IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 11TH JANUARY 2011 / 21ST POUSHA 1932 MACA.No. 2097 of 2005() ------------------ OPMV.2698/1997 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM ............ APPELLANTS / PETITIONERS: -------------------------------------------- 1. CYRIAC THOMAS, S/O. LATE THOMAS, AGED 55 YEARS, KACHOLAKKALA, 121, M.I.G., GANDHI NAGAR, KADAVANTHARA POST, ERNAKULAM, KOCHI-682 020, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, LEELAMMA CYRIAC, THE 2ND PETITIONER. 2. LEELAMMA CYRIAC, W/O. CYRIAC THOMAS, AGED 53 YEARS, KACHOLAKKALA, 121, M.I.G., GANDHI NAGAR, KADAVANTHARA POST, ERNAKULAM, KOCHI-682 020. BY ADVS. SRI.M.M.SAIDU MUHAMMED SRI.P.A.SHAJI SAMAD RESPONDENTS / RESPONDENTS: ------------------------------------------------ 1. M.K. ASOKAN, S/O. KUMARAN, MACHINGAL HOUSE, PERINJANAM, PERINJANAM P.O., TRICHUR DISTRICT. 2. VARGHESE @ THARITH, THACHIL ALIYATH, PUTHENCHIRA DESOM & VILLAGE, TRICHUR DISTRICT. 3. THE NEW INDIA ASSURANCE CO. LTD., IRINJALAKUDA BRANCH, IRINJALAKUDA. 4. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, PALLURUTHY. (ADDL. R4). R2 BY ADV. SRI. K.C. BINEESH R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL R4 BY ADV. SRI. M. JACOB MURICKAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No. 2097 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 11th day of January, 2011 JUDGMENT Barkath Ali, J. Appellants are the claimants in O.P.(MV) No.2698 of 1997 on the file of the Motor Accidents Claims Tribunal, Ernakulam. They are parents of deceased Boban Cyriac who died in a motor accident which happened on January 13, 1997 at about 2 p.m. near North Chalakudy. In this appeal they challenge the judgment and award of the Tribunal dated May 28, 2005 awarding a compensation of Rs.1,14,000/- for the loss caused to them on account of the death of Boban Cyriac in the accident. 2. The accident happened while the claimant was riding a motor cycle along Chalakudy – Vellikulangara road, he was knocked down by a lorry bearing registration No.KLB-3283, as a result of which the rider as well as pillion rider sustained very serious injuries and they succumbed to the injuries while undergoing treatment in the hospital. Alleging negligence against 2nd respondent driver of the offending lorry, the MACA 2097/2005 2 claimants filed the Original Petiton before the tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.5 lakhs. 3. Respondents 1 and 2, owner and driver of the offending lorry, filed a joint written statement admitting the accident but attributed negligence to the deceased. The 3rd respondent insurer of the offending lorry filed a written statement admitting the policy of the offending vehicle but but attributed negligence on the part of the deceased. PW1 was examined and Exts. A1 to A13 were marked on the side of the claimants. No evidence was adduced by the respondents. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to the negligence of the 2nd respondent and deceased to the extent of 75% and 25% respectively. The Tribunal assessed a total compensation of Rs. 1,52,000/-, but reduced the same to Rs.1,14,000/- and awarded the same with interest at the rate of 9% per annum from the date of petition till realization and proportionate cost. The claimants have now come up in appeal challenging the quantum of compensation awarded by the MACA 2097/2005 3 Tribunal. Claimants have also challenged the finding of the Tribunal attributing 25% contributory negligence to the claimant. 4. Heard the learned counsel for the claimants and the learned counsel for the Insurance Company. 5. The following questions arise for consideration:- “1) Whether the finding of the Tribunal that there was 25% contributory negligence on the part of the deceased and reducing the compensation to that extent can be sustained.? 2) Whether the claimants are entitled to any enhanced compensation? 6. The following reasons we are not inclined to accept the finding of the Tribunal that there was 25% contributory negligence on the part of the claimant. The police has charged a case against the 2nd respondent, driver of the offending lorry, as seen from Ext.A6 copy of the police charge. No contra evidence was adduced by the 3rd respondent Insurance Company to show that there was also negligence on the part of the deceased. Therefore, we set aside the above finding of the Tribunal and hold that the accident occurred solely due to the negligence of MACA 2097/2005 4 the 2nd respondent driver of the offending lorry. That being so, the claimants are entitled to the entire compensation assessed by the Tribunal i.e.,Rs.1,52,000/-. 7. The next question for consideration is whether the claimants are entitled to any enhanced compensation. Break up of the compensation assessed by the Tribunal is as under:- Transportation and funeral : Rs. 5,000 expenses. Pain and suffering : Rs. 5,000 Loss of estate : Rs. Loss of love and affection : Rs. 10,000 Loss of dependency : Rs.1,32,000 ------------------ Total : Rs.1,52,000 ======== 8. The appellants mainly sought enhancement of compensation awarded by the Tribunal for the loss of dependency and on other heads. 9. The Tribunal took the monthly income of the deceased as Rs.1,500/- per month, adopted a multiplier of 17 and for the first five years his contribution to his family was taken as Rs.1,000/- per month and thereafter at Rs.500/- per month and assessed a total compensation of Rs.1,32,000/- for the loss of MACA 2097/2005 5 dependency. Deceased was working in Allied Sales Corporation as Clerk-cum-Accountant and was earning a salary of Rs.2,038/-, as revealed from Ext.A8 salary slip. He was a B.Com. Graduate and passed a course in Airlines Ticketing and Travel Management. Taking into consideration the above aspects, we feel that his monthly income can reasonably be fixed at Rs.2,250/-, which comes to Rs.27,000/- per annum. After deducting 1/3rd for his personal expenses balance amount of Rs.18,000/- per annum can be taken as his contribution to his family. Multiplier of 17 adopted by the Tribunal is not seriously challenged. Therefore, for the loss of dependency the claimants are entitled to a compensation of Rs.3,06,000/- (Rs.18,000/- x 17). Thus, the claimants are entitled an additional compensation of Rs.1,74,000/- on this count. 10. The Tribunal awarded Rs.10,000/- for loss of love and affection and Rs.5,000/- for pain and suffering endured, which appear to be very low. Taking into consideration the age of the claimants and the age of the deceased, we feel that a compensation of Rs.25,000/- for loss of love and affection and MACA 2097/2005 6 Rs.10,000/- for pain and suffering endured by the deceased would be reasonable. 11. The Tribunal awarded a compensation of Rs.5,000/- for transportation and for funeral expenses, which appear to be inadequate. In the circumstances of the case, we feel that a compensation of Rs.10,000/- would be reasonable on this count. 12. In the result, the claimants are found entitled to additional compensation of Rs.1,99,000/- with interest at 7.5% p.a. from the date of petition till realization and proportionate costs. The 3rd respondent being the insurer of the offending lorry shall deposit the amount 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 to the above extent. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.