IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 MACA.No. 1500 of 2008(B) ----------------------- OPMV.235/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT : APPELLANT ----------------------- THE NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE OTTAPALAM, REP.BY ITS MANAGER. BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN RESPONDENT(S): RESPONDENTS -------------------------- 1. MUHAMMED, S/O.LATE ALIYAMU, AGED 70, CHAVATHAKATTIL HOUSE, P.O.CHALAVARA. 2. ETHEEMA, S/O.MUHAMMED, AGED 60, CHAVATHAKATTIL HOUSE, P.O.CHALAVARA. 3. KADEEJA, W/O.LATE KUNHAYAMU, AGED 37, CHAVATHAKATTIL HOUSE, P.O.CHALAVARA. 4. MUHAMMED SHIHAB, S/O.LATE.KUNHAYAMU, CHAVATHAKATTIL HOUSE, P.O.CHALAVARA. 5. SUBAIR, S/O.LATE.KUNHAYAMU, CHAVATHAKATTIL HOUSE, P.O.CHALAVARA. 6. SAKEER HUSSAIN, S/O.LATE.KUNHAYAMU, AGED 17 YEARS MINOR, REPRESENTED BY GUARDIAN AND NEXT FRIEND CHAVATHAKATTIL HOUSE, P.O.CHALAVARA. 7. MUHAMMED ASHRAF, S/O.ABU, CHARVATHODY HOUSE, P.O.CHALAVARA (DRIVER OF JEEP KL-9 C 7335). MACA.No. 1500 of 2008 (B) - 2 - 8. K.P.SHANEENA, D/O.ALI KALATHUMPADIKKAL HOUSE, P.O.OTTAPALAM, R.C.OWNER OF JEEB KL-9 C 7335. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R7 SRI.K.RAVI (PARIYARATH) FOR R7 SRI.K.M.SATHYANATHA MENON FOR R1-5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A. No.1500 of 2008 ------------------------------------- Dated this the 27th day of February, 2009 JUDGMENT BASANT, J. The insurance company/3rd respondent before the Tribunal is the appellant before us. The insurance company, it is submitted, had taken the requisite permission under Section 170 of the Motor Vehicles Act. The claimants had claimed compensation for the death of the deceased, who was the son of claimant Nos.1 and 2, the husband of claimant No.3 and the father of claimant Nos.4 to 6. The deceased succumbed to the injuries suffered by him in a motor accident, which occurred on 29.05.04. He continued as an inpatient for 6 days and succumbed to the injuries. He was allegedly aged 43 years at the time of his death. He was a cook in a hotel. He was allegedly earning an income of Rs.250/- per day. In support of the claim for compensation, the 3rd claimant examined herself as PW1. A co-worker and the employer of the deceased were examined as PWs 2 and 3. All of them made assertions that the deceased was a cook in the hotel and he was earning an income M.A.C.A. No.1500 of 2008 2 of Rs.250/- per day. Exts.A1 to A11 were marked. Ext.A4 is the voter's identity card issued to the deceased by the election commission. That shows that he was aged 43 years on the date of his death. 2. The Tribunal, on the basis of the materials available, came to the conclusion that the claimants are entitled to a total amount of Rs.5,22,300/- as per the details shown below: i) Medical expenses : Rs. 17,400/- ii) Expenses for bystander : Rs. 900/- iii) Transportation expenses : Rs. 2,000/- iv) Loss of estate : Rs. 2,500/- v) Pain and suffering : Rs. 10,000/- vi) Funeral expenses : Rs. 2,500/- vii) Loss of consortium : Rs. 30,000/- viii) Loss of love and affection : Rs. 25,000/- ix) Loss of dependency : Rs.4,32,000/- (4500 X 12 X 2/3 X 12) ...................... Total : Rs.5,22,300/- ...................... The said amount of Rs.5,22,300/- was directed to be paid along with interest @ 7% per annum and cost of Rs.5,000/-. The insurer was made liable to make the payment. M.A.C.A. No.1500 of 2008 3 3. The learned counsel for the insurer contends that the insurer is aggrieved by the impugned award. Called upon to explain the reasons, the learned counsel for the appellant submits that under the heads `loss of consortium' and `loss of love and affection', amounts of Rs.30,000/- and Rs.25,000/- have been awarded and this is excessive. More importantly the counsel contends that in any view of the matter reckoning of the multiplicand at Rs.4,500/- is not justified at all. In any view of the matter in the absence of better evidence, such a multiplicand should not have been taken, contends the learned counsel for the appellant. 4. The learned counsel for the respondents/claimants on the other hand contends that as a matter of fact the quantum awarded is insufficient. The deceased belonged to the age group of 40-45 years. The most authentic document of all the documents available reveals that he was 39 years on 09.10.2000, that is the electoral identity card issued by the election commission. The Tribunal without any justification went wrong in going by the age noted in the postmortem certificate and reckoned the age of the deceased to be 45 years. Even assuming that he was 45 years old, for persons of the age group 45-50, going by the second schedule of the Motor Vehicles Act, the M.A.C.A. No.1500 of 2008 4 applicable multiplier is 13. But the Tribunal has reckoned only 12 as the multiplier. The learned counsel submits that in any view of the matter in the circumstances of the case, 15 must have been adopted as the multiplier as the deceased belonged to the age group of 40-45 as convincingly indicated by Ext.A4. 5. The learned counsel for the claimants further contends that it may not be lost sight of that a family consisting of parents, wife and 3 children were all depending on the deceased. We have evidence coming forth from PWs 1 to 3 about the income of the deceased and that shows that he was actually earning an amount far in excess of Rs.4,500/- per mensem reckoned as multiplicand by the Tribunal. In any view of the matter, the counsel submits that even if the monthly income were reckoned at Rs.3,750/- applying the appropriate multiplier, the quantum of compensation awarded for loss of dependency ie. Rs.4.32 lakhs does not warrant interference. 6. The learned counsel for the insurance company on the contrary contends that even though the employer and another co-worker had come before the Tribunal and tendered evidence in tandem with the evidence of the wife of the deceased about the income of the deceased, it will not be prudent to place reliance on such testimony. M.A.C.A. No.1500 of 2008 5 7. Having considered all the relevant circumstances particularly the crucial circumstance that only 12 has been adopted as the multiplier, whereas adoption of 15 would have been absolutely justified, We are not persuaded to agree that the quantum of compensation fixed can in any way be said to be not fair, reasonable and just. The quantum of compensation fixed for dependency, we conclude, is fair, reasonable and just and does not, at any rate, warrant appellate interference. Similarly considering the number of dependents and their age, the amounts awarded for loss of consortium and loss of love and affection - though certainly on the higher side compared to amounts awarded by the other Tribunals, we are satisfied that appellate interference is not warranted in the facts and circumstances of this case. 8. This appeal is, in these circumstances, dismissed. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-