IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 MACA.No. 2096 of 2005 --------------------------------- O.P(MV).NO.517/1997 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA. .................... APPELLANT/ 3RD AND 6TH RESPONDENT: ------------------------------------------------------------- UNITED INDIA INSURANCE CO,LTD., REP. BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI 11. BY ADV. SRI.P.R.RAMACHANDRA MENON. RESPONDENTS/ PETIITONERS: --------------------------------------------- 1. FATHIMA MANGALASSERY, AGED ABOUT 48 YEARS, W/O.SAIDALAVI HAJI, RESIDING AT ATTASSERY HOUSE, MULAPPARAMBATH, KAMBALAKKAD P.O. WAYANAD. DISTRICT. 2. ASHRAF.A.S, AGED ABOUT 31 YEARS, S/O.SAIDALAVI HAJI, DO. DO. 3. SIDDIQUE A.S, AGED ABOUT 29 YEARS, S/O.SAIDALAVI HAJI, DO. DO. 4. MUSTHAFA A.S, AGED ABOUT 27 YEARS, S/O.SAIDALAVI HAJI, DO. DO. 5. NOUSHAD.A.S, AGED ABOUT 25 YEARS, S/O.SAIDALAVI HAJI, DO, DO. 6. JASMINE.A.S. AGED ABOUT 18 YEARS, D/O.SAIDALAVI HAJI, DO. DO. M.A.C.A. NO. 2096/2005-C: 7. AYISHA, AGED ABOUT 53 YEARS, W/O.SAIDALAVI HAJI, DO. DO. 8. KADEEJA, AGED ABOUT 34 YEARS, D/O.SAIDALAVI HAJI, DO. DO. 9. ASIYA, AGED ABOUT 32 YEARS, D/O.SAIDALAVI HAJI, DO.O. 10. JAMEELA, AGED ABOUT 30 YEARS, D/O.SAIDALAVI HAJI, DO. DO. 11. KADEESA, AGED ABOUT 77 YEARS, M/O.SAIDALAVI HAJI, DO. DO. 12. P.M.PAILY @ BABY, S/O.MATHEW, AGED ABOUT 40 YEARS, PALLOOR MADATHIL HOUSE, ONDAYANGADI, MANANTHAVADI VIA, WAYANAD DIST. 13. P.P.VARGHESE, S/O.PATHROSE, AGED ABOUT 63 YEARS, PARAKKADAN HOUSE, THRISSILERI AMSOM DESOM,MANANTHAVADY, WAYANAD DISTRICT. 14. ABDUL SALEEM.K. S/O.HASSAN, AGED ABOUT 33 YEARS, KOZHINJIKODAN HOUSE, MADAKKIMALA P.O, WAYANAD DISTRICT -673 121. 15. CHACKO, S/O.CHACKO, KALLUPURACKAL HOUSE, KANIAMBETTA AMSOM, KAMBALAKKAD P.O. WAYANAD DISTRICT. ADV. SRI.MATHEW KURIAKOSE FOR R1 TO R11, ADV. SRI.ABRAHAM MATHEW FOR R12 & R13. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. NO. 2096/2005-C: ORDER ON I.A. NO. 3626/2005 IN M.A.C.A. NO. 2096/2005-C DISMISSED SD/- J.B.KOSHY, JUDGE, 07/10/2008. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. prv. J.B. Koshy & V.K.Mohanan, JJ. -------------------------------------- M.A.C.A. No. 2096 of 2005 --------------------------------------- Dated this the 7th day of October, 2008 Judgment Koshy,J. This appeal is filed by the insurance company questioning the quantum of compensation awarded by the Motor Accidents Claims Tribunal in O.P. (M.V.) No.517 of 1997. The deceased who was having two wives and eight children and mother sustained fatal injuries in a motor accident. According to the claimants, the deceased was aged only 50 years and the Tribunal, therefore, fixed 11 as the multiplier. That is seriously questioned by the appellant insurance company who obtained permission to contest the matter on all points under section 170 of the Motor Vehicles Act. Ext.A2 postmortem certificate shows that his age was 72. The accident occurred in the year 1997. To counter that contention, the counsel for the claimant submitted that in the family member certificate issued on 22.9.1997, age of the mother of the deceased is stated as 69, but, it is seen that he had a daughter aged 26 years who is the 8th claimant. There is no evidence regarding the actual age of the deceased. Therefore, we have given opportunity MACA No.2096/2005 2 to the appellant, even at this stage, to produce any authentic proof of age, but, they have no other proof regarding age other than Ext.A6. Considering the family certificate and considering the fact that evidence of PW1 that the deceased was aged 50 was not cross- examined, we are not disturbing the finding of fact by the Tribunal that he was aged between 50 - 55 years. The Tribunal has fixed only 11 as the multiplier and we are not inclined to change the above as postmortem certificate only shows the approximate age. Ext.A6 certificate produced would show that he was a vaidhyan (physician), a member of the Akhila Kerala Parambarya Vaidhya Federation, but, no evidence regarding income was adduced. The Tribunal fixed the income as Rs.4,000/- per month considering the fact that he was maintaining a family of two wives, eight children etc. At the time of filing the application itself, four children have completed the age of 21. In the absence of evidence in 1997, we are of the opinion that only Rs.3,000/- need be fixed as the monthly income and Rs.2,000/- as the loss of dependency. If that be so, compensation for loss of dependency will be Rs.2,000 x 12 x 11 = Rs.2,64,000/-. The Tribunal has awarded Rs.3,52,000/- as compensation for dependency. Therefore, there will be a reduction of Rs.88,000/- and the total MACA No.2096/2005 3 compensation payable will be Rs.2,92,000/- instead of Rs.3,80,000/- awarded by the Tribunal. The above amount of Rs.2,92,000/- should be deposited by the appellant insurance company with proportionate interest and cost as awarded by the Tribunal after deducting the amount already deposited and can be disbursed to the claimants as directed by the Tribunal. The appeal is allowed partly. J.B.Koshy Judge V.K.Mohanan Judge vaa J.B. KOSHY AND V.K.Mohanan,JJ. ------------------------------------- M.A.C.A. No.2096/2005 ------------------------------------- Judgment Date:7th October,2008