IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 MACA.No. 1741 of 2007(F) ----------------------- OPMV.1070/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANTS/PETITIONERS ------------------------------------ 1. K.S.SETHULAXMI, AGED 37 YEARS, W/O. LATE SURENDRAN, 2. VAISHAK B.S., AGED 19, S/O. SURENDRAN, 3. SHALUMOL B.S., (MINOR), AGED 17, D/O. LATE SURENDRAN, REPRESENTED BY NEXT FRIEND, MOTHER 1ST APPELLANT K.S.SETHULAXMI, 4. THANKAMMA, AGED 69, W/O. KUNJUNNY, BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.MANJUSHA MOHANDAS SMT.ANILA PETER RESPONDENT(S): RESPONDENTS -------------------------- 1. HARIKUTTAN PILLAI, S/O. GOPALAN PILLAI, KIZHAKKE PUTHIYAPARAMBU, PANAVALLY P.O., CHERTHALA. 2. VIJAYAN PILLAI, S/O. GOPALA PILLAI, PUTHIYAPARAMBIL HOUSE, WARD NO.13, PANAVALLY PANCHAYAT, PANAVALLY P.O., CHERTHALA. 3. NATIONAL INSURANCE COMPANY LIMITED, ALAPPUZHA. BY ADV. SMT.P.F.ROSY FOR R1-2 SRI.V.M.SYAM KUMAR FOR R1-2 SRI.JOE KALLIATH FOR R.3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON 06/07/2009 DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A . NO: 1741 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th Day of July, 2009. JUDGMENT K. M. Joseph J. The appellants are the wife, two children (one of whom was a minor) and the aged mother of the deceased Surendran who succumbed to the injuries suffered in a motor vehicle accident. The accident took place on 7.11.2005. The Tribunal has awarded a total sum of Rs.3,11,800/- 2. Heard the learned counsel for the appellant and learned counsel for third respondent Insurance Company. 3. Learned counsel for the appellant would essentially raise two issues before us. Firstly, it is contented that Ext.A8 shows that the deceased was a earning much higher income. The deceased was a tailor. Ext.A10 purports to be a salary certificate. 4. Further learned counsel for the appellant would point out that Rs.2,000/- has been taken as his monthly income which is low and 1/3 has been deducted towards personal expenses of the deceased. He further submitted that more compensation should be M.A.C.A . NO: 1741 OF 2007 : 2 : awarded towards pain and suffering and the deceased died 7 days after the accident. Learned counsel for the Insurance company would point out that the Ext.A10 is only a certificate showing that the past employment of the deceased. He also submit no compensation towards pain and suffering can be awarded. 5. As far as the first and most important question to be considered is, what is to be taken as the income of the deceased. The accident took place in the year 2005. Going by Ext. A10, the deceased was earning an amount between Rs.3,000/- and 5,500/-. The date of the accident is also crucial, as it was in 2005. The deceased was maintaining a family consisting himself, his wife, one minor child, one major child and also his aged mother. He appears to be a tailor. We think, we can safely fix his income at Rs.2,500/- per month. 6. After having fixed the income at Rs.2,500/- per month, next question will be, what is the amount to be deducted towards personal expenses. The deceased was maintaining a family of 5 members (including himself). Going by the judgment in Sarala Verma and others V. Delhi Transport Corporation and another (2009 ACJ 1298), we feel that the deduction should be limited to M.A.C.A . NO: 1741 OF 2007 : 3 : ¼th of the income. On the said basis, if the dependency is calculated the amount will be Rs.3,60,000/-. After providing for the amount, already awarded i.e., Rs.2,56,000/-, the appellants would be entitled Rs.1,04,000/- more. 7. As regards the question of pain and suffering is, it is held that no amount can be awarded towards pain and suffering. If that is so we have to factor the same when computing the compensation. Accordingly the appellants are allowed to entitle a net amount of Rs.89,000/- more alongwith interest at the rate of 7.5%. Accordingly, the appeal is allowed in part and the appellants are allowed to realise a sum of Rs.89,000/- more alongwith an interest at the rate of 7.5% interest from the third respondent from the date of petition till the date of realisation in the same ratio as awarded by the Tribunal. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/