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 17TH MAY 2010 / 27TH VAISAKHA 1932 MACA.No. 335 of 2006(A) ----------------------- OPMV.731/1995 of IST ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE .................... APPELLANT(S): PETITIONERS 1 AND 2 --------------------------------- 1. G.K.SREELATHA, AGED 31 YEARS, W/O.LATE G.K.SATHIAN, GRAMATHIL KIZHAKKE PURAKKAL HOUSE, MALAPPURAM DISTRICT. 2. G.K.KEERTHANA, 9 YEARS, D/O. LATE G.K.SATHIAN, MINOR, REP. BY THE 1ST PETITIONER HER NATURAL GUARDIAN AND MOTHER, GRAMATHIL KIZHAKKE PURAKKAL HOUSE, MALAPPURAM DISTRICT. BY ADV. SRI.ASOK M.CHERIAN RESPONDENT(S): 3RD PETITIONER AND RESPONDENTS --------------------------------------------- 1. DR.K.G.ALEXANDER, M.D., AGE NOT KNOWN, BABY MEMORIAL HOSPITAL, INDIRA GANDHI ROAD, CALICUT. 2. V.SASI, 24 YEARS, S/O.POCKEN V., VENGARAMMAL HOUSE, VELAM AMSOM, BADAGARA TALUK P.O.VELAM, KOZHIKODE.(DELETED) (THE NAME OF THE 2ND RESPONDENT IS DELETED FROM PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 9.12.2009 IN I.A.3700/09.) 3. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO LTD., BRANCH OFFICE, TRIPURI BUILDINGS, EAST NADAKKAVU, CALICUT-11. 4. G.K.MADHAVI, AGD 65 YEARS, W/O.LATE G.K.KUNHIKUTTAN, GRAMATHIL KIZHAKKE PURAKKAL HOUSE, MALAPPURAM DISTRICT(LEGAL REPRESENTATIVES OF DECEASED 4TH RESPONDENT) 5. G.K.PUSHPADASAN, AGED 53 YEARS, GRAMATHIL KIZHAKKE PURAKKAL HOUSE, VELIYAMKODE AMSOM GRAMAM DESOM OF PONNANI TALUK. 6. G.K.SOUDAMINI, AGED 50 YEARS, DO.DO. VELIYANKODE AMSOM GRAMAM DESOM OF PONNANI TALUK. 7. G.K.DAYANANDAN, 48 YEARS, DO.DO. VELIYAMKODE AMSOM GRAMAM DESOM OF PONNANI TALUK. ADV. SRI.S.MAMMU FOR R3 SRI.M.ASOKAN FOR R1 SRI.DEVAPRASANTH.P.J. FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 335 of 2006 ------------------------------------------------------ Dated: MAY 17, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 731/1995 of the Motor Accidents Claims Tribunal, Kozhikode challenges the judgment and award of the Tribunal dated October 13, 2005 awarding a compensation of Rs.1,93,000/- for the loss caused to the claimants on account of the death of deceased Sathian in a motor accident. 2. The facts leading to this appeal in brief are these: Deceased Sathian was aged 30 at the time of the accident and used to earn Rs.4000/- per month, according to the claimants. The claimants are his wife, minor daughter and mother. Subsequently his brothers and sister were impleaded as respondents 4 to 6. On December 24, 1994 at about 8.30 p.m. deceased Sathian was walking along the Panniankara - Thiruvannur road and when he reached at Kottaram, an ambulance tempo van bearing registration No.KL 11/A-3760 belonging to the Baby Memorial Hospital, Kozhikode, came from behind and knocked him down. He sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment at the Medical College Hospital, Kozhikode. According to the claimants, the accident M.A.C.A. 335 of 2006 2 occurred due to the rash and negligent driving of the tempo van by the 2nd respondent. Respondent No.1 as the owner, respondent No.2 as the driver and respondent No.3 as the insurer of the offending tempo van are jointly and severally liable to pay compensation to the claimants, who are the legal heirs and dependents of the deceased. The claimants claimed a compensation of Rs.7 lakhs. 3. Respondent No.1, owner of the offending vehicle, filed a written statement admitting the accident, but contending that there was no negligence on the part of the 2nd respondent. Respondent No.2 remained absent. Respondent No.3, insurer of the offending tempo van, filed a written statement admitting the policy. 4. Exts.A1 to A4 were marked on the side of the claimants. On the side of the contesting 3rd respondent, Ext.B1 copy of the driving licence was marked. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence on the part of the 2nd respondent and awarded a compensation of Rs.1,93,000/-. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard counsel for the claimants and the counsel for the 3rd respondent. 6. The accident is not disputed. The finding of the Tribunal that M.A.C.A. 335 of 2006 3 the accident occurred due to the negligence on the part of the 2nd respondent is not challenged in this appeal. Therefore the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation. 7. The Tribunal awarded a total compensation of Rs.1,93,000/-. The break up of the compensation awarded is as under:- Loss of earning - Rs.1,70,000/- funeral expenses - 3,000/- Loss of consortium - 10,000/- loss of estate - 5,000/- pain and suffering - 5,000/- 8. Counsel for the claimant sought enhancement of the compensation for the loss of dependency and for pain and suffering. He pointed out that no compensation was awarded for loss of love and affection. We find merit in the above contention. The Tribunal took the income of the deceased as Rs.15,000/- per annum and deducting 1/3rd for his personal expenses and adopting a multiplier of 17, awarded Rs.1,70,000/- for the loss of dependency. Taking into consideration the fact that the deceased was aged only 30 and according to the claimants he was a carpenter, we feel that his monthly income can be reasonably fixed at Rs.2500/-, which works out to Rs.30,000/- per annum. After deducting 1/3rd for his personal M.A.C.A. 335 of 2006 4 expenses, his contribution to the family comes out to Rs.20,000/- per annum. The multiplier adopted by the Tribunal as 17 is not seriously challenged. Thus for the loss of dependency the claimants are entitled to a compensation of Rs.3,40,000/-. Therefore on this count the claimants are entitled to an additional compensation of Rs.1,70,000/-. 9. For the pain and suffering endured by the deceased, the Tribunal awarded a compensation of Rs.5,000/-. The accident occurred at 8.30 a.m. and the deceased died only at 12 °' clock at night on that day. Therefore for the pain and suffering endured by the deceased, we feel that a compensation of Rs.10,000/- would be reasonable. 10. The Tribunal did not award any amount for loss of love and affection. The 1st claimant, the widow, was aged only 20 at the time of the accident and the 2nd claimant child was aged only four months. Therefore for the loss of love and affection, we feel that a compensation of Rs.10,000/- will be reasonable. 11. Thus the claimants are entitled to an additional compensation of Rs.1,85,000/-. They are entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The 3rd respondent being the insurer of the offending vehicle M.A.C.A. 335 of 2006 5 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 mt/-