IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 MACA.No.715 of 2008 (A) ------------------------------ OP(MV).7/2005 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KASARAGOD. .................... APPELLANT/3RD RESPONDENT ------------------------------------ THE MANAGER, NEW INDIA ASSURANCE COMPANY LTD., SREEVALLI BUILDINGS, ANICODE, CHITTUR, PALAKKAD 678 101. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: PETITIONERS 1 TO 7 -------------------------------------------- 1. K.KUNHABDULLA HAJI, AGED 75 YEARS, S/O.THALAYILLATH ABDUL REHMAN HAJI, THAZHATHU PEEDIKAYIL, R/AT MELADUKKAM HOUSE, PERUMBATTA POST BEEMANADY VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. K.P.ASSYUMMA, AGED 65 YEARS, K.KUNHABDULLA HAJI, RESIDING AT -DO- -DO- 3. M.K.MARIYUMMA, AGED 33 YEARS, W/O.LATE K.P.HAMZA, KADAKKATH PALLIKKAL, R/AT -DO- 4. M.K.SHEFEEK, AGED 15 YEARS, S/O.LATE K.P.HAMZA REP. BY 3RD RESPONDENT MOTHER AND NATURAL GUARDIAN RESIDING AT -DO- 5. M.K.SHEBEENA, AGED 13 YEARS, D/O.LATE K.P.HAMZA, REP.BY 3RD RESPONDENT MOTHER AND NATURAL GUARDIAN RESIDING AT -DO- MACA.No.715 of 2008 (A) -2- 6. M.K.SHAHANAS, AGED 6 YEARS, D/O.LATE K.P.HAMZA, REP. BY 3RD RESPONDENT MOTHER AND NATURAL GUARDIAN -DO- 7. M.K.ABDUL HASEEB, AGED 7 MONTHS, S/O.LATE K.P.HAMZA, REP. BY THIRD RESPONDENT MOTHER AND NATURAL GUARDIAN RESIDING AT -DO- BY SRI.SURESH KUMAR KODOTH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/09/08, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. A. C. A No.715 of 2008 ------------------------------------------------ Dated this the 16th day of September, 2008 JUDGMENT Balachandran, J This is an appeal by the third respondent/Insurance Company assailing the award passed by the Tribunal as being excessive. 2. The parents, widow and four minor children of Hamza, aged 47 who are the respondents in this appeal filed O.P.(MV) No.7/05 before the M.A.C.T, Kasaragod claiming a total amount of Rs.7 lakhs as compensation for the death of Hamza in a motor vehicle accident. The deceased was a passenger in an autorikshaw and was knocked down by a lorry insured by the appellant. The liability of the insurance company to pay compensation is not in dispute and hence, we are considering only M. A. C. A No.715 of 2008 -2- the question as to whether the amount awarded by way of compensation by the Tribunal is excessive. 3. It is the case of the respondents/ claimants that the deceased was working abroad and was earning a monthly income of Rs.20,000/-. However, there was no evidence to establish the income of the deceased and the Tribunal accepted Rs.8,000/- as the monthly income that was being earned by the deceased in 2004 when the accident took place. The deceased was aged 47 and adopting the appropriate multiplier 13 the Tribunal awarded Rs.8,32,000/- as compensation for loss of dependency. 4. It is contended by the learned counsel for the appellant that the deceased though has worked abroad, he had returned to his native place as early as in 2001 and ever thereafter he had not gone abroad as is evidenced by M. A. C. A No.715 of 2008 -3- Ext.A5(a) passport and that therefore, Rs.8,000/- should not have been accepted as the monthly income of the deceased. It is true that Ext.A5(a) shows that ever after 2001 the deceased had not gone abroad. But all the same, it cannot be assumed that a person who was aged 47 and was earning income abroad as evidenced by Ext.A5(a) passport will be idling away his time and will not be earning any income especially when he was maintaining a large family consisting of his parents, widow and four minor children almost at a standard at which he was maintaining them while he was abroad. Even for a non-earning person as per the schedule to the Motor Vehicles Act Rs.15,000/- is fixed as the annual income i.e Rs.1,250/- per month. Considering all the above aspects and the fact that the accident has taken place in 2004 ten years after the enactment of the schedule, we fix the monthly M. A. C. A No.715 of 2008 -4- income of the deceased at Rs.4,500/- as on the date of his death involved in the accident. Hence, dependency compensation comes to Rs.4,68,000/- (4,500 x 2/3 x 12 x 13). Hence, the dependency compensation awarded by the Tribunal is excess by Rs.3,64,000/-. 5. In the result, we allow the appeal in part reducing the aggregate compensation of Rs.8,77,000/- awarded by the Tribunal by Rs.3,64,000/-. The total compensation to which the respondents would be entitled is hence, only Rs.5,13,000/- with 9% interest from the date of application till the date of deposit and costs as awarded by the Tribunal. Shares due to respondents 1 to 3 as ordered by the Tribunal can be released on deposit of the same and the balance amount due to respondents 4 to 7 shall be deposited in a Nationalised Bank as directed by the Tribunal in the same ratio. With the above modification, this appeal is M. A. C. A No.715 of 2008 -5- disposed of. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-