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 2ND JUNE 2010 / 12TH JYAISTHA 1932 MACA.No. 539 of 2003() ---------------------- OPMV.1047/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): APPELLANTS/RESPONDENTS. ------------------------------------- 1. YASHODA, AGED 38, W/O.SANKU @ SANUBALAN(LATE) PANTHALIL HOUSE, PO.POOKKOTTUR, MALAPPURAM DISTRICT. 2. SARITHA, AGED 18 YEARS, D/O. DO. DO 3. SAJITHA AGED 17 YEARS(MINOR) D/O. DO. DO. 4. SABITHA, AGED 13 YEARS(MINOR) D/O. DO. DO. 5. SANJESH, AGED 11 YEARS(MINOR), S/O. DO. DO. 6. KALI, AGED 66 YEARS, W/O.LATE ANDI, - DO- DO. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): RESPONDENTS. --------------------------- 1. M.CHANDRA RAO, S/O.MUNNUSWAMI RAO, THOTTADA, ERAYIL LANE, EDAKKAD AMSOM, NR.CO-OPERATIVE BANK, CHOVVA, KANNUR. 2. R.MANIYAN, M.J.S.HOUSE, KANNUR. 3. THE UNITED INDIA INSURANCE CO.LTD., BANK ROAD, KANNUR. ADV. SRI.K.RAJESH SUKUMARAN FOR R1 & 2 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.539 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P.(MV)No.1047/1994 of Motor Accidents Claims Tribunal, Kozhikode challenge the judgment and award of the Tribunal dated July 11,2002 awarding a compensation of Rs. 2,08,500/- for the loss caused to them on account of the death of deceased Sanku Balan in a motor accident. 2. The facts leading to this appeal in brief are these : Deceased Sanku Balan was aged 33 at the time of the accident and used to earn Rs. 3,000/- per month as an Autorickshaw driver. Claimants are his wife, four minor children and mother. On October 10, 1993 at about 6.30 p.m., deceased was walking along the side of the road at Ramanattukara. At that time, he was knocked down by a lorry bearing Reg.No.KL 13A/4323 driven by first respondent. Deceased sustained serious injuries and he succumbed to the injuries sustained on MACA.No.539/2003 2 the same day while undergoing treatment at Medical College Hospital, Kozhikode. According to the claimants, 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 legal heirs and dependents of the deceased. 3. Respondents 1 and 2, the driver and owner of the offending lorry remained absent before the Tribunal. The third respondent the insurer of the offending lorry filed a written statement admitting the policy. 4. PW1 was examined and Exts.A1 to A7 were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting third respondent. 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. 2,08,500/-. The claimants have now come up in appeal challenging the quantum of compensation awarded by the MACA.No.539/2003 3 Tribunal. 5. Heard the counsel for the appellants/claimants and the counsel for the 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. The Tribunal awarded a total compensation of Rs.2,08,500/-. The break up of the compensation awarded is as under : Loss of dependency - Rs. 1,70,000/- Transportation charges - Rs. 500/- Pain and suffering - Rs. 10,000/- Loss of love and affection - Rs. 10,000/- Loss of consortium - Rs. 10,000/- Loss of expectation of life - Rs. 5,000/- Funeral expenses - Rs. 3,000/- 8. Counsel for the appellants/claimants sought enhancement of compensation for loss of dependency, loss of consortium and loss of love and affection. 9. The Tribunal took the income of the deceased as MACA.No.539/2003 4 Rs. 15,000/- per annum and after deducting 1/3 for his personal expenses, took Rs. 10,000/- per annum as his contribution to his family and adopted a multiplier of 17 and awarded Rs. 1,70,000/- for loss of dependency. Deceased was an autorickshaw driver as evidenced by Ext.A5, his driving licence and was aged 33 at the time of the accident. Taking into consideration these aspects, we feel that his monthly income can be reasonably estimated at Rs. 1750/- i.e. Rs. 21,000/- per annum. After deducting 1/3 for his personal expenses, the balance amount of Rs. 14,000/- per annum can be taken has his annual contribution to his family. The multiplier adopted by the Tribunal as 17 is not seriously challenged. Thus calculated for the loss of dependency, claimants are entitled to a compensation of Rs. 2,38,000/- ( 14,000/- x 17). Thus on this count, the claimants are entitled to an additional compensation of Rs. 68,000/-. 10. For the loss of consortium, the Tribunal awarded a compensation of Rs. 10,000/- and Rs.10,000/- for loss of love and affection which appears to be inadequate. Taking into consideration the fact that the widow was aged only 29 at the time of the accident, we MACA.No.539/2003 5 feel that a compensation of Rs. 15,000/- for loss of consortium would be reasonable. The children were aged 10, 9, 4 and 2 respectively. Therefore for loss of love and affection, in our view, a compensation of Rs. 20,000/- would be adequate. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. In the result, the claimant are entitled to an additional compensation of Rs. 83,000/-. They are entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. 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. 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.539/2003 6 MACA.No.539/2003 7