IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 MACA.No. 75 of 2004 --------------------- OPMV.1429/1996 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S):PETITIONERS: ----------------------------------------- 1. S. ABDUL SALAM, S/O. MUHAMMEED KUNHI HAJI, SAFSAL HOUSE, NEAR MANIKKAKKAVU ROAD, P.O. THANA, CANNANOR-12, KANNUR DISTRICT. 2. M. KAMARUNNISA, W/O. NIZAR, ZOHARA MANZIL, NEAR MISSION COMPOUND, MOLO CHOVVA, CANNANORE-6, KANNUR DISTRICT. 3. NASFIR BIN NIZAR (MINOR), S/O. LATE NIZAR, AGED 17 YEARS, THROUGH HIS MOTHER AND NEXT FRIEND M. KAMARUNNISA, W/O. LATE MISSION COMLPOUND, MOLO CHOVVA, CANNANORE-6, KANNUR DISTRICT. 4. M. FATHIMATHUL NAZLEEN (MINOR) D/O. LATE NIZAR, AGED 15 YEARS, THROUGH HER MOTHER AND NEXT FRIEND M. KAMARUNNISA, W/O. LATE NIZAR, ZOHRA MANZIL, NEFAR MISSION COMPOUND, MOLO CHOVA, CANNANORE-6, KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): RESPONDENTS: ------------------------------------------------ 1. K. BHASKARAN, S/O. CHANDRAN, MANAGING PARTNER, KOYILI HOSPITAL, TALAP, KANNUR. 2. PITTAN LAKSHMANAN, S/O. RAMAN, MUZHAPPILANGAD AMSOM DESOM, KANNUR DISTRICT. MACA.75/04 3. UNITED INDIA INSURANCE COMPANY LIMITED KANNUR. ADV. SRI.RAJESH THOMAS FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- M.A.C.A. NO. 75 OF 2004 C --------------------------------------------------- Dated this the 1st July, 2009 JUDGMENT K.M.Joseph, J. Appellants are the petitioners in a petition filed under Section 166 of the Motor Vehicles Act. One Thayath Thalakkal Nizar, while working as a Driver in a Gulf country, succumbed to injuries in a motor vehicle accident. The first appellant is the father of the deceased, the second appellant is the widow and appellants 3 and 4 are the children of the deceased Nazar. The tribunal has awarded a total sum of Rs.4,16,000/= as against the claim for Rs.25 Lakhs. Aggrieved by the quantum of compensation awarded, this Appeal has been filed. We heard the learned counsel for the appellant and also the learned counsel appearing on behalf of the third respondent Insurance Company. MACA.NO.75/04 C 2 2. Though the matter is coming up for admission and notice has already been issued and served on the respondents in the application for condonation of delay, since the insurance coverage is admitted, we feel that further notice is not necessary and hence we take up the Appeal for hearing on consent. 3. Learned counsel for the appellants would contend that the tribunal has erred in not taking 18 as the multiplier and it has erred in taking only 16 as the multiplier. He relies on a Judgment of this Court in Prasad v. RTA, Ernakulam (2005 (2) KLT 227). In view of the later decisions of the Apex Court, if the claimant is older than the deceased, the multiplier is correct. Therefore, we repel the contention. The second complaint goes to the income which has been adopted by the tribunal. According to the appellants, the tribunal has erred in taking the income as Rs.3,000/= per month. According to him, there is evidence before the tribunal warranting much higher income. The tribunal has essentially found as follows: “10. PW1's case is that her husband was employed as a Driver and was earning 1500 MACA.NO.75/04 C 3 Riyals, equivalent to Rs.14,000/= to Rs.15,000/= per month. The documents Exts.A5 and A11 cannot be attached with much weight because these document4s are not properly proved. That apart, there is no supporting evidence to show that he was sending the income as narrated in Ext.A5, to the family. If he was actually earning Rs.15,000/= per month, he must have sent a major chunk of it to PW1, his wife. The contribution of the deceased could have been proved by adducing evidence such as Bank pass-books or other documents relating to transfer of money from Qatar to India. No attempt has been made in this regard. Therefore, I am inclined to discard the evidence adduced by PW1 with regard to the earning of the deceased. However, the fact that a person who is going to the Middle East Countries for better prospects cannot be brushed aside. So, as a fair guess, it is presumed that the deceased was earning Rs.3,000/= per month.” 4. Learned counsel for the appellants would contend that the deceased was working for a long period in Gulf. The appellants have also produced Annexure A5 Salary Certificate. MACA.NO.75/04 C 4 In view of the fact that the deceased had been working for some period of time and that he was supporting a family of five members involving himself and in view of the presence of the documentary evidence also and as it would be unjust to require of the appellants to prove the Certificate by examining the employer of the deceased, we feel that we can safely fix the income at Rs.5,000/=. The accident took place in the year 1996. In view of the fact that the deceased was employed in Gulf and also the period of employment, we fix the income at Rs.5,000/= per month. 5. The next question raised by the learned counsel for the appellants is that the tribunal erred in deducting 1/3rd of the income towards the personal use of the deceased. We find that including the deceased, the family of the appellants consisted of five members. There were three adults and two minors. Going by the Judgment of the Apex Court in Smt. Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. (JT 2009 (6) SC 495), in a case where there is no specific evidence regarding contribution MACA.NO.75/04 C 5 to the family, the Court may adopt the unit method for arriving at the contribution of the deceased to his family. According to this method, two units are allotted to each adult and one unit is allotted to each minor and total number of units are determined. Then the income is divided by the total number of units. The quotient is multiplied by two to arrive at the personal living expenses of the deceased. Example is given. 6. In this case also, going by the unit system as three majors and two minors, the total number of units would be eight. If that is so, dividing the income of Rs.5,000/= by eight, we get Rs.625/=. Taking Rs.1,250/= as the portion of the income towards expenses of the deceased and also another Rs.150/= towards out of pocket expenses, the total amount which can be deducted is limited to Rs.1400/=. Applying the multiplier 16, the amount of dependency compensation would be Rs.6,91,000/=. We do this, despite the objection raised by the learned counsel for the Insurance Company that going by the multiplier which should have been applied as per the Judgment MACA.NO.75/04 C 6 of the Apex Court referred to above, the multiplier should have been 15. We find that there is no Cross Appeal. Accordingly, the appellants would be entitled to Rs.6,91,000/= instead of Rs.3,84,000/=. The Appeal is allowed in part and the appellants are allowed to realise a sum of Rs.3,07,000/= with interest at 7.5 per cent from the date of the petition till the date of realisation from the third respondent. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge