IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 MACA.No. 610 of 2007() ---------------------- OPMV.3736/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANTS. ------------------ 1. ANNAMMA MATHEW, AGED 55 YEARS, W/O.LATE GEEVARGHESE, CHIPPY HOUSE, 50/454, NEAR THURSDAY MARKET, PONNEKKARA, MANIMALA CROSS ROAD, EDAPPALLY. 2. MINI M.VARGHESE, AGED 31 YEARS, D/O.LATE GEEVARGHESE, CHIPPY HOUSE, 50/454, NEAR THURSDAY MARKET, PONNEKKARA, MANIMALA CROSS ROAD, EDAPPALLY. 3. MAYA M.VARGHESE, AGED 30 YEARS, D/O.LATE GEEVARGHESE, CHIPPY HOUSE, 50/454, NEAR THURSDAY MARKET, PONNEKKARA, MANIMALA CROSS ROAD, EDAPPALLY. 4. MITHU M.VARGHESE, AGED 20 YEARS, D/O.LATE GEEVARGHESE, CHIPPY HOUSE, 50/454, NEAR THURSDAY MARKET, PONNEKKARA, MANIMALA CROSS ROAD, EDAPPALLY. BY ADV. SRI.ESM.KABEER RESPONDENT(S): --------------- 1. K.S.RADHAKRISHNAN, RAGAM, THOPPUMPADY, COCHIN. 2. K.C.GEORGE, KANIYARUKUDIYIL HOUSE, ARAKUNNAM P.O. 3. THE ORIENTAL INSURANCE COMPANY LTD., COCHIN-35. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ. ------------------------------- M.A.C.A.No. 610 of 2007 ------------------------------- Dated this the 14th December, 2009 J U D G M E N T Ramachandra Menon, J. The appellants are the widow and children of the deceased who succumbed to the injuries in an accident which occurred on 23.7.1998. The deceased was infact standing on the eastern side of the Indira Gandhi Road, Willingdon Island, at about 10.30 a.m., when the left rear side of the Container Carrier Lorry bearing Registration No.KL-7/N-969 owned by the first respondent, driven by the second respondent and insured by the third respondent, hit against the deceased and the rear left wheel ran over him, causing fatal injuries leading to his death occurred on the same day, which led to the claim petition preferred by the legal heirs. MACA No.610 OF 2007 2 2. It was contended that the deceased was working as a Senior Accountant in the Cochin Port Trust and that the unfortunate death had virtually thrown the claimants to the street. The claim was preferred attributing negligence solely on the driver of the lorry and thus seeking compensation from the Insurer, in turn. 3. The owner and driver of the offending vehicle did not choose to contest the matter and the claim was resisted only by the Insurer. The evidence consists of the oral testimony of PW.1, the first appellant herein and documents produced and marked as Exts.A1 to A7. Nobody was examined on the part of the Insurer, but for producing a copy of the policy as Ext.B1, despite the sanction obtained to have wider defence by filing a petition under Section 170 of the Motor Vehicles Act. 4. After going through the materials brought on record, the Tribunal held that the accident was only because of the negligence on the part of the driver of the container MACA No.610 OF 2007 3 lorry. With regard to the fixation of quantum, even though it was stated in the post mortem certificate that the deceased was aged 48 years, based on the entries in Ext.A6 (date of birth certificate), the Tribunal, held that the deceased was aged 52 years at the time of his accident. During the course of evidence, it was brought on record that the widow, PW.1, was employed in the Registration Department, though she got retired on attaining the age of superannuation, by the time the evidence was tendered. It was also brought to light that she was getting Family Pension of nearly Rs.3000/- per month, and further that two daughters had already been given in marriage and hence that the loss of dependency could be calculated only in respect of the 4th petitioner (4th appellant herein), who was also found to be a 'major' at the time of trial. 5. The deceased was stated to be a Senior Accountant in the Cochin Port Trust and by virtue of his employment as above, he was deriving a monthly income of MACA No.610 OF 2007 4 Rs.11,734/-, as revealed from the certificate issued from the Cochin Port Trust in this regard. However, while considering the extent of dependency/contribution to the family, after taking note of the separate income being derived by the widow, by virtue of her separate employment in the Registration Department and also the admitted receipt of monthly Family Pension, the Tribunal chose to reckon only Rs.3000/- as the notional monthly income. The Tribunal still reduced 'one-third' towards the probable personal expenses of the deceased, and fixed Rs.2000/- alone as his family contribution, thus, fixing the multiplicand as Rs.24,000/- per annum. Adopting the multiplier as 11, based on the age of the deceased as 52 years, the ‘loss of dependency’ was worked as Rs.2,64,000/-. The Tribunal also awarded amounts under other permissible heads, such as Rs.6000/- towards 'Transportation, carriage of dead body and funeral expenses'; Rs.10,000/- towards 'pain and sufferings'; Rs.10,000/- towards 'loss of consortium' to the first petitioner/widow; and Rs.10,000/- towards 'loss of love and MACA No.610 OF 2007 5 affection', thus granting a total compensation of Rs.3,00,000/- which was directed to be satisfied by the Insurer (since the coverage under the policy was admitted), making it clear that the amount will carry interest at the rate of 7.5 % per annum, from the date of petition till realisation, with proportionate cost. 6. The learned counsel appearing for the appellants submits that there is absolutely no reason for having restricted the proven monthly income of Rs.11,734/- to just Rs.3000/- for working out the loss of dependency. The learned counsel also asserts that the Tribunal ought to have awarded the amounts as claimed for, under other heads as well, stating that the amounts awarded are much on the lower side. 7. The learned counsel appearing for the respondent Insurance Company submits that the actual facts and figures have been analysed and appreciated by the MACA No.610 OF 2007 6 Tribunal in a very meticulous manner and that no interference is called for, particularly, in view of the fact that there is no loss of dependency in any manner, in view of admitted fact as to the alternate income available to the first petitioner/widow by way of her employment and the Family Pension being procured from the employer of the deceased, Cochin Port Trust, in respect of the services rendered in the Cochin Port Trust. 8. After weighing the materials, with reference to the rival submissions, we find that the fixation of the monthly income confining it just to Rs.3000/- is abysmally low. Taking note of the proven nature of employment, the income and such other vital particulars, we find it fit and proper, to have it re-fixed as Rs.5000/- for working out the compensation towards the loss of dependency. Reckoning the very same multiplier as adopted by the Tribunal, we find that the appellants are entitled to a total sum of Rs.4,40,000/- towards the 'loss of dependency' and after MACA No.610 OF 2007 7 giving credit to the sum of Rs.2,64,000/- already awarded by the Tribunal, the appellants are entitled to get a balance sum of Rs.1,76,000/- under this head. 9. The Tribunal has awarded only a sum of Rs.10,000/- towards the 'loss of love and affection', to the family consisting of widow and three children of the deceased. We award a further sum of Rs.10,000/- under this head as well. We find that absolutely no amount has been awarded by the Tribunal towards the 'Loss of Estate'. A sum of Rs.2500/- is also awarded in this regard. 10. In the result, the appellants are entitled to get a total sum of Rs.1,88,500/- as the balance compensation payable in respect of death occurred because of the accident, occurred on 23.7.1998. The said amount will carry interest at the rate of 7% per annum, from the date of application, till the same is satisfied. We direct the third respondent, Insurer, to deposit the said amount, as MACA No.610 OF 2007 8 expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. The appeal is allowed in part. No costs. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.