IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 MACA.No. 7 of 2011() -------------------- OPMV.2955/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): PETITIONERS ------------------------- 1. BIRAJ MALLICK, G.T. ROAD, KHADAKER PARA, P.O. SHEORAPHULLY, HOOGLY DT., WEST BENGAL. 2. JNATUNE BIBI, W/O. BIRAJ MALICK, G.T. ROAD, KHADAKER PARA, P.O. SHEROPULLY. 3. NAJEEMA BEGUM, W/O. SUKUR ALI MALLICK (LATE), G.T. ROAD, KHADAKER PARA, P.O. SHEROPULLY. 4. AFASSAR MALLICK (MINOR), REP. BY BIRAJ MALLICK, G.T. ROAD, KHADAKER PARA, P.O. SHEROPULLY. 5. REXONA KHATUN (MINOR), REP. BY BIRAJ MALLICK, G.T. ROAD, KHADAKER PARA, P.O. SHEROPULLY. BY ADV. SRI.SHEJI P.ABRAHAM RESPONDENT(S): --------------- 1. SASI, S/O. GOPALAN, KAINATTIL HOUSE, VENGANDURE, CHELAKKARA, THRISSUR-680 512. 2. T.P. VIJAYAN, PULACHERY HOUSE, VENGADUR, CHELAKKARA, THRISSUR - 680 512. 3. THE NEW INDIA ASSURANCE CO. LTD., 2ND FLOOR, J R J COMPLEX, OTTAPALAM, P NO. 761103/31/02/09441, PIN - 681 510. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ M.A.C.A.NO: 7 OF 2011 & C.M.Appln. 11 of 2011 ----------------------------------------------------------- Dated this the 2nd November, 2011. JUDGMENT Basant, J. C.M.Appln.11 of 2011 This petition is to condone the delay of 96 days in filing the M.A.C.A. We have heard learned counsel for the appellant and the learned counsel for the Insurance Company which has been made liable under the impugned award to satisfy the same. We take a lenient view. Petition allowed. Delay condoned. M.A.C.A. 7 of 2011 Claimants are the appellants. They are the parents, two siblings and the wife of a deceased person aged about 27 years. He was allegedly employed as a gold worker. He belongs to West Bengal and had come to Kerala in connection with his work. He was employed under an employer for the past about seven years it is revealed. The accident took place on 1-6-2003. He succumbed to the injuries on the same day. Against a total claim of Rs.10 lakhs the Tribunal awarded a total amount of MACA 7/2011 2 Rs.3,42,500/- as compensation as per the details given in paragraph 10 of the impugned award which we extract below:- Expense for transportation 10000 Expense for funeral 5000 Compensation for pain and suffering 15000 Compensation for loss of dependency 272000(2000x12x2/3x17) Damages to clothing and articles 500 Compensation for loss of estate 10000 Compensation for loss of love and affection 15000 Compensation for loss of consortium 15000 ----------------------- Total 342500 ========== 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company who has been made entirely liable under the impugned award. Challenge is raised only against the quantum of compensation awarded. Called upon to explain and be specific the learned counsel for MACA 7/2011 3 the appellant challenges the quantum of compensation awarded under the head of loss of dependency. Only an amount of Rs.2,000/- was reckoned by the Tribunal as the monthly income. This is grossly insufficient, contends the learned counsel. The learned counsel brings to our notice that the accident has taken place on 1-6-2003. He relies on the presumption of prudence in clause 6 of the second schedule to the M.V. Act which has remained in force from 1994. The learned counsel for the appellants further relies on the precedents in Lakshmi Devi v. Mohammed Tabbar (2008 ACJ 1488) and Latha Wadhwa v. State of Bihar (AIR 2001 SC 3218) under which the Tribunals are enabled to draw the presumption of prudence that even a non-earning home maker as also an unskilled manual worker can be assumed to earn an income of Rs.3,000/- per mensem. In the facts and circumstances of this case we are satisfied that Rs.3,250/- can be reckoned as the monthly income of the deceased. Deduction has been made of 1/3rd towards the personal expenses of the deceased. We are in agreement with the Tribunal on this aspect. Only his wife can be said to be wholly dependent on the deceased. Though his parents and siblings are arrayed as claimants it cannot be assumed that MACA 7/2011 4 parents aged 55 years and 45 years or siblings were wholly dependent on the deceased. 3. 17 has been accepted as the multiplier by the Tribunal going by the dictum in Sarla Varma v. Delhi Transport Corporation (2009) 6 SCC 121 the adoption of the multiplier at 17 cannot also be faulted. 4. We are not persuaded to agree with the amount of compensation awarded under any other head deserves or warrants appellate interference. 5. The above discussions lead us to the conclusion that the appellants are entitled to a further amount of Rs.171000/- as compensation as per the details shown below in addition to the amount awarded by the Tribunal. Loss of dependency (3250x12x2/3x17) Rs.442000 minus 271000 = 171000 6. In the result; a) This appeal is allowed in part. b) The appellants are found entitled to a further amount of Rs.1,71,000/- (Rupees one lakh seventy one thousand only) as compensation in addition to the amount awarded by the MACA 7/2011 5 Tribunal. c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period directed by the Tribunal under the impugned award. d) We direct that proportionate costs as directed by the Tribunal shall be computed on the entire amount of compensation hereby awarded as indicated in Jeena v. Satheesh Babu (2011(3) KLT 943). e) All other directions of the Tribunal are upheld. Sd/- R. BASANT Judge Sd/- K. SURENDRA MOHAN Judge jj P.S.to Judge MACA 7/2011 6