IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C. KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 MACA.No. 1643 of 2006() ----------------------- OPMV.187/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S): PETITIONERS -------------- 1. KHAIRUNNEESA V.P. AGED 33 YEARS,W/O.LATE ASSAINAR FAISY. 2. SMT.JASEELA, AGED 15 1/2 YEARS,D/O.DECEASED,ASSAINAR FAISY 3. FATHIMA MAFARA, 14 YEARS,D/O.DECEASED ASSAINAR FAISY 4. FAREEDA FARSANA, AGED 12 YEARS, D/O.DECEASED ASSAINAR FAISY. Appellants 2 to 4 are minors and they are represented by their guardian/mother 1st appellant Khairunneesa. All are residing at Jaseela Manzil, Koonolmadu, P.O.Puthur Pallikkal, Malappuram District. BY ADV. SRI.K.M.VARGHESE RESPONDENT(S): --------------- 1. KALATHIL VELAYUDHAN NAIR, S/O.PADMANABHA KURUP, VELIPURAM AMSOM,KARINKALLAI. DESOM, P.O.FEROOK COLLEGE. 2. SRI.P.SIVARAJAN, S/O.SANKARAN, IRAKAMPURATH HOUSE, P.O.KOLAKKATTUHALIL, CHELEMBRA,MALAPPURAM DISTRICT. 3. THE UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE,COURT ROAD, P.O.MANJERI. ADV. SRI.JOHN JOSEPH VETTIKAD FOR R3 SRI.C.JOSEPH JOHNY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q. BARKATH ALI, JJ. ------------------------------------------------- M.A.C.A. 1643 of 2006 ------------------------------------------------- Dated: JULY 15, 2009 JUDGMENT Barkath Ali, J. The challenge in this appeal by the legal heirs of deceased Assainar Faizy under sec.173(1) of the Motor Vehicles Act read with Rule 396 of Kerala Motor Vehicles Rules is to the award passed by the MACT, Manjeri in OP(MV) 187/2002 dated March 6, 2006 awarding compensation to the appellants on account of the death of Assainar Faizy in a motor accident. 2. On December 2, 2000 at about 10.30 a.m. while the deceased Assainar Faizy was driving his car from Idimoozhikkal to Puthur Pallikkal, the bus bearing registration No.KRZ 309 driven by the 1st respondent in a rash and negligent manner dashed against the car causing severe injuries to Assainar Faizy. Faizy died on January 2, 2001 while undergoing treatment at P.V.S. Hospital, Ernakulam. The appellants who are the wife and children of the deceased claimed a compensation of Rs.10 lakhs on the ground that he was working as a Khasi of a mosque M.A.C.A. 1643 of 2006 2 and teacher in a Madrassa and earning not less than Rs.4500/- per month. 3. First respondent was the owner of the bus involved in the accident and the 2nd respondent was its driver at the time of the accident and the 3rd respondent was the insurer of the said vehicle. Respondents 1 and 2 remained absent and were set ex parte by the Tribunal. The 3rd respondent contested the petition contending that the accident occurred due to the negligence of the deceased and that the compensation claimed is excessive. 4. This OP was jointly tried along with OP(MV) 1162 & 1165 of 2001which were applications filed by the minor revision petitioners 2, 3 and 4 claiming compensation for the injuries sustained by them. Pws.1 to 3 were examined and Exts.A1 to A17 were marked on the side of the claimants before the lower court. No evidence was adduced by the contesting 3rd respondent. The Tribunal awarded a total compensation of Rs.4,80,300/-. Dissatisfied by the compensation awarded by the Tribunal, the claimants have filed this appeal so far as it relates to the quantum of compensation awarded by the Tribunal. 5. In this appeal Sri K.M.Varghese, learned counsel for the M.A.C.A. 1643 of 2006 3 appellants argued that the Tribunal should have awarded atleast Rs.4 lakhs towards hospital expenses and should have computed the dependency on the basis of the income of the petitioner at Rs.4500/- per month. 6. The only point which arises for consideration is whether the claimants are entitled to any further compensation. 7. The fact that the accident occurred due to the rash and negligent driving of the bus by the 2nd respondent is not disputed. The lower court awarded a compensation of Rs.1000/- towards transportation to hospital, Rs.3000/- for extra nourishment and bystander's expenses, Rs.2000/- for funeral expenses, Rs.20,000/- for pain and suffering, Rs.5000/- for loss of estate and Rs.10,000/- for loss of consortium and Rs.2,68,633/- towards medical expenses. Towards loss of dependency the lower court took the income of the deceased at Rs.16,000/- per annum and adopted a multiplier of 16 and deducted 1/3rd for his personal expenses and awarded a compensation of Rs.1,70,667/-. 8. The deceased was aged only 34 and has left behind wife and three minor girls. They were aged 28, 10½, 9 and 7 M.A.C.A. 1643 of 2006 4 respectively. The accident occurred on December 2, 2000 and he died on January 2, 2001. For about one month he was under treatment. Taking into consideration these aspects, we feel that a further compensation of Rs.5000/- for pain and suffering and another Rs.5000/- for loss of consortium would be reasonable. 9. Towards medical expenses, the claimants before the lower court produced bills Ext.A7 series amounting to Rs.4,23,730/-. The bills shown as Sl.Nos.6 to 86 were found to be false bills by the Tribunal. The mere suggestion in cross- examination of PW.1 would not show that those bills are false. No evidence is adduced on the side of the contesting 3rd respondent to show that those bills are false bills. Having regard to all these aspects and the fact that the deceased was under treatment for one month, we feel that a further compensation of Rs.50,000/- can be granted towards medical expenses. 10. Towards loss of dependency, the lower court took the income of the deceased as Rs.16000/- per annum and adopted a multiplier of 16 and after deducting 1/3rd for his personal expenses, awarded a compensation of Rs.1,70,667/-. According M.A.C.A. 1643 of 2006 5 to the claimants the deceased was working as a Khasi in a mosque and as a madrassa teacher and used to earn Rs.4500/- per annum. The claimants produced Ext.A16 salary certificate and examined PW.3, the treasurer of the mosque to prove the same. The lower court rejected Ext.A16 on the ground that the person who issued the certificate was not examined. The reasoning of the lower court to reject Ext.A16 appears to be not correct. PW.3 is the treasurer of the mosque from where the salary certificate was issued which shows that the deceased was working there as a Khasi and madrassa teacher. As regards his income, we feel that his monthly income can be reasonably fixed at Rs.2000/-. As regards adopting a multiplier of 16, there was no objection on the part of the claimants as well as the contesting 3rd respondent. Applying the said multiplier and deducting 1/3rd for the personal expenses of the deceased, the total loss of dependency works out at Rs.2,56,000/- (16000 x 16). Towards loss of dependency, the claimants are entitled to a further compensation of Rs.85,333/- rounded to Rs.86000/-. 11. Thus, the claimants are entitled to a further compensation of Rs.1,46,000/-. They are entitled to interest at M.A.C.A. 1643 of 2006 6 the rate of 6% per annum on the above amount from the date of application till the date of realisation. The 3rd respondent, insurance company, is directed to deposit the above amount within one month from this date before the lower court. Out of the further compensation awarded, the 1st petitioner mother will be entitled to Rs.20,000/- which shall be paid to her. The balance amount shall be deposited in the name of petitioners 2 to 4 being minors as fixed deposit till they attain majority in a Nationalised Bank. The 1st petitioner is entitled to withdraw the interest accrued monthly. In the result, the MACA is allowed as above. The petitioners are entitled to costs. PIUS C. KURIAKOSE, JUDGE P.Q. BARKATH ALI, JUDGE mt/-