IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 MACA.No. 743 of 2005() ---------------------- OPMV.376/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S)/CLAIMANTS. ----------------------------------- 1. KADEEJA KOZHISSERI, AGED 38 YEARS, W/O.LATE HASSAN. 2. MYMOONA, 24 YEARS, D/O.LATE HASSAN. 3. ABDUL MAJEED, 22YEARS, S/O.LATE HASSAN. 4. RAMLA, AGED 20 YEARS, D/O.LATE HASSAN. 5. ALI (MINOR) 12 YEARS, S/O.LATE HASSAN, REP. BY 1ST PETITIONER MOTHER. 6. RASEENA MINOR, 4 YEARS,R EP. BY 1ST PETITIONER MOTHER. ( ALL ARE RESIDING AT MATTUTHODI HOUSE, OTHUKKUNGAL, MALAPPURAM DISTRICT.) BY ADV. SRI.K.SHIBILI NAHA RESPONDENT(S): RESPONDENTS. --------------------------- 1. ANIL KUMAR, S./O.RAMAN, KOLATHAYI HOUSE, OORAKAM,MELMURI, MALAPPURAM DISTRICT (DRIVER). 2. M.AHAMMED KURIKKAL. MANJERI HOUSE, PAYYANAD, MANJERI, MALAPPURAM DISTRICT (OWNER). 3. THE ORIENTAL INSURANCE CO.LTD., MANJERI, MALAPPURAM DISTRICT. ADV. SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- M.A.C.A. NO.743 OF 2005 --------------------------------------------------------- Dated this the 17th day of February, 2009 JUDGMENT Basant, J. The claimants before the Tribunal are the appellants before us. They are the wife and five children - two of them minors, of the deceased who succumbed to the injuries suffered in a motor accident which took place on 2.12.1995. The deceased was aged about 52 years on the date of his death. He was employed as a coolie and was earning a monthly income of Rs.3,000/-. He continued as an inpatient for 42 days in two hospitals before he succumbed to the injuries suffered on 14.1.1996. Though an amount of Rs.2,50,000/- was claimed as compensation, only an amount of Rs.1,12,500/- was awarded by the Tribunal. The Tribunal had before it Exts.A1 to A7 and no other evidence at all. The Tribunal awarded an amount of Rs.1,12,500/- under the following heads: i. Transport to hospital : Rs. 500/- ii. Funeral expenses :Rs. 2000/- iii. Loss of estate(15000x11x2/3:Rs.110000/- ---------------- Total :Rs.112500/- ---------------- M.A.C.A. NO.743/2005 2 2. The appellants claim to be aggrieved by the impugned award. Called upon to explain the precise nature of the challenge which the appellants want to mount against the impugned award, learned counsel for the appellants first of all contends that reckoning of the monthly income at Rs.1,250/- is not justified at all. The deceased was a coolie and going by the materials available, he was maintaining a family consisting of one wife and five children, though three of them had become major at the time he breathed his last, contends counsel. No better evidence was made available to prove the income of the deceased. The accident took place on 2.12.1995. The Tribunal evidently inspired by the notional income which is permitted to be presumed after the 1994 amendment to the Motor Vehicles Act reckoned the monthly income at Rs.1,500/-. In the absence of better evidence, we are not persuaded to interfere with the monthly income arrived at by the Tribunal. There is no challenge against the multiplier adopted, that is 11, considering the age of the deceased - i.e., between 50 and 55 years. 3. Counsel contends that there has been an omission on the part of the Tribunal in not awarding the compensation claimed for loss of consortium, loss of love and affection, medical and miscellaneous expenses and pain and suffering. We find merit in this contention. The Tribunal had obviously on account of omission or oversight has not M.A.C.A. NO.743/2005 3 chosen to consider the above claims of the appellants. We are satisfied, considering the totality of the circumstances, that amounts are liable to be awarded under the above heads. The deceased was aged 52 years. The first claimant - wife was aged 38 years only. Though claimants 2 to 4 were majors on the date of death of the deceased, claimants 5 and 6 were minors and, therefore, compensation ought to have been awarded for loss of consortium and loss of love and affection. 4. There is evidence to show that the deceased who sustained injuries on 2.12.1995 continued to be an inpatient and died at the Medical College Hospital, Kozhikode on 14.1.1996. He was thus in the hospitals for a period of 42 days. Though bills have not been produced, it is only reasonable to assume that expenses must have been incurred for treatment, hospitalisation, bystanders, extra nourishment etc. during this period. Even in the absence of better evidence, a total amount of Rs.200/- per day can easily be granted globally under this head. No amount is seen awarded for pain and suffering. We are satisfied that an amount of Rs.10,000/- ought to have been awarded under that head. 5. We are, in the circumstances, satisfied that the appellants are entitled to a total further amount of Rs.43,400/- as per the details shown below: M.A.C.A. NO.743/2005 4 i) Loss of consortium :Rs.15,000/- ii) Loss of love and affection :Rs.10,000/- iii) Medical and Miscellaneous Expenses (42 days of hospitalisation) :Rs. 8,400/- iv) Pain and suffering :Rs.10,000/- --------------- Total :Rs.43,400/- --------------- 6. Counsel further points out that interest has been awarded only at 6% per annum and that interest should have been awarded at least at the rate of 7.5% per annum. We are satisfied that the said contention can be accepted. 7. In the result: a) The appeal is allowed in part. b) It is directed that the third respondent shall pay a further amount of Rs.43,400/- in addition to the amount already awarded by the Tribunal. The entire amount payable shall bear interest at the rate of 7.5% per annum from the date of the petition. (R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.A.C.A. NO.743/2005 5 R. BASANT & & C.T. RAVIKUMAR, JJ. M.A.C.A. NO. JUDGMENT 17th February, 2009