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 24TH MAY 2010 / 3RD JYAISHTA 1932 MACA.No. 36 of 2008() --------------------- OP(MV).175/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA APPELLANT(S): APPELLANTS/PETITIONERS 2,3,6 & 7 ---------------------------------------------- 1. ABDUL KHADER. 2. KHADEEJA, W/O. ABDUL KHADER. 3. SHERAFUDHIN, S/O. ABDUL KHADER. 4. SABITHA, D/O. ABDUL KHADER. ALL ARE RESIDING AT ILLATH PARAMBIL, KAIPAMANGALAM, THRISSUR DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENT(S): RESPONDENTS/PETITIONERS 4,5,8 & 9 ------------------------------------------------ 1. K.K.ANOOPKUMAR, S/O. KRISHNAN, RESIDING AT ITTITHARAYIL HOUSE, KODUNGALLUR, THRISSUR DISTRICT. 2. BABU, S/O. BALAN, RESIDING AT ITTITHARA HOUSE, CHANDAPPURA DESOM, LOKAMALESWARAM, KODUNGALLUR, THRISSUR DISTRICT. 3. THE NATIONAL INSURANCE COMPANY LIMITED, N.PARAVUR, ERNAKULAM DISTRICT. 4. YOONAS, S/O. ABDULKHADER. 5. ILLIAS, S/O. ABDULKHADER. 6. SHAJITHA, D/O. ABDULKHADER. 7. SUHARA, D/O. ABDULKHADER. ADV. SRI.E.M.JOSEPH FOR R3 RESPONDENTS 4 TO 7 ARE RESIDING AT ILLATH PARAMBIL, KAIPAMANGALAM, THRISSUR DISTRICT. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~==~=~=~=~==~=~=~=~==~=~=~=~== M.A.C.A. No. 36 of 2008 =~=~=~=~==~=~=~=~==~=~=~=~==~=~=~=~== Dated this the 24th day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimants in O.P.(MV) No.175 of 2001 of the Motor Accidents Claims Tribunal, Irinjalakuda challenge the judgment and award of the Tribunal dated September 16, 2006 awarding a compensation of Rs.3,23,226/- for the loss caused to the claimants, on account of the death of Farook in a motor accident. 2. Initially, Farook filed the claim petition, claiming compensation for the injuries sustained by him. Subsequently, he died and his parents, brothers and sisters were impleaded as claimants 2 to 9. 3. The facts leading to this appeal, in brief, are these:- Deceased Farook was aged 24 at the time of the accident and used to earn Rs.4,000/- per month as a MACA 36/2008 2 Driving Instructor. On November 7, 2000 at about 1.15 p.m. Farook and Subith, claimant in O.P. (MV) No.1768 of 2000, were standing at Punnakka Bazar. At that time a bus bearing registration No. KL-8/D 2800, driven by the second respondent, hit against a cross wire connecting two telephone posts on the side of the road and telephone posts fell down over Farook and Subith and they sustained serious injuries. Farook died on April 16, 2001, as a result of the injuries sustained. According to the claimants, the accident occurred due to the rash and negligent driving of the offending vehicle by the second respondent. The first respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending vehicle are jointly and severally liable to pay the compensation to the claimants. The claimants claimed a compensation of Rs.7 lakhs. 4. Respondents 1 and 2, owner and driver of the offending vehicle, remained absent and were set ex parte by the Tribunal. The third respondent, insurer of the offending MACA 36/2008 3 vehicle, filed a written statement, admitting the policy. 5. This O.P. and O.P.(MV) No.1768 of 2000 were jointly tried by the Tribunal and a common award was passed. 6. PWs.1 and 2 were examined and Exts. A1 to A16 were marked on the side of the claimants. Exts.X1 and X2 were marked as court exhibits. Ext.B1 was marked on the side of the contesting third respondent. On an appreciation of the evidence, the Tribunal awarded a compensation of Rs.3,23,226/- with interest at the rate of 6% p.a. from the date of petition till realization. The claimants have come up in appeal challenging the quantum of compensation awarded by the Tribunal. 7. Heard the learned counsel for the claimants and learned counsel for the Insurance Company. 8. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the second respondent is not challenged in this appeal. Therefore, the only question which arises for MACA 36/2008 4 consideration in this appeal is whether the claimants are entitled to any enhanced compensation? 9. The Tribunal awarded a total compensation of Rs.3,23,226/-. The break up of the compensation awarded is as under:- Extra nourishment and wages : Rs. 15,600/- to attendants. Medical expenses : Rs. 79,126/- Transportation : Rs. 1,000/- Funeral expenses : Rs. 3,000/- Loss of estate : Rs. 2,500/- Pain and suffering : Rs. 12,000/- Loss of love and affection : Rs. 10,000/- Loss of dependency : Rs.2,00,000/- ------------------ Rs.3,23,226/- ======== 10. The learned counsel for the claimants sought enhancement of compensation awarded for loss of dependency, loss of love and affection and pain and suffering. 11. The Tribunal took the monthly income of the deceased as Rs.2,500/-, deducted 1/3rd of the income towards his personal expenses for determining MACA 36/2008 5 compensation for loss of dependency, adopted a multiplier of 10 and awarded Rs.2 lakhs for the loss of dependency. The deceased was aged 24 at the time of the accident and was a Driving Instructor. as revealed from Ext.A15 certificate issued from the driving school. Ext.A10 is his driving licence. Ext.A11 shows that he has undergone a Motor Winding Course. The Tribunal did not accept those certificates, as the persons who issued the same were not examined. But, it was nobody's case that the deceased was not working. Even an unskilled worker can easily earn Rs.100/- per day, as held by the Apex Court in Laxmi Devi and others V. Mohammad Tabbar and another, 2008 ACJ 1488. Therefore, we feel that the monthly income of the deceased can be easily fixed at Rs.4,000/- per month., which works out at Rs.48,000/- per annum. After deducting 1/3rd for his personal expenses, balance Rs.32,000/- per annum can be taken as his annual contribution to the family. 12. The Tribunal took the multiplier as 10. Learned counsel for the Insurance Company points out that father MACA 36/2008 6 and mother of the deceased were aged 79 and 65 respectively at the time of the accident and that other claimants are not his dependents and that therefore, the Tribunal should have adopted a multiplier of 5 in this case. We find some force in the above contention. The deceased was aged only 24 at the time of the accident and there are no documents to show the exact age of the father and mother of the deceased. Therefore, we feel that the multiplier of 7 would be reasonable in this case. Thus calculated for the disability caused, the claimants are entitled to a compensation of Rs.2,24,000/- (Rs.32,000/- x 7). Thus the claimants are entitled to an additional compensation of Rs.24,000/- on this count. 13. The Tribunal awarded Rs.10,000/- for loss of love and affection. Taking into consideration the age of the deceased, we feel that a compensation of Rs.25,000/- would be reasonable on this count. Thus, on this count, the claimants are entitled to an additional compensation of Rs.15,000/-. MACA 36/2008 7 14. Rs.12,000/- was awarded by the Tribunal for pain and suffering endured by the deceased. The accident happened on November 7, 2000 and deceased died on April 16, 2001. Therefore, we feel that a compensation of Rs.30,000/- would be reasonable for pain and suffering endured by the deceased. Thus, on this count, the claimants are entitled to an additional amount of Rs.18,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. Regarding the apportionment of the compensation amount and disbursement of the same, the direction of the Tribunal will stand. 15. In the result, the claimants are entitled to an additional compensation of Rs.57,000/-. They are entitled to interest at 7.5% per annum from the date of petition till realization for the compensation already awarded as well as the enhanced compensation. The third respondent, being the insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of copy of this MACA 36/2008 8 judgment before the Tribunal with notice to the claimants. The claimants are entitled to proportionate costs. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn