IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 MACA.No. 574 of 2006() ---------------------- OP(M)V.341/2000 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): 3RD RESPONDENT -------------------------------------- THE ORIENTAL INSURANCE CO. LTD., REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, METRO PALACE, GROUND FLOOR, NORTH RAILWAY STATION ROAD, ERNAKULAM. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): PETITIONERS & RESPONDENTS 1 AND 2:- -------------------------- 1. K.MOHAMMED KUNHI, S/O.YOUSUF HAJI, SAFURA MANZIL, BENGALAM, P.O.NILASWAR, KASARAGOD DISTRICT. 2. MOHAMMED HANEEFA.N.P, S/O.C.K.AHAMMED, NALUPURAPPATT, PILACHIKARA.P.O, KANHANGAD, KASARAGOD DISTRICT. 3. K.RAVATHY, W/O.KRISHNAN, MADATHAMKANDY HOUSE, CHALAD, KANNUR-14. 4. SURENDRAN.K, S/O.KRISHNAN, MADATHAMKANDY HOUSE, CHALAD, KANNUR-14. 5. SURESH.K, S/O.KRISHNAN, MADATHAMKANDY HOUSE, CHALAD, KANNUR-14. 6. SUGANTHI.K, D/O.KRISHNAN, MADATHAMKANDY HOUSE, CHALAD, KANNUR-14. 7. SUKANYA.K, D/O.KRISHNAN, MADATHAMKANDY HOUSE, CHALAD, KANNUR-14. ADV. SRI.M.V.AMARESAN FOR R3 TO R7 SRI.V.N.RAMESAN NAMBISAN FOR R3 TO R7 SRI.GEORGE CHERIAN(THIRUVALLA) AMICUS CURIAE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 574 of 2006 & Cross Objection No. 27 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 31st day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the third respondent (Insurance Company) in O.P.(MV) No.341 of 2000 of the Addl. Motor Accidents Claims Tribunal, Thalassery challenges the judgment and award of the Tribunal dated May 12, 2005 awarding a compensation of Rs. 2,65,000/- for the loss caused to the claimants on account of death of Sujeendran in a motor accident. 2. The facts leading to this appeal in brief are these :- Deceased Sujeendran was aged 31 at the time of the accident and used to earn Rs. 6,000/- per month, according to the claimants. On October 3, 1999 at about 3.30 p.m. Sujeendran was driving his tempo van bearing Reg.No.KL-7H/9244 from Sri Mookambika Temple, Kollur to MACA 574/2006 2 Kannur. When he reached at Kariankode bridge at Parol Village, a bus bearing registration No.KL-14B/1440, driven by the second respondent, came at a high speed and collided head on with the tempo van. Sujeendran sustained very serious injuries and he succumbed to the injuries sustained on the way to the hospital. Claimants are the mother, brothers and sisters of the deceased. According to the claimants, the accident occurred due to the rash and negligent driving of the offending bus by the second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimants who are the legal heirs and dependents of the deceased. Claimants claimed a compensation of Rs. 3 lakhs. 3. Respondents 1 and 2, the owner and driver of the offending bus, remained absent and were set ex parte by the Tribunal. The third respondent, insurer of the offending bus, filed a written statement admitting the policy, but MACA 574/2006 3 contending that there was negligence on the part of the deceased. 4. PW1 was examined and Exts.A1 to A8 were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal, on an appreciation of evidence, awarded a compensation of Rs. 2,65,000/-. The third respondent, Insurance Company, has filed the appeal, contending that the Tribunal is not justified in adopting a multiplier of 17, as the mother of the deceased, first claimant, was aged 60 at the time of the accident. The claimants have filed cross objection, claiming enhancement of the compensation awarded by the Tribunal. 5. The accident is not disputed. The third respondent, Insurance Company, contended that the accident occurred due to the negligence on the part of the deceased and that therefore, the claimants are not entitled to any compensation. 6. Heard the learned counsel for the MACA 574/2006 4 appellant/Insurance Company and the learned counsel for the cross objectors/claimants. 7. The following points arise for consideration :- 1) Whether the compensation awarded by the Tribunal is excessive ? 