IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 MACA.NO. 640 OF 2006() ------------------------------------ OPMV.675/1995 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): APPELLANTS/PETITIONERS: --------------------------------------------------------------- 1. SANTHA, W/O. KOLEDATH NARAYANAN 2. PRADEESH, S/O. KOLEDATH NARAYANAN 3. SHEEJA, D/O. KOLEDATH NARAYANAN 4. SHEEBA, D/O.KOLEDATH NARAYANAN ALL ARE RESIDING AT OLLUKKARA VILLAGE, THRISSUR. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SRI.JIBU P THOMAS RESPONDENT(S) - RESPONDENTS: --------------------------------------------- 1. K. RAJU, S/O. KALICHETTIYAR, F.A.C.M.S. MILL ROAD, POLLACHI. 2. THE ORIENTAL INSURANCE COMPANY LIMITED POLLACHI. 3. P.M. ABDUL KAREEM, SO. MUHAMMED, RESIDING AT PUTHIYAVEETTIL HOUSE, P.O. CHERPPU, THRISSUR. 4. THE NATIONAL INSURANCE COMPANY LIMITED MAIN BRANCH, IRINJALAKUDA. ADV. SRI.MATHEWS JACOB (SR.) FOR R2 SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A. No.640 of 2006 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of November, 2008 J U D G M E N T ---------------------- Thomas P. Joseph, J. Appellants are the legal heirs of the deceased. Deceased suffered fatal injuries in a motor accident on 31.5.1994 at the age of 51. He was driving a tempo van. Lorry driven by the first respondent and insured with the second respondent hit the tempo van causing fatal injuries to the deceased. Respondents 3 and 4 are the owner and insurer of the tempo van which the deceased was driving. Appellants, widow, children and mother of the deceased claimed Rs.3,63,604/- as compensation. Tribunal found that the accident occurred due to the rashness and negligence of the first respondent and awarded Rs.1,80,800/- with interest at the rate of 9% as compensation to be realised from respondents 1 and 2 and directed the second respondent to deposit the said amount in the Tribunal with interest at the rate of 9% per annum. Claiming enhanced compensation, appellants have preferred this appeal. 2. Heard counsel for appellants and contesting respondent. 3. Point for consideration is whether appellants are entitled to get enhanced compensation. M.A.C.A. No.640 of 2006 -: 2 :- 4. Perused relevant records. 5. The Point: Appellants claimed that deceased was working as a mechanic in M/s. Popular Automobiles. In the application for compensation, income of the deceased was shown as Rs.2,000/-. According to the appellants, application was amended to state the monthly income of the deceased as Rs.3,438.20. Appellants produced Exhibit A9, certificate allegedly issued by the employer stating that the monthly income of the deceased was Rs.3,438.20. Exhibit A10 is the driving licence of the deceased. Contesting respondents proved Exhibit B2, copy of application, preferred by the appellants before the Workmen's Compensation Commissioner claiming compensation for the death of the deceased. That application was dismissed as not pressed. But in that application appellants stated the monthly income of the deceased as Rs.1,600/-. Tribunal observed that Exhibit A9 is not properly proved and fixed the monthly income of the deceased as Rs.1,600/-. Deducting 1/3rd towards personal expenses, compensation was awarded for loss of dependency and contribution taking 11 as the multiplier. Learned counsel for appellants contended that the Tribunal ought to have accepted Exhibit A9, fixed monthly income as M.A.C.A. No.640 of 2006 -: 3 :- Rs.3,438.20 and awarded compensation for loss of dependency and contribution accordingly. Counsel for the contesting respondent contended that monthly income was rightly fixed based on Exhibit B2. 6. It is true that Exhibit A9 is not proved by examining the employer who is said to have issued the same. Tribunal also noticed that while according to the appellants the deceased was working as a mechanic in M/s. Popular Automobiles, Exhibit A9 is issued by a different person. It is also true that the monthly income stated in Exhibit B2 is only Rs.1,600/-. But it has to be borne in mind that the claim regarding monthly in Exhibit B2 was not made by the deceased himself. Possibly, appellants stated the monthly income in Exhibit B2 based on some information they had concerning the monthly income of the deceased which later, they realised was not correct and accordingly the statement in the application was got amended. Therefore, it is not just or proper to find fault with the appellants. It is the duty of the Tribunal to award just and fair compensation. In deciding whether compensation awarded is just and fair, it is open to the Tribunal to enquire into the monthly income of the deceased. Therefore, we are not inclined to accept the contention of the M.A.C.A. No.640 of 2006 -: 4 :- contesting respondent that the Tribunal could not have gone beyond the statement in Exhibit B2 concerning monthly income. Exhibit A10 shows that the deceased was duly licensed to drive vehicles. It is admitted that at the time of accident, he was driving a tempo van. Considering the wages payable to professional drivers during the relevant time and also taking into account the fact that the deceased was aged 51 at the time of accident and was maintaining comparatively a large family, we are inclined to fix the monthly of the deceased as Rs.2,000/-. Deducting 1/3rd towards personal expenses, annual contribution to the family is Rs.16,000/-. Tribunal has correctly taken 11 as the multiplier. Thus compensation payable for loss of dependency and contribution comes to Rs.1,76,000/- (16,000x11) as against Rs.1,40,800/- awarded by the Tribunal. Additional compensation payable to the appellants on that count is Rs.35,200/-. 7. It is contended by counsel for the appellant that compensation awarded on other counts are low. But considering the fact that the accident occurred in the year 1994 and the deceased was aged 51 years, we are not inclined to accept that contention of the counsel. Thus appellants are entitled to get additional compensation of Rs.35,200/- which will carry interest at the rate of M.A.C.A. No.640 of 2006 -: 5 :- 7.5% per annum from the date of application till realisation. Resultantly, this appeal is allowed in part. Appellants are allowed to realise additional compensation of Rs.35,200/- (Rupees Thirty five thousand and two hundred only) with interest at the rate of 7.5% per annum from date of application till realisation from respondents 1 and 2, jointly and severally. Second respondent being the insurer of the vehicle is directed to deposit the same. On deposit, appellants can share the amount in the ratio fixed by the Tribunal and withdraw the same. J.B. KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv