IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 MACA.No. 761 of 2010(B) ----------------------------------- [O.P(M.V).NO.1037/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR] .................... APPELLANT/THIRD RESPONDENT IN THE O.P(MV): ------------------------------------------------------------------------- THE UNITED INDIA INSURANCE CO.LTD., TIRUR BRANCH REPRESENTED BY THE ASST. MANAGER, UNITED INDIA INSURANCE CO.LTD., REGIONAL OFFICE, KOCHI, HOSPITAL ROAD, ERNAKULAM. BY ADV. SRI.M.A.GEORGE. RESPONDENTS/PETITIONERS AND RESPONDENTS 1 AND 2 IN THE O.P.(MV): --------------------------------------------------------------------------------------------------------------- 1. ALIKUTTY, S/O.MUHAMMED, KUNNAMKOTTUKULAM, LAKSHAMVEEDU, P.O.CHITTADY, MANGALAMDAM-VILLAGE, PALAKKAD DISTRICT, (HUSBAND OF LATE AYSHA). 2. NAZEERA, D/O.ALIKUTTY, DO. DO. 3. RASEENA, D/O.ALIKUTTY, DO. DO. 4. SAREENA, D/O.ALIKUTTY, DO. DO. 5. SABEENA, D/O.ALIKUTTY, DO. DO. 6. IBRAHIM, S/O.KUNJAHAMMED, MARAYAMKUNNATHU HOUSE, ERAVAKKAD, KUMARANELLOORE P.O., PALAKKAD DISTRICT. 7. ASHRAF, S/O.MUHAMMED, NALPATHIL VEEDU, OLIPARA, KAIRADI, PALAKKAD DISTRICT. R1 TO R5 BY ADV. SRI.P.V.CHANDRA MOHAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No.761 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 10th day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the 3rd respondent Insurance Company in O.P.(MV) No.1037 of 2008 on the file of the Motor Accidents Claims Tribunal, Tirur. In this appeal the appellant challenges the judgment and award of the Tribunal dated November 28, 2009 awarding a compensation of Rs.3,65,570/- to the claimants for the loss caused to them on account of death of one Aysha in a motor accident. 2. The accident occurred on August 26, 2008 at about 5 a.m. at Vadakkekalam. While deceased Aysha was pillion riding on a motor cycle bearing registration No.KL-9N-6724 ridden by the second respondent in the O.P. along Chittadi – Mangalam Dam public road, the second respondent in the O.P. negligently applied brake as a result of which she fell down and sustained serious injuries. She succumbed to the MACA 761/2010 2 injuries sustained while undergoing treatment in Jubilee Mission Medical College Hospital, Thrisusr. Alleging negligence against the second respondent in the O.P., the claimants who are the husband and major children of deceased Aysha filed the O.P. before the Tribunal claiming a compensation of Rs.7,52,000/-. 3. Respondents 1 and 2 in the O.P., the owner and rider of the offending motor cycle, remained absent and they were set ex parte by the Tribunal. Respondent No.3 in the O.P., insurer of the offending motor cycle, filed a written statement admitting the policy but denied the liability. 4. PWs.1 and 2 were examined and Exts.A1 to A10 were marked on the side of the claimants. No evidence was adduced by the respondents in the O.P. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence on the part of the second respondent in the O.P., rider of the offending motor cycle, and awarded a compensation of Rs.3,65,570/- with interest @ 7.5% per annum from the date of petition till realization MACA 761/2010 3 and a cost of Rs.3,000/-. Respondent No.3 in the O.P., insurer of the offending motor cycle, has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the appellant Insurance Company and the learned counsel for the claimants. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to negligence of the second respondent in the O.P. is not seriously challenged in this appeal. Therefore, the only question, which arise for consideration, is whether the compensation awarded by the Tribunal is excessive. 7. The Tribunal awarded a total compensation of Rs.3,65,570/-. Break up of the compensation amount awarded is as under:- Loss of dependency : Rs.3,36,000 Medical bills : Rs. 9,570 Loss of estate : Rs. 5,000 Loss of consortium : Rs. 10,000 Funeral expense : Rs. 5,000 MACA 761/2010 4 ------------------ Total : Rs.3,65,570 ======== 8. The learned counsel for the appellant argued that the Tribunal took the monthly income of the deceased as Rs.3,000/- and the multiplier adopted as 14, which are on higher side. There is some force in the above contention. 9. The Tribunal took the monthly income of the deceased as Rs.3,000/- and after deducting 1/3rd for her personal expenses, took the balance amount of Rs.2,000/- per month as her monthly contribution to her family, adopted a multiplier of 14, as she was aged 43 at the time of the accident and awarded Rs.3,36,000/- for loss of dependency. As the deceased was aged 43 at the time of the accident, proper multiplier that can be adopted in this case is only 13. Deceased Aysha was working as Rubber Tapper earning Rs.5,250/- per month, according to the claimants. Taking into consideration the above aspect, we are of the view that the monthly income taken by the Tribunal is just and reasonable. Thus the claimants are entitled to a MACA 761/2010 5 compensation of Rs.3,12,000/- (Rs.2,000/- x 12 x 13) for the loss of dependency instead of Rs.3,36,000/- assessed by the Tribunal. 10. There is another aspect in this case. No compensation was seen awarded by the Tribunal for loss of love and affection. Taking into consideration the age of the claimants, we feel that a compensation of Rs.15,000/- would be reasonable on this count. 11. The Tribunal awarded Rs10,000/- for loss of consortium to the first claimant. Taking into consideration th eage of the first claimant, we feel that a compensation of Rs.15,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore not disturbing the same. 12. In the result, the claimants are entitled to a compensation of Rs.3,61,570/- instead of Rs.3,65,570/- awarded by the Tribunal. The direction of the Tribunal on other aspects will stand. The appellant, being the insurer of MACA 761/2010 6 the offending motor cycle is directed to deposit the amount with interest and cost within two months from the date of receipt of a copy of this judgment with notice to the claimants. The award of the Tribunal is modified as above. The appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE mn.