900/2009 6 personal expenses, taking Rs.16,000/- per annum as his contribution to his family and adopting a multiplier of 17 and awarding Rs.2,72,000/- for loss of dependency. 12. Taking into consideration the age of the deceased and in the circumstances of the case, we feel that compensation awarded by the Tribunal on other heads also is just and reasonable and not excessive. That being so, we find no merit in this appeal and the same is liable to be dismissed. In the result, the appeal is dismissed. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn