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 3RD JANUARY 2011 / 13TH POUSHA 1932 MACA.No. 497 of 2007() --------------------------- OPMV.699/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): 3RD RESPONDENT IN OP(MV) NO.699/2001 --------------------------------------------------------------------------------------- THE MANAGER, NATIONAL INSURANCE COMPANY LIMITED, THRISSUR BRANCH OFFICE, AMBIKA ARCADE, M.G.ROAD, THRISSUR, REPRESENTED BY ITS ASSISTANT MANAGER, MOTOR THIRD PARTY CLAIM SECTION, AJAY VIHAR, M.G.ROAD, ERNAKULAM. BY ADV. SRI.LAL GEORGE RESPONDENT(S): PETITIONERS & RESPONDENTS 1 & 2 IN OP(MV) 699/01 ----------------------------------------------------------------------------------------------------------- 1. JISHA A.S., AGED 36 YEARS, W/O.DECEASED SIVADASAN, PUTHUR HOUSE, KAIPAMANGALAM P.O., THRISSUR. 2. VISHNUDAS, AGED 8 YEARS, S/O.SIVADASAN, MINOR REPRESENTED BY HIS MOTHER JISHA A.S.(IST PETITIONER), PUTHUR HOUSE, KAIPAMANGALAM P.O., THRISSUR. 3. KARTHIK SIVA, AGED 6 YEARS, MINOR, S/O.SIVADASAN, REPRESENTED BY HIS MOTHER, JISHA.A.S.(IST PETITIONER), PUTHUR HOUSE, KAIPAMANGALAM P.O., THRISSUR. 4. LAKSHMI, AGED 65 YEARS, MOTHER OF THE SIVADASAN, PUTHUR HOUSE, KAIPAMANGALAM P.O. 5. NALINI, W/O.GIRI, THATTIL HOUSE, P.O.NATTIKA, THRISSUR. 6. VARGHESE, S/O.ANTONY, ALAPPAT HOUSE, PAZHUVIL, NEAR CHURCH, KURUMBILAVU VILLAGE. R1 TO R4 BY ADV. SRI.N.KRISHNANKUTTY PILLAI ADV. SRI.SHOBY K.FRANCIS FOR R.6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/01/2011 , ALONG WITH MACA NO. 1120 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. Nos.497 & 1120 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 3rd day of January, 2011 JUDGMENT Barkath Ali, J. Both these appeals arise out of the same judgment and award of the Motor Accidents Claims Tribunal, Irinjalakuda in M.V.O.P.No.699 of 2001 dated August 30, 2006. 2. One Sivadasan who was a Meter Reader of Kerala State Electricity Board died in a motor accident that occurred on March 28, 2001 at about 8.15 a.m. near Pori Bazar at Kodungallur. The accident happened when the motor cycle bearing registration No.KL-8/C 8278 ridden by him collided head on with a bus bearing registration No.KER 4611 driven by the 2nd respondent. Sivadasan sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the Modern Hospital, Kodungallur on March 29, 2001 at 9. p.m. Alleging negligence against 2nd respondent in the O.P., the claimants who are the wife, two minor children and mother of MACA 497/2007 & con. case 2 the deceased filed the Original Petition before the Tribunal under section 166 of the Motor Vehicles Act, claiming a compensation of Rs.10 lakhs. 3. Respondents 1 and 2 in the O.P., the driver and owner of the offending vehicle, remained absent before the Tribunal. The 3rd respondent insurer of the offending bus filed a written statement admitting the policy but contended that there was also negligence on the part of the deceased in causing the accident. PWs.1 and 2 were examined and Exts.A1 to A11 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 found that the accident occurred due to negligence on the part of the 2nd respondent in the O.P. and awarded a compensation of Rs.9,94,080/- with interest @ 6% per annum from the date of petition till realization and proportionate costs. The claimants have filed M.A.C.A. No.1120 of 2007 claiming enhancement of compensation awarded by the Tribunal. The 3rd respondent in the O.P. Insurance Company has filed M.A.C.A. No.497 of 2007 challenging the finding of the Tribunal regarding MACA 497/2007 & con. case 3 negligence and also the quantum of compensation awarded by the Tribunal. 4. Heard learned counsel for the Insurance Company and learned counsel for the claimants. 5. The following points arise for consideration:- 1) Whether the finding of the Tribunal that the accident occurred due to negligence of the 2nd respondent can be sustained ? 2) Whether the compensation awarded by the Tribunal is excessive? 3) Whether the claimants are entitled to any enhanced compensation. 6. The accident was not disputed. The finding of the Tribunal that Sivadasan died as a result of the injuries sustained by him in the accident is also admitted. The learned counsel for the Insurance Company disputed the finding of the Tribunal that the accident occurred due to negligence of the 2nd respondent driver of the offending bus. PW2, the eye witness to the accident, testified in a convincing manner before the Tribunal that the accident occurred due to negligence of the driver of the bus. Nothing was brought out during cross-examination to MACA 497/2007 & con. case 4 discredit his evidence. That apart the police has also charged the case against the driver of the bus, as evidenced by Ext.A2 copy of the police charge. No contra evidence was adduced on the side of the Insurance Company to show that there was also negligence on the part of the deceased. Therefore, the Tribunal is perfectly justified in holding that the accident occurred due to negligence of the driver of the bus. Therefore, the finding of the Tribunal on this point is confirmed. 7. Next question for consideration is whether the compensation awarded is excessive. The Tribunal awarded a compensation of Rs.9,94,080/-. Break up of the compensation awarded is as under:- Cost of extra nourishment and : RS. 100 wages to attendants. Medical expenses : Rs. 22,980 Transportation : Rs. 1,000 Funeral expenses : Rs. 3,000 Pain and suffering : Rs. 6,000 Loss of consortium : Rs. 10,000 Loss of love and affection : Rs. 15,000 Loss of dependency : Rs.9,36,000 ------------------ Total : Rs.9,94,080 ======= MACA 497/2007 & con. case 5 8. Learned counsel for the claimants sought enhancement of compensation for the loss of dependency and on other heads. The learned counsel for the Insurance Company would contend that in assessing the loss of dependency, the Tribunal adopted a multiplier of 15 which is excessive and that as the deceased was aged 42 at the time of the accident, a lesser multiplier should have been adopted. 9. Tribunal took the monthly income of the deceased as Rs.7,807/-,which comes to Rs.93,684/- per annum, as evidenced by salary certificate Ext.A6, and after deducting 1/3rd for his personal expenses, balance amount of Rs.62,400/- per annum was taken as his annual contribution to his family. The Tribunal adopted multiplier of 15 and awarded a compensation of Rs.9,36,000/- towards loss of dependency. As the deceased was employed as a Meter Reader in the Kerala State Electricity Board, earning Rs.7,807/- per month, we feel that the Tribunal is perfectly justified in taking that amount as his monthly income. The deceased was aged 42 at the time of the accident. The proper multiplier that can be adopted in this case is 15 as shown MACA 497/2007 & con. case 6 in the Second Schedule to the Motor Vehicles Act. Therefore, the Tribunal is perfectly justified in adopting multiplier as 15. Taking into account the age of the deceased and the fact that he was employed in the Kerala State Electricity Board and that he has left his wife, two minor children and aged mother, we feel that the compensation awarded by the Tribunal is just and reasonable and not excessive. It follows that the claimants are not entitled to any enhanced compensation. That being so, both the appeals are liable to be dismissed. In the result, the appeals are dismissed. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn