IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 MACA.No. 713 of 2009() ---------------------- OPMV.733/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): PETITIONERS -------------- 1. SOBHANA, W/O.LATE BALAKRISHNAN @ VESHUKUTTAN. 2. ABHISHEK (MINOR) S/O. LATE BALAKRISHNAN @ VESHUKUTTAN. 3. VIVEK (MINOR) S/O. LATE BALAKRISHNAN @ VESHUKUTTAN MINOR APPELLANTS 2 AND 3 ARE REPRESENTED BY THEIR GUARDIAN MOTHER THE IST APPELLANT HEREIN ALL ARE RESIDING AT KILIKUNNU PARAMBIL HOUSE AZHIYANNUR PO, KADAMPAZHIPURAM,OTTAPALAM,PALAKKAD BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE RESPONDENT(S): RESPONDENTS --------------- 1. C.V.UNNIKRISHNAN, S/O.KUTTYKRISHNAN RESIDING AT ERANDAN VEETTIL, CHAMMANUR, MANGODE, CHERPULASSERY, PALAKKAD DISTRICT. 2. T.SULAIMAN, S/O.SAIDU MUHAMMED, RESIDING AT THOPPIL KUNNATH VEEDU, THIRUVILWAMALA, THRISSUR DISTRICT. 3. NEW INDIA INSURANCE COMPANY LIMITED BRANCH OFFICE OTTAPALAM, PALAKKAD. ADV. SRI.M.JACOB MURICKAN FOR R3 SRI.R.VENUGOPAL FOR R1 & 2 SRI.R.SREEHARI FOR R1 & 2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.713 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.733/2006 of Motor Accidents Claims Tribunal, Ottappalam challenges the judgment and award of the Tribunal dated July 22, 2008 awarding a compensation of Rs. 3,74,400/- for the loss caused to him on account of the death of deceased Balakrishnan @ Veshukuttan in a motor accident. 2. The facts leading to this appeal in brief are these : Claimants are the wife and minor sons of deceased Balakrishnan @ Veshukuttan. On April 28,2006 at about 10.00 a.m., deceased was riding his motor cycle bearing Reg.No.KL 9/S-9347 from Pulapatta to Peringod. When he reached near the over bridge of SMP junction, a tipper lorry bearing Reg.No.KL-8/P-8991 came from the opposite side and dashed against the motor cycle of the deceased. Deceased sustained serious injuries and he succumbed to the injuries while undergoing treatment at the hospital. According to the claimants, the MACA.No.713/2009 2 accident occurred due to the rash and negligent driving of the offending lorry by first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimants, who are the dependents and legal heirs of the deceased. Claimants claimed a compensation of Rs.6 lakhs. 3. Respondents 1 and 2, the driver and owner of the offending lorry filed a written statement admitting the accident, but alleging negligence on the part of the deceased. The third respondent the insurer of the offending lorry filed a written statement admitting the policy. 4. Exts.A1 to A8 were marked on the side of the claimant before the Tribunal. On the side of the contesting third respondent, the copy of the policy was marked as Ext.B1. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending lorry by first respondent and awarded a compensation of Rs. 3,74,400/-. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant and the counsel for the MACA.No.713/2009 3 Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimants are entitled to any enhanced compensation ? 7. Counsel for the appellant mainly disputed the quantum of compensation awarded for the loss of dependency. According to the claimants, the deceased was a head load worker aged 33 earning Rs. 4,000/- per month. Taking his monthly income as Rs. 2,400/- and deducting 1/3 for his personal expenses and adopting a multiplier of 17, Rs. 3,26,400/- was awarded for loss of dependency by the Tribunal. The Tribunal awarded a total compensation of Rs. 3,74,400/-. The break up of the award amount is as under : Loss of dependency -Rs. 3,26,400/- Loss of consortium -Rs. 20,000/- Loss of love and affection -Rs. 20,000/- Transport expenses -Rs. 3,000/- Funeral expenses -Rs. 5,000/- -------------------------- Rs. 3,74,400/- ============ MACA.No.713/2009 4 8. The claimants produced the copy of the identity card issued by the Assistant Labour Officer, Kadampazhippuram Panchayath which is marked as Ext.X1 in this appeal. It shows that the deceased was a head load worker. Therefore, in our view the monthly income of the deceased can be reasonably fixed at Rs. 3,000/-. After deducting 1/3 for his personal expenses, Rs. 2,000/- can be taken as his monthly contribution to his family. The multiplier adopted as 17 by the Tribunal is not seriously disputed. Thus calculated for the loss of dependency, the claimants are entitled to Rs.4,08,000/-. Thus, on this count, the claimants are entitled to an additional compensation of Rs. 81,600/-. 9. It is pointed out by the counsel for the appellants/claimants that no compensation was awarded for pain and suffering endured by the deceased. In the present case, the deceased died while undergoing treatment in the hospital. Therefore, we are of the view that a compensation of Rs. 5000/- would be reasonable on this count. 10. Thus, the claimants are entitled to an additional compensation of Rs. 86,600/- and proportionate cost. The Tribunal awarded interest @ 7% per annum which appears to be very low. The MACA.No.713/2009 5 claimants will be entitled to interest @ 7.5% for the compensation already awarded and also for the enhanced compensation from the date of petition till realisation. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment before the Tribunal. 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 sv. MACA.No.713/2009 6