IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 MACA.No. 814 of 2006 ---------------------- OPMV.1534/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANTS/PETITIONERS ------------------------------------ 1. P.SUJATHA, D/O.KUNHIRAMAN NAMBIAR, CHATHOTH HOUSE, 34, PUNNAD.P.O, IRITTY, KANNUR DISTRICT. 2. SUBINDAS, S/O.BABURAJ, (MINOR), AGED 13 YEARS, REP. BY MOTHER P.SUJATHA, DO. DO. 3. SUNISHA, D/O.BABURAJ, (MINOR), AGED 10 YEARS, REP. BY MOTHER T.SUJATHA, DO. DO. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT/2ND RESPONDENT ------------------------------------ THE NEW INDIA ASSURANCE CO. LTD., MAHE. R1 BY ADV. SRI.V.P.K.PANICKER. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ORDERS ON 02/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ................................................................................ M.A.C.A. No. 814 OF 2006 ......................................................................... Dated this the 2nd December, 2009 J U D G M E N T P.R. Ramachandra Menon, J: Appellants are before this Court, seeking for enhancement of compensation in respect of the death of one Baburaj, who was a passenger in an autorickshaw bearing No.KL.13/F-4250. 2. On 07.05.2002 at about 3.50 p.m., while the deceased was travelling in the aforesaid autorickshaw, a bus bearing No.KL.13/B-8260 came from the opposite side and collided with the autorickshaw, causing fatal injuries leading to the death of the said passenger, which led to the Claim Petition preferred by the legal representatives of the deceased. The first respondent before the Tribunal was the owner-cum-driver of the bus and the second respondent was the insurer. It is revealed from the award passed by the Tribunal that the matter was not contested M.A.C.A. No. 814 OF 2006 2 by any of the respondents including the insurer, who did not even file any written statement. The only evidence before the Tribunal were Exts. A1 to A3 produced and marked from the part of the claimants. On the basis of the available materials on record, the Tribunal arrived at a finding that the accident was only because of the negligence on the part of the owner-cum- driver of the bus and hence that the claimants were liable to be compensated by the respondents. 3. With regard to fixation of quantum, the Tribunal observed that the deceased was aged 34 years . It was the case of the claimants that the deceased was a 'cook' in a hotel with a monthly income of Rs.5000/-. Since absolutely no acceptable/reliable evidence was adduced from the part of the claimants to prove the employment or income, the Tribunal reckoned only a notional income of Rs.2,000/-. Considering the age of the deceased as 34 years, '17' was adopted as the proper multiplier and accordingly, a sum of Rs.2,72,000/- was M.A.C.A. No. 814 OF 2006 3 awarded towards 'loss of dependency'. The Tribunal awarded further amounts under other permissible heads, such as Rs.10,000/- towards 'loss of consortium to the first petitioner', Rs.5,000/- towards 'loss of estate', Rs.10,000/- towards 'loss of love and affection', Rs.10,000/- towards 'pain and suffering', Rs.500/- towards 'by-stander's expense', Rs.1000/- towards 'medical expense' and Rs.2000/- each towards 'transportation expense' and 'funeral expense' respectively, thus making a total of Rs.3,12,500/-, which was directed to be satisfied with 7% per annum by the insurer, since the coverage under the policy was not disputed from the part of the insurer. 4. The learned Counsel for the appellants submits that the appellants could not trace out the bills in respect of the treatment undergone by the deceased from the date of the accident (i.e. 07.05.2002) till his death occurred on 11.05.2002 earlier. Subsequently, all the bills have been traced out and they have been produced before this Court, along with the Certificate M.A.C.A. No. 814 OF 2006 4 dated 13.09.2005 issued by the employer of the deceased as to the employment and the monthly income of the deceased as Rs.5000/-. The said documents have been produced before this Court along with I.A.No. 1156 of 2006, supported by an affidavit, seeking to receive the same in additional evidence. The learned Counsel for the appellants submits that the amounts awarded under various heads are not in conformity with the actual facts and figures and that the quantum is liable to be enhanced. 5. True, the documents now produced before this Court were not produced before the Tribunal. However, it remains a fact that no dispute was ever raised from the part of the Insurance company as to the alleged occupation, income or such vital particulars, by filing any written statement. No counter affidavit has been filed in the present I.A. as well. In the said circumstances, we are constrained to award a sum of Rs. 27,976/- ( which is rounded to Rs.28,000/-) towards the 'medical expense' actually incurred by the appellants in respect of the M.A.C.A. No. 814 OF 2006 5 treatment of the deceased. After giving credit to the sum of Rs.1000/- already awarded by the Tribunal under this Head , the appellants will be entitled for the balance sum of Rs.27,000/- (Rupees twenty seven thousand only). 6. It has to be borne in mind that the deceased was maintaining a family consisting of his wife and two minor children. Though the pleadings raised by the claimants before the Tribunal are not controverted in any manner, we are not inclined to accept the monthly income as Rs.5000/-, as contended by the appellants. However, we find that some modification is required taking note of the engagement and also in view of the employment certificate produced before this Court. In the said circumstances, we modify the monthly income and reckon the same as Rs.3000/-, instead of Rs.2000/- as adopted by the Tribunal. On re-calculating the compensation, as above, adopting the very same multiplier, i.e., '17' as adopted by the Tribunal, the claimants will be entitled to get an additional M.A.C.A. No. 814 OF 2006 6 compensation of Rs.1,36,000/- (Rupees one lakh thirty six thousand only) towards 'loss of dependency'. The Tribunal has awarded only a sum of Rs.10000/- towards 'loss of love and affection'. We find it fit and proper to have it enhanced to Rs.15000/- (Rupees fifteen thousand only), whereby the appellants will be entitled for the balance of Rs.5,000/- (Rupees five thousand only) under this head, after giving credit to the sum of Rs.10,000/- already awarded. 7. The learned Counsel for the appellants vehemently submits that the amount awarded towards 'funeral expenses' is much on the lower side. The appellants are hereby awarded a sum of Rs. 500/- (Rupees five hundred only) under this head. Yet another sum of Rs.500/- (Rupees five hundred only) is also awarded towards 'damage to clothing'. 8. In the result, the appellants are awarded a further sum of Rs.1,69,000/- (Rupees one lakh sixty nine thousand only) as the balance compensation payable in respect of the death of the M.A.C.A. No. 814 OF 2006 7 deceased. The said amount shall be satisfied by the Insurance Company with interest at the rate of 7% per annum, as expeditiously as possible, at any rate within a period of two months from the date of receipt of a copy of the judgment. Appeal is allowed in part. No cost. P.R. RAMAN, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk