IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 MACA.No. 293 of 2003() -------------------------------- OPMV.3215/1993 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): PETITIONERS IN OP(MV): ------------------------ 1. MARY ANTONY, PANIKULAM HOUSE, P.O. PUTHENCHIRA, MUKUNDAPURAM TALUK. 2. P.M.ANTONY (DIED), -DO- -DO-. 3. JAISON A.PANIKULAM, S/O. P.M.ANTONY, PANIKULAM HOUSE, P.O. PUTHENCHIRA, MUKUNDAPURAM TALUK. 4. SUBASH A.PANIKULAM, S/O. ANTONY, -DO- -DO-. 5. LISSY ANTONY, W/O. JOSE, VITHAYATHIL HOUSE, VARAPUZHA, ERNAKULAM DISTRICT. 6. MATHAI ANTONY PANIKULAM, S/O.ANTONY, PANIKULAM HOUSE, PUTHENCHIRA EAST, MUKUNDAPURAM TALUK. 7. JOSEPH ANTONY, S/O.PANIKULAM ANTONY, -DO- -DO-. 8. JOHNSON, S/O. PANIKULAM ANTONY, -DO- -DO-. 9. JANCY ANTONY, W/O. IGNATIUS, CHIRAYAMKANDATH HOUSE, MUKUNDAPURAM TALUK. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH M.A.C.A. NO.293/2003 RESPONDENT(S): RESPONDENTS 1 TO 3 IN OP (MV): ------------------------- 1. ABUBAKKAR, S/O. ABDUL RAHIMAN, MATTATHUR HOUSE, THACHAMVELIMALA ROAD, KANDARAPADY DESOM, THRIKKAKKARA NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. P.A.ABUBAKKAR, PUKKALIL HOUSE, PERINGAZHA, H.M.T. COLONY P.O., KALAMASSERY. 3. THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, ELOOR SOUTH, UDYOGAMANDAL P.O., ERNAKULAM DISTRICT. R2 BY ADV. SRI.C.N.SAMEER R3 BY ADV.SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20/05/2010, THE COURT ON THE SAME DAY DELIERED THE FOLLOWING: tss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~==~=~=~=~==~=~=~=~==~=~=~=~== M.A.C.A. No. 293 of 2003 =~=~=~=~==~=~=~=~==~=~=~=~==~=~=~=~== Dated this the 20th day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimants in O.P.(MV) No.3215 of 1993 of the Motor Accidents Claims Tribunal, Irinjalakuda challenge the judgment and award of the Tribunal dated August 8, 2002, awarding a compensation of Rs.78,000/- for the loss caused to the claimants, on account of the death of Francis in a motor accident. 2. The facts leading to this appeal, in brief, are these:- Deceased Francis was a Salesman in Cosmo Pharma, Pharmaceutical Distributors, Thrissur and was earning Rs.2,000/- per month. On August 9, 1993 at about 11.30 p.m. decedased Francis was travelling in a tourist taxi bearing registration No.KL-5/75 along Thrissur – Ernakulam National Highway 47. When they reached at Kolathoor, a tempo van bearing registration No.KL-7/C MACA 293/2003 2 781, which was proceeding in front, suddenly stopped, without giving any signal, as a result of which, the taxi, in which Francis was traveling, dashed against the rear portion of the tempo van. Francis sustained serious injuries and he succumbed to the injuries sustained on the same day, while undergoing treatment at Medical College Hospital, Thrissur. According to the claimants, the accident occurred due to the rash and negligent driving of the offending tempo van by the second respondent. The first respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending tempo van are jointly and severally liable to pay the compensation to the claimants. Respondents 4 to 6 are the owner, driver and insurer of the tourist taxi, in which the deceased was traveling. Claimants 1 and 2 are parents and claimants 3 and 4 are the brothers of the deceased. Subsequently, as the second claimant died, claimants 5 to 9 were impleaded. 3. Respondents 1 to 4 and 5 remained absent and MACA 293/2003 3 were set ex parte by the Tribunal. The third respondent, insurer of the tempo van, filed a written statement, admitting the policy and further contending that the accident occurred due to the negligence on the part of the driver of the taxi car. The sixth respondent, insurer of the taxi car, in their written statement admitted the policy and further contended that the accident occurred due to negligence on the part of the driver of the tempo van. 4. This O.P. was jointly tried along with O.P.