IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 MACA.No. 1246 of 2006() ----------------------- OPMV.2121/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- LALITHA JOSEPH, W/O.LATE JOSEPH PHILIP, 10/60, PHILIP VILLA, FORT COCHIN, COCHIN-1, NOW RESIDING AT THENGUMVILA PUTHENVEEDU, CHANNAPETTA.P.O, KOLLAM DISTRICT. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS/RESPONDENTS --------------- 1. ABRAHAM PHILIP, X/60, PHILIP VILLA, FORT COCHIN, COCHIN-1. 2. T.A.ANTONY, S/O.ANTONY, 15/36, SOUTH THANA. 3. THE ORIENTAL INSURANCE CO. LTD., M.G.ROAD, ERNAKULAM. 4. THANKAMMA PHILIP, 10/60, 10/60, PHILIP VILLA, FORT COCHIN, COCHIN-1. 5. INDIAN RAILWAYS, REP. BY RAILWAY BOARD CHAIRMAN, NEW DELHI. 6. UNION OF INDIA, REP. BY SECRETARY TO GOVERNMENT, MINISTRY OF RAILWAYS, NEW DELHI. ADV. SMT.SARAH SALVY FOR R1 SMT.SALLY THOMAS CHACKO FOR R4 SRI.P.T.THOMAS PERAKATH FOR R4 SMTJ.N.NISHA FOR R4 SRI.M.C.CHERIAN,SR.SC.,RAILWAYS FOR R5 & 6 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1246 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of December, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in OP(MV)2121/1998 on the file of the Motor Accidents Claims Tribunal, Ernakulam. She is the wife of deceased Joseph Philip who died in a motor accident. In this appeal she challenges the judgment and award of the Tribunal dated April 26, 2006 awarding a compensation of Rs.6,49,000/- for the loss caused to her on account of the death of deceased in that accident. 2. The accident happened on November 27, 2003 at 3.45 p.m.. The deceased was travelling in a Tata Sumo van bearing Reg.No.KL-7/R-8667 along with four other persons along Karuvatta- Sasthamuri road. When they reached at Manghuzhi Ganapathiyamkulangara Railway Level Cross on the Kayamkulam- Alappuzha Coastal Railway line which was unmanned, the Trivandrum-Howrah Express train No.6323 coming from Trivandrum rammed into the van in the unmanned level cross. The van was MACA.No.1246/2006 2 entangled and was carried away by the train for about 600 metres. The deceased sustained serious injuries and she succumbed to the injuries sustained on the spot. Alleging negligence against the driver of the van as well as on the part of the Railways, the claimants filed the OP under Sec.166 of the Motor Vehicles Act claiming a compensation of Rs.15,00,000/-. 3. The first respondent is the Union of India represented by the General Manager, Southern Railways, Chennai. Respondents 2 and 3 are the driver and Assistant Driver of the Engine of the train involved in the accident. The fourth respondent is the owner of the van and fifth respondent is its insurer. 4. All the respondents appeared before the Tribunal and filed written statements. The Railways filed a written statement admitting the accident, but attributed negligence to the driver of the van. The owner of the van filed a written statement admitting the accident, but attributed negligence on the part of the Railways. The insurer of the van filed a written statement admitting the policy of the van 5. This O.P. was tried along with other O.P.s filed by the legal MACA.No.1246/2006 3 heirs of other deceased persons and a common award was passed. Pws 1 to 7 were examined and Exts.A1 to A39 were marked on the side of the claimants before the Tribunal. RW1 and RW2 were examined and Exts.B1 to B4 were marked on the side of the contesting respondents. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the driver of the offending van and awarded a total compensation of Rs.6,49,000/- with interest at the rate of 7% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. Heard the counsel for the appellant/claimant 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 driver of the van is not challenged in this appeal. Therefore the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation. MACA.No.1246/2006 4 8. The Tribunal awarded a total compensation of Rs.6,49,000/- The break up of the compensation amount awarded is as under: Transportation - Rs. 5,000/- Pain and suffering - Rs. 5,000/- Loss of consortium - Rs. 5,000/- Loss of love and affection - Rs.10,000/- Loss of dependency - Rs.6,24,000/- 9. The Counsel for the claimants sought enhancement of the compensation awarded for the loss of dependency, for loss of consortium and for loss of love and affection. 10. The Tribunal took the monthly income of the deceased as Rs.6,000/- which works out to Rs. 72,000/- per annum. After deducting 1/3 for his personal expenses, the balance amount of Rs. 48,000/- was taken as his annual contribution to his family. The Tribunal adopted a multiplier of 13 and awarded Rs. 6,24,000/- for the loss of dependency. The deceased was aged 45 at the time of accident and was doing tea auction business in Fort Kochi. The widow as PW4 testified that deceased used to get a monthly profit of Rs. 50,000/-. Ext.X1 Sales Tax file of the deceased shows that he has an annual turn over of more than MACA.No.1246/2006 5 thirty lakhs. He used to remit Rs. 24,000/- per month to the chitty. Taking into consideration all these aspects, we feel that the monthly income of the deceased can be reasonably fixed at Rs. 15,000/- which comes to Rs. 1,80,000/- per annum. After deducting 1/3 for his personal expenses, the balance amount of Rs. 1,20,000/- can be taken as his annual contribution to his family. The Tribunal adopted a multiplier of 13 which is not seriously challenged. Thus, calculated for the loss of dependency, the claimants are entitled to a compensation of Rs. 15,60,000/- ( 1,20,000 x 13). Thus on this count, the claimant is entitled to an additional compensation of Rs.9,36,000/-. 11. The Tribunal awarded Rs. 5,000/- for loss of consortium and Rs.10,000/- for loss of love and affection which appear to be very low. Taking into consideration the age of the claimant, we feel that a compensation of Rs. 20,000/- for loss of consortium and Rs. 20,000/- for loss of love and affection would be reasonable. 12. In the result, the claimant is found entitled to an additional compensation of Rs. 9,61,000/- with interest @ 7% per annum from the date of petition till realisation and proportionate cost. The sixth MACA.No.1246/2006 6 respondent being the insurer of the offending vehicle 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 sv. In between the first and second sentences in paragraph 12 in pages 5 and 6 of the judgment, the following sentence is incorporated as per order dated 29/03/2011 in I.A.861/2011 in M.A.C.A.1246/2006. “ The enhanced compensation shall be apportioned between the claimant and 4th respondent mother of the deceased in the ratio of 95:5 as held by the Tribunal.” Sd/- Registrar ( Judicial) MACA.No.1246/2006 7