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 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 MACA.No. 1636 of 2006() ----------------------- OPMV.1372/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT/2ND RESPONDENT: --------------------------------------- NATIONAL INSURANCE COMPANY LTD., SHALIMAR CHAMBERS, P.T. JACOB ROAD, THOPPUMPADY. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): CLAIMANTS: ------------------------- 1. SARASU, W/O. LATE GOPI, KANNETHU HOUSE, MATTAKUZHI, THIRUVANIYOOR VILLAGE, ERNAKULAM DISTRICT. 2. JINISH, S/O.LATE GOPI KANNETH HOUSE, MATTAKUZHI, THIRUVANIYOOR VILLAGE, ERNAKULAM DISTRICT. 3. JISHA, NOW AGED 18 YEARS (15 YEARS AT THE TIME OF INSTITUTION OF THE OP (MV), D/O.LATE GOPI, KANNETH HOUSE, MATTAKUZHI, THIRUVANIYOOR VILLAGE, ERNAKULAM DISTRICT. 4. SUDHEV, S/O. SASIDHARAN KALAPURACKAL HOUSE, RAMESWARAM KARA, RAMESWARAM VILLAGE, PALLURUTHY, ERNAKULAM DISTRICT. 5. KURIAN PAULOSE, PEECHANATTU HOUSE, KUZHIKKKADU, AMBALAMEDU. 6. THE NEW INDIA ASSURANCE COMPANY LTD., DIVISIONAL OFFICE, OPP.NEW MUNICIPAL BUS STAND, TRIPUNITHURA. FOURTH RESPONDENT IS DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 23/9/2010 IN I.A.NO.2118/2010 ADV. SMT.RAJI T.BHASKAR FOR R6 SRI.K.C.PAULOSE FOR R1 TO 3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1636 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of October, 2010 JUDGMENT Barkath Ali, J. Appellant is the third respondent Insurance Company in O.P. (MV)No.1372/2002 on the file of Motor Accidents Claims Tribunal, Muvattupuzha. Respondents 1 to 3in this appeal are the claimants in the O.P. They filed the O.P. under Section 166 (1) ( c) of Motor Vehicles Act claiming a compensation for the loss caused to them on account of death of deceased Gopi in a motor accident that occurred on October 18, 2001 at about 4 P.M. at Mamala. Claimants are the wife and children of the deceased. The accident happened while the deceased was riding the motor cycle bearing Reg.No.KL 7 X 1374 from west to east along N.H. 49, it collided head on with a van bearing Reg.No.KL-6-A-287 driven by the first respondent in the O.P.. He sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital on October 22, 2001. The claimants filed the O.P. against respondents 1 and 2 in the O.P., the owner-cum-driver and insurer of the offending van alleging negligence MACA.No.1636/2006 2 against the first respondent in the O.P. , the driver of the offending van. 2. Respondents 3 and 4 are the owner and insurer of the motor cycle which was ridden by the deceased. Respondents 1 and 3 in the O.P. remained absent before the Tribunal. Respondents 2 and 4, the insurer of the van and the motor cycle filed written statement before the Tribunal admitting the policy of the respective vehicles. 3. This O.P. was jointly tried along with the O.P. filed by the mother of deceased pillion rider of the motor cycle and a common award was passed. Exts.A1 to A15 were marked on the side of the claimants before the Tribunal. Ext.B1 to B3 were marked by the contesting respondents. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the driver of the van, first respondent and awarded a compensation of Rs. 8,94,000/- with interest @ 6% per annum from the date of petition till realisation. The third respondent Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. MACA.No.1636/2006 3 4. Heard the counsel for the appellant/Insurance Company and the counsel for the respondents. 5. The Tribunal awarded a total compensation of Rs. 8,94,000/-. The break-up of the compensation awarded is as under : Loss of dependency - Rs. 8,42,000/- Transportation - Rs. 2,000/- Pain and suffering - Rs. 5,000/- Loss to estate - Rs. 10,000/- Funeral expenses - Rs. 5,000/- Loss of love and affection - Rs. 20,000/- Loss of consortium - Rs. 10,000/- 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the first respondent, the driver of the offending van is not seriously challenged in this appeal which is also proved by the fact that police has charged the case against him and that there was no evidence adduced by the third respondent in the O.P., the insurer of the offending van. Therefore, the only question for consideration is whether the compensation awarded is excessive. 7. The Tribunal took the monthly income of the deceased as MACA.No.1636/2006 4 Rs.8052 and after deducting 1/3 for his personal expenses took the balance amount of Rs. 5368/- rounded to Rs. 5400/- as his monthly contribution to his family and adopted a multiplier of 13 as he was aged 45 at the time of the accident and awarded Rs. 8,42,000/- for loss of dependency. The deceased was employed as a Blacksmith in KSRTC drawing a salary of Rs. 8578/- per month as evidenced by Ext.A8, the certificate issued by the Works Manager, KSRTC Regional Workshop, Aluva. Therefore, the Tribunal is perfectly justified in taking his monthly income as Rs. 8052/- being his last drawn salary as shown in Ext.A9(a) his pay bill for January 2001. 8. The Tribunal adopted a multiplier of 13. The counsel for the appellant argued that the deceased would have retired from service at the age of 55 and therefore the multiplier of 13 adopted by the Tribunal is on higher side. We are unable to agree. The deceased being a blacksmith even after retirement he would have been gainfully employed. Therefore, we are of the view that the Tribunal is right in adopting a multiplier of 13. Taking into consideration all these facts and in the circumstances of the case, we MACA.No.1636/2006 5 feel that the compensation awarded by the Tribunal for loss of dependency and on other heads is just and reasonable and not excessive. That being so, the appeal has to be dismissed. In result, the appeal is dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1636/2006 6 MACA.No.1636/2006 7