(MV) No.1336 of 1993, which was a claim petition filed by one of the injured in the accident. 5. PWs.1 and 2 were examined and Exts. A1 to A33 and Ext.X1 were marked on the side of the claimants. Ext.B1 was marked on the side of the respondents. On an appreciation of the evidence, the Tribunal awarded a compensation of Rs.78,000/- with interest at the rate of 9% p.a. from the date of petition till realization and proportionate costs. The claimants have come up in appeal, challenging the quantum of compensation awarded by the MACA 293/2003 4 Tribunal. 6. Heard the learned counsel for the appellants/claimants and learned counsel for the third respondent/ Insurance Company. Only respondents 1 to 3 in the O.P. were made parties to this appeal, as the award was passed only against them. 7. 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, driver of the offending tempo van, is not challenged in this appeal. Therefore, the only question, which arises for consideration in this appeal, is whether the claimants are entitled to any enhanced compensation? 8. The Tribunal awarded a total compensation of Rs.78,000/-. The break up of the compensation awarded is as under:- Loss of dependency : Rs.60,000/- Funeral expenses : Rs. 3,000/- Pain and suffering : Rs.10,000/- Loss of love and affection : Rs. 5,000/- ------------------ MACA 293/2003 5 Rs.78,000/- ======== 9. The learned counsel for the claimants sought enhancement of compensation awarded for loss of dependency and for loss of love and affection. The Tribunal took the monthly income of the deceased as Rs.1,500/- and after deducting 1/3rd for his personal expenses Rs.1,000/- per month was taken as his contribution to the family and adopted a multiplier of 5, as the first claimant, father of the deceased, was aged 64 at the time of the accident, and awarded Rs.60,000/- for the loss of dependency. PW2, mother of the deceased, testified that deceased was employed as a Salesman in Cosmo Pharma, Pharmaceutical Distributors, Thrissur and was earning Rs.2,000/- per month. Ext.A21 is the salary certificate. Therefore, we feel that the monthly income of the deceased can be taken as Rs.2,000/- per month. After deducting 1/3rd for his personal expenses his yearly contribution to the family works out to Rs.16,000/-. The Tribunal took the multiplier of 5. The first MACA 293/2003 6 claimant, mother of the deceased, was aged 64 at the time of the accident. The third claimant, brother of the deceased, was aged only 21, and another brother, the fourth claimant, was aged only 18 at the time of the accident. Taking into consideration all these aspects, we feel that a multiplier of 7 would be reasonable. Thus, for the loss of dependency, the claimants are entitled to Rs.1,12,000/- (Rs.16,000/- x 7). Therefore,claimants are entitled to an additional compensation of Rs.52,000/- on this count. 10. For the loss of love and affection, the Tribunal awarded Rs.5,000/-. Taking into consideration the fact that claimants 3 and 4 are aged 21 and 18, we feel that a compensation of Rs.10,000/- would be reasonable for the loss of love and affection. Thus, on this count, the claimants are entitled to an additional compensation of Rs.5,000/-. Regarding the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. Regarding the apportionment of the compensation amount and disbursement of the same, the MACA 293/2003 7 direction of the Tribunal will stand. 11. In the result, the claimants are entitled to an additional compensation of Rs.57,.000/-. They are entitled to interest at 9% per annum from the date of petition till realization and proportionate costs. The third respondent, being the insurer of the offending vehicle, shall deposit the amount within two months from the date of receipt of copy of this judgment before the Tribunal with notice to the claimants. The award of the Tribunal is modified to the above extent. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn