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 30TH MARCH 2010 / 9TH CHAITHRA 1932 MACA.No. 651 of 2010 ------------------------------- [O.P(MV).NO.566/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM] .................... APPELLANT/3RD RESPONDENT: ----------------------------------------------- THE NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM, REPRESENTED BY ITS MANAGER. ADDRESS FOR SERVICE. V.P.K.PANICKER, MATHOOR, PETTA JUNCTION POONITHURA.P.O., KOCHI-682031. BY ADV. SRI.V.P.K.PANICKER RESPONDENTS/RESPONDENTS 1 & 2 & PETITIONERS: ------------------------------------------------------------------------------- 1. N.MANOHARAN, M.M.TRANSPORTS, WELLINGTON ISLAND, KOCHI-3. 2. K.B.SASIKUMAR, S/O. BALAKRISHNAN NAIR, UZHALAKKATTU HOUSE, WEST OF VENNIMALA TEMPLE, PUTHUPPALLY VILLAGE, KOTTAYAM DISTRICT. 3. P.K.FATIMA BEEVI, W/O. LATE ABDUL RAZAK, POOCHAMURY PARAMBU, THANGAL NAGAR, PALLURUTHY.P.O., PALLURUTHY VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. 4. T.A. RAZIYA, S/O. LATE ABDUL RAZAK, DO-DO- 5. T.A. RIYAS, S/O. LATE ABDUL RAZAK, DO-DO- 6. T.A.RASA, S/O. LATE ABDUL RAZAK, DO-DO- BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A. No. 651 of 2010 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 30th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act third respondent (Insurance Company) in O.P. (MV) No. 566 of 2005 of the Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated September 29, 2009 awarding a compensation of Rs.5,38,000/- for the loss caused to the claimants, on account of the death of one Reyshad in a motor accident. 2. The facts leading to this appeal in brief are these:- The deceased was aged 21 at the time of the accident and used to earn Rs.4,500/- per month as a vegetable and fruit merchant, according to the claimants. Claimants are the mother and unmarried sister of Reyshad. Subsequently, two other brothers of the deceased were impleaded as addl. petitioners 3 and 4. On September 29, 2004 at about 4.05 MACA 651/2010 2 p.m. while the Reyshad was walking west to east along the northern foot path of the Pashnithodu Bridge in Edacochi, he was knocked down by a container lorry bearing registration No.KL-7/C-6921. He sustained severe injuries and succumbed to the injuries sustained while undergoing treatment in the hospital. According to the claimants, the accident occurred due to the rash and negligent driving of the offending vehicle by the second respondent in the O.P. Respondents 1 to 3 in the O.P. as the owner, driver and the insurer of the offending vehicle are jointly and severely liable to pay the compensation to the claimants, who are the legal heirs and dependents of the deceased. The claimants claimed a compensation of Rs.7 lakhs. 3. Respondents 1 and 2 in the O.P., the owner and driver of the offending vehicle, remained absent and were set ex parte by the Tribunal. The third respondent Insurance Company filed a written statement, admitting the policy. 4. First claimant, mother of the deceased, was MACA 651/2010 3 examined as PW1 and Exts. A1 to A8 were marked on the side of the claimants before the Tribunal. On an appreciation of the evidence, the Tribunal awarded a compensation of Rs.5,38,000/- with interest at the rate of 8% p.a. from the date of petition till realization. The third respondent in the original petition Insurance Company has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the appellant/third respondent. We have felt that even without notice to the respondents, this appeal can be disposed of. 6. The accident as well as the fact that the deceased died as a result of the accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the second respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the compensation awarded by the Tribunal is excessive? 7. The Tribunal awarded a total compensation of MACA 651/2010 4 Rs.5,38,000/-. The break up of the compensation awarded is as under:- Loss of dependency : Rs.5,04,000/- Pain and suffering : Rs.10,000/- Funeral expenses : Rs.5,000/- and transportation expenses. Transportation : Rs.5,000/- Loss of estate : Rs.5,000/- Loss of love and affection : Rs.9,000/- ------------------ Rs.5,38,000/- ======== 8. The learned counsel for the appellant argued that the Tribunal without any documents took the monthly income of the deceased as Rs.4,500/-, which is on the higher side, and that the Tribunal ought to have deducted 50% towards personal expenses to the deceased, as he was a bachelor. It is also argued that the Tribunal awarded interest at 8% p.a., which is excessive. 9. We find no force in the above contention of the learned counsel or the appellant. PW1, mother of the deceased, testified that the deceased was conducting vegetable and fruits business. In Ext.A4 inquest report it is MACA 651/2010 5 stated that he was conducting fruits business. Therefore, the Tribunal is perfectly justified in holding that the deceased was a vegetable and fruits merchant and fixing his monthly income as Rs.4,500/-. 10. As regards deduction of 1/3rd for the personal expenses of the deceased, we find no reason to disturb the same. The first claimant, mother of the deceased, was aged 44 at the time of the accident and second claimant is the unmarried sister of the deceased. That being so, the Tribunal is justified in deducting 1/3rd of the income towards the personal expenses of the deceased. Therefore, we are of the view that the Tribunal is perfectly justified in taking the monthly income of the deceased as Rs.4,500/- and deducting 1/3rd for his personal expenses and taking Rs.3,000/- p.m. as his contribution to the family and awarding Rs.5,04,000/- towards loss of dependency. That being so, we hold that the compensation for loss of dependency awarded by the Tribunal is not excessive. The compensation awarded under other heads by the Tribunal MACA 651/2010 6 also appears to be just and reasonable. Therefore, we are not disturbing the same. 11. For all these reasons, we find no merit in the appeal and the same is liable to be dismissed. 12. In the result, the appeal is dismissed. The parties shall bear their own costs. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn