IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 MACA.No. 1128 of 2010() ----------------------- OPMV.64/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PARAVUR .................... APPELLANT(S): CLAIMANTS -------------- 1. P.MASILAMANI,S/O.PONNAIAH THEVAR. KOCHUTHARA HOUSE,VELIYATHAMPARAMBU,NARARAMBALAM, KOCHI TALUK, EKM DIST. 2. BHAGYANATHAN,S/O.MASILAMANI. DO. 3. ANITHA,D/O.MASILAMANI.DO. 4. DHANESH MURALI,S/O.MASILAMANI.DO. BY ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.N.T.NANDAKUMAR (PARAVUR) RESPONDENT(S): RESPONDENTS --------------- 1. K.T.JOHNY,S/O.THOMAS,KANAPPILLY HOUSE, NARAKKAL PO.KOCHI TALUK, EKM DIST. PIN 682 505. 2. A.K.SATHAN,S/O.KANDARI,ALUNGATHARA HOUSE NAYRARMBALAM PO, ERNAKULAM DIST.PIN 682 505 3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE. N.PARAVUR PO, EKM DIST. ADV. SRI.P.V.JYOTHI PRASAD FOR R-3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1128 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of November, 2010 JUDGMENT Barkath Ali, J. Appellants are the claimants 2 to 5 in O.P.(MV)No.64/2005 on the file of Motor Accidents Claims Tribunal, North Paravur. They are the husband and minor children of deceased first claimant. In this appeal the appellants challenge the judgment and award of the Tribunal dated January 3, 2010 in O.P.(MV)No.64/2005 on the file of Motor Accidents Claims Tribunal, North Paravur awarding a compensation of Rs.1,97,000/- for the loss caused to the deceased first claimant for the injury sustained by him in a motor accident. 2. Deceased first claimant in the O.P. sustained the following injuries in that motor accident that occurred on October 23, 2004 : Traumatic paraplegia, fracture L1, multiple fracture ribs, fracture left femur. 3. The accident happened while deceased first claimant was standing on the side of Vypeen - Munambam road, she was knocked down by the tempo bearing Reg.No.KL 7/K - 2289 driven by the MACA.No.1128/2010 2 second respondent. She died on September 28, 2005 due to the injuries sustained in the accident and her legal representatives were impleaded in the O.P. Alleging negligence against the second respondent, deceased first claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 8,00,000/-. 4. Respondents 1 and 2, the owner and the driver of the offending tempo remained absent before the Tribunal. The third respondent, the insurer of the offending tempo filed a written statement admitting the policy. 5. PW1 was examined and Exts.A1 to A5 series were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending tempo by second respondent and awarded a compensation of Rs. 1,97,000/- with interest @ 7% per annum from the date of petition till realisation. The additional claimants in the O.P. have now come up in appeal MACA.No.1128/2010 3 challenging the quantum of compensation awarded by the Tribunal. 6. Heard the counsel for the appellants/claimants and the counsel for the Insurance Company. 7. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the second 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. 8. The break up of the compensation awarded by the Tribunal is as under : Pain and suffering - Rs. 25,000/- Loss of earnings - Rs. 12,000/- Treatment & transport exp. - Rs. 73,000/- Disability - Rs. 72,000/- Difficulties, inconvenience and discomfort - Rs. 15,000/- 9. Counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. 10. The Tribunal took the monthly income of the deceased first claimant as Rs.2,000/-. As she was paraplegic, her percentage of disability was taken as 100% and as she died 9 months after the date of MACA.No.1128/2010 4 the accident, a multiplier of 3 was taken and awarded Rs. 72,000/- for the disability caused. Taking into account the fact that she was a lady aged 27, we feel that her monthly income can be reasonably fixed at Rs. 3,000/- . It is not disputed that as the result of the injuries sustained, she died 9 months after the accident during the pendency of the O.P. Therefore, we hold that the claimants are entitled to compensation for loss of dependency instead of disability caused to the deceased first claimant. After deducting 1/3 for her personal expenses, the balance amount of Rs. 2,000/- can be taken as her monthly contribution to her family. As she was aged 27 at the time of the accident, a multiplier of 17 would be reasonable. Thus calculated for loss of dependency, the claimants are entitled to a compensation of Rs.4,08,000/- ( Rs.24,000 x 17) instead of Rs. 72,000/- granted by the Tribunal towards disability caused. 11. The Tribunal awarded Rs. 25,000/- for pain and suffering endured by the deceased claimant. As she was totally bed ridden and died 9 months after the accident, we feel that a compensation of Rs.35,000/- would be reasonable for the pain and suffering endured. MACA.No.1128/2010 5 12. As the claimant died, additional claimants are entitled to compensation for loss of love and affection. Taking into consideration their age, we feel that a compensation of Rs. 50,000/- would be reasonable for loss of love and affection. 13. Additional second claimant, the husband, is entitled to a compensation for loss of consortium. In the circumstances of the case, we feel that a compensation of Rs. 20,000/- would be reasonable for loss of consortium. 14. There is another aspect in this case. The Tribunal awarded Rs.12,000/- for loss of earnings for six months. As we have ordered compensation for loss of dependency, claimants are not entitled for the said amount awarded for the loss of earnings. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 15. In the result, the claimants are found entitled to an additional compensation of Rs. 4,04,000/- with interest @ 7% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall MACA.No.1128/2010 6 deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. As regards the apportionment of the compensation, the Tribunal awarded 40% of the compensation to the second claimant husband and 20% each to the minor children, claimants 3 to 5. As claimants 3 to 5 are minors, we feel that the compensation amount already awarded and the additional compensation awarded shall be equally apportioned between claimants 2 to 5 i.e. 25% each. The entire amount due to the additional second claimant husband shall be disbursed to him. The amount due to the minors shall be deposited as ordered by the Tribunal. 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. MACA.No.1128/2010 7 MACA.No.1128/2010 8