2) Whether the claimants are entitled to any enhanced compensation ? 8. The Tribunal awarded a total compensation of Rs.2,65,000/-. The break up of the compensation awarded is as under:- Loss of dependency : Rs.2,44,800/- Pain and suffering : Rs. 5,000/- Loss of love and affection : Rs. 10,000/- Transportation : Rs. 5,000/- ------------------ Total : Rs.2,64,800/- Rounded to : Rs.2,65,000/- ========= 9. The learned counsel for the claimants/cross objectors sought enhancement of the compensation for the loss of dependency, while the learned counsel for the appellant/Insurance Company disputed the multiplier adopted by the Tribunal. The Tribunal took the monthly MACA 574/2006 5 income of the deceased as Rs.1,800/- and after deducting 1/3 for his personal expenses, his monthly contribution to his family was taken as Rs.1,200/-. Deceased was aged 31 at the time of the accident and, therefore, the Tribunal took the multiplier of 17 and awarded a compensation of Rs.2,44,800/- for loss of dependency. The deceased was a driver by profession, which is evidenced from the fact that at the time of the accident, he was driving the tempo van. Therefore, we feel that his monthly income can reasonably be fixed at Rs.4,500/-. The learned counsel for the Insurance Company argued that in the light of the principles laid down in Sarala Varma V. Delhi Transport Corporation (AIR 2009 SC 3104), ½ of the income should be deducted for his personal expenses, as the deceased was a bachelor. We are not inclined to agree. Even in Sarala Varma' case (Supra) it has been held that personal expenses to be deducted depends upon the facts and circumstances of each case. In the present case the mother of the deceased was aged 60 and sisters were married and living separately. In the MACA 574/2006 6 circumstances, we feel that 1/3rd of the income need be deducted for his personal expenses. Therefore, monthly contribution to his family comes to Rs.3,000/- per month, which works out at Rs.36,000/- per annum. 10. The Tribunal adopted a multiplier of 17, which appears to be on the higher side. Only the first claimant, mother of the deceased, was his dependent. Other claimants are major brothers and sisters of the claimant. Therefore, they cannot be treated as his dependents. In the second Scheduled to the Motor Vehicles Act multiplier to be adopted for the age group of 60 - 65 is only 5. But, the deceased being the youngest son of the first claimant and in the circumstances of the case, we feel that a multiplier of 7 would be reasonable in this case. Therefore, for the loss of dependency, the claimants are entitled to a compensation of Rs.2,52,000/-(Rs.36,000/- x 7). 11. For the pain and suffering, the Tribunal awarded a compensation of Rs.5,000/-, which appears to be very low. In the circumstances of the case, we feel that a MACA 574/2006 7 compensation of Rs.10,000/- would be reasonable on this count. 12. For loss of love and affection, the Tribunal awarded a compensation of Rs.10,000/- which appears to be inadequate. Taking into consideration the age of the deceased and the age of the first claimant, we feel that a compensation of Rs.20,000/- would be reasonable for the loss of love and affection. 13. There is another aspect in this case. Towards loss to the estate, the Tribunal did not award any compensation. Taking into consideration the age of the deceased, we feel that a compensation of Rs.10,000/- would be reasonable for the loss to the estate. 14. Thus, the claimants are found entitled to an additional compensation of Rs.32,200/-. They are entitled to interest at the rate of 9% per annum from the date of petition till realization and proportionate costs. The third respondent, being the insurer of the offending bus, shall deposit the amount within two months from the date of MACA 574/2006 8 receipt of a copy of this judgment with notice to the claimants. In the result, the appeal and cross objections are disposed of as found above. The parties shall bear their own costs. A.K. BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.