IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 MACA.No. 38 of 2007() --------------------- OPMV.3269/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANTS/PETITIONERS ------------------------------------ 1. SARAMMA, W/O.HAKKIM. 2. ISMAL BEEVI, W/O.LATE IBRAHIM. 3. RASHEED.B.H., S/O.HAKKIM. 4. RAHMAN.B.H., S/O.HAKKIM. ALL ARE RESIDING AT BUNGLAWPARAMBIL HOUSE, P.O.CHOWKKA, ELINJIPRA, CHALAKUDY, THRISSUR DISTRICT. BY SENIOR ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SRI.SUNIL J.CHAKKALACKAL SRI.JIBU P THOMAS RESPONDENT(S): RESPONDENTS --------------- 1. B.A.BENNY, WORKING AT BANTAK ELECTRICAL CORPORATION, PALLIPURAM, THRISSUR DISTRICT. 2. BASTIN.P.L., S/O.LONAPPAN, RESIDING AT CHATHELI PLASSERY HOUSE, KANNIKKARA, THAZHEKKAD VILLAGE, THRISSUR DISTRICT. 3. THE NATIONAL INSURANCE COMPANY LIMITED, THRISSUR BRANCH OFFICE, AMBIKA ARCADE, M.G.ROAD, TRISSUR, P.B.NO.89, THRISSUR-680 001. ADV. SRI.LAL GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A.38 of 2007 ------------------------------------------------------ Dated: FEBRUARY 10, 2010 JUDGMENT Barkath Ali, J. The challenge in this appeal by the claimant is to the judgment and award of the Motor Accidents Claims Tribunal, Thrissur in OP(MV) 3269/2001 dated January 9, 2006 awarding a compensation of Rs.3,69,850/- for the loss caused to the claimants on account of the death of deceased Hakkim in a motor accident. 2. The facts in brief are these:- The appellants/claimants are the wife, mother and children of deceased Hakkim. On October 22, 2001 at about 12.45 noon the deceased was riding a scooter bearing registration No.KL 8K 4619 along Aloor Canal bund road. When he reached near Aloor Canal Palam, a Maruthi car bearing registration No.KL 8L 4646 driven by the 2nd respondent came at a high speed and dashed against the scooter of the deceased. Hakkim sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital on October 27, 2001. The accident occurred due to the rash and negligent driving of the offending Maruthi car by the 2nd respondent. The 1st respondent is the R.C.owner and the 3rd respondent is the insurer of the offending vehicle. The claimants claimed a compensation of Rs.5 lakhs. M.A.C.A.38 of 2007 2 3. The 1st respondent, owner of the offending car, filed a written statement before the Tribunal disputing the claim and further contending that the accident occurred due to the negligence on the part of the deceased. The 2nd respondent, driver of the offending car, remained absent and was set ex parte. The 3rd respondent, insurer of the offending vehicle, admitted the policy. 4. The 1st claimant was examined as PW.1 and Exts.A1 to A12 series were marked on the side of the claimant before the Tribunal. On the side of the 3rd respondent, the insurer of the offending vehicle, Ext.B1, copy of the insurance policy, was marked. On an appreciation of evidence, the Tribunal awarded a compensation of Rs.3,69,850/-. In this appeal the claimants have challenged the quantum of compensation awarded by the Tribunal. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the offending car by the 2nd respondent is also not challenged in this appeal. Therefore the only point for consideration is whether the appellants/claimants are entitled to any enhanced compensation. 6. The Tribunal has awarded compensation as follows:- Transportation Rs.2,000 damage to clothing 500 Medical expenses 20,850 M.A.C.A.38 of 2007 3 bystander's expenses 500 funeral expenses 5,000 pain and suffering 20,000 loss of dependency 2,56,000 loss of estate 20,000 loss of consortium 20,000 loss of love and affection 25,000 ---------------- Total 3,69,850 ========= 7. In fatal accident cases, the principle for assessing compensation is clearly enunciated by the Apex Court in Sarla Verma (Smt) and others v. Delhi Transport Corporation and another (2009) 6 SCC 121. First, the income of the deceased should be determined. Out of the said income, a deduction should be made in regard to the amount which the deceased would have spent on himself and the balance is considered to be his contribution to the dependant family which constitutes the multiplicand. Having regard to the age of the deceased, appropriate multiplier should be selected. The annual contribution to the family when multiplied by such multiplier) is the loss of dependency to the family. In addition to that a conventional sum, can be awarded for loss of estate, loss of consoritum, funeral expenses and cost of transportation of the body and the cost of any medical treatment to the deceased. M.A.C.A.38 of 2007 4 8. In the present case the Tribunal has taken the age of the deceased as 35 years. In postmortem certificate Ext.A3, his age is shown as 36 years, in Ext.A7 identity card issued by the Election Commission, his age was shown as 37 years. Therefore his age can be taken as 37 years. The proper multiplier that has to be adopted in this case is 16 as done by the Tribunal. As there was no document to prove the income of the deceased, his monthly income was taken as Rs.2000/- by the Tribunal. But, in our view, his monthly income can be taken as Rs.3000/- as even as a coolie he might have used to earn Rs.100/- per day. After deducting 1/3rd towards his personal expenses, he would have contributed Rs.2000/- to his family, which comes to Rs.24000/- per annum. Thus calculated, towards loss of dependency, the claimants will be entitled to Rs.3,84,000/-. Thus, on this count the claimants are entitled to a further compensation of Rs.1,28,000/-. 9. The Tribunal has awarded Rs.20,000/- for the loss to the estate, Rs.20,000/- for the loss of consortium, Rs.20,000/- for pain and suffering and Rs.25,000/- for loss of love and affection, which appears to be reasonable. Therefore we are not disturbing the same. 10. Thus, the claimants are found entitled to an additional compensation of Rs.1,28,000/-. They are entitled to interest at the M.A.C.A.38 of 2007 5 rate of 7.5% per annum from the date of petition till realisation and proportionate costs. The third respondent, the Insurance Company, shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The appeal is disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-