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 7TH JUNE 2010 / 17TH JYAISTHA 1932 MACA.No. 30 of 2004() --------------------- OPMV.1215/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): APPELLANTS/PETITIONERS ------------------------------------ 1. REGINA MARY W/O. LATE XAVIOR @ XAVIOR PAUL RAJ, ARULAL VEEDU, MUNSIFFCHALA KALAM, VELANTHAVALM P.O., CHITTUR TALUK, PALAKKAD DISTRICT. 2. RENY SUSEELA D/O. XAVIOR @ XAVIOR PAULRAJ (MINOR), REPRESENTED BY MOTEHR REGINA MARY, ARULAL VEEDU, VALANTHAVALLAM P.O., CHITTUR TALUK, PALAKKAD DISTRICT 3. JENIFER D/O. XAVIOR @ XAVIOR PAULRAJ (MINOR) REPRESENTED MOTHER REGINAMARY, VELANTHAVALAM P.O., CHITTUR TALUK, PALAKKAD DISTRICT BY ADV. SRI.A.R.GANGADAS RESPONDENT(S): RESPONDENTS -------------------------- 1. K.VENKIDUKUMAR S/O. KAVANDA GROUNDER, CHETTIAR THOTTAM, MADACHUR ROAD, GOBICHITTIPALAYAM, COIMBATORE, TAMILNADU 2. M.VENKETACHALAM S/O. MARIMUTHU, 9-BANJARI KOIL STREET, GOBICHETTIPALAYAM, COIMBATORE, TAMILNADU. 3. THE ORIENTAL INSURANCE COMPANY LTD., 59, RAJA STREET, GOBICHETIPALAYAM, TAMILNADU ADV. SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.30 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P.(MV)No. 1215/99 of Motor Accidents Claims Tribunal, Palakkad challenge the judgment and award of the Tribunal dated 19th May 2003 awarding a compensation of Rs. 2,59,300/- for the loss caused to them on account of the death of Xavior @ Xavior Paulraj in a motor accident. 2. The facts leading to this appeal in brief are these : Deceased Xavior was aged 33 at the time of the accident and was earning Rs. 3,500/- per month by conducting business in groundnut and coconut. On September 27, 1999 at about 7.30 p.m. while deceased Xavior was riding his TVS 50 motor cycle from Velanthavalam to Kozhinpara, a lorry bearing Reg.No.TN-28U/7477 driven by the second respondent came at a high speed and dashed against the motor cycle of the deceased. Deceased sustained serious injuries and he MACA.No.30/2004 2 succumbed to the injuries sustained while undergoing treatment in the hospital. Claimants are the widow and children of deceased Xavior. According to the claimants, accident occurred due to the rash and negligent driving of the offending lorry by its driver, the second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimants, who are the dependents and legal heirs of the deceased. Claimants claimed a compensation of Rs. 5 lakhs. 3. Respondents 1 and 2, the owner and the driver of the offending lorry remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending lorry filed a written statement admitting the policy and further contended that there was also negligence on the part of the deceased. 4. PW1 was examined and Exts.A1 to A9 were marked on the side of the claimants before the Tribunal. Ext.B1 was marked on the side of the third respondent. The Tribunal on an appreciation of evidence awarded a compensation of Rs. 2,59,300/- with interest @ 9% MACA.No.30/2004 3 per annum from the date of petition till realisation and a cost of Rs.500/-. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellants/claimants and the counsel for the Insurance Company. 6. 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 consideration is whether the claimants are entitled to any enhanced compensation. 7. The Tribunal awarded a total compensation of Rs.2,59,300/-. The break up of the compensation awarded is as under : Funeral expenses - Rs.2,000/- Loss of consortium - Rs.5,000/- Loss of estate - Rs.2,500/- Pain and suffering - Rs.5,000/- Loss of dependency - Rs. 2,44,800/- 8. Counsel for the claimants sought enhancement of the compensation for the loss of dependency and loss of consortium. He MACA.No.30/2004 4 pointed out that no compensation was awarded by the Tribunal for loss of love and affection. 9. The Tribunal took the monthly income of the deceased as Rs. 1800/- and after deducting 1/3 for his personal expenses, took Rs. 1,200/- as his monthly contribution to his family and adopted a multiplier of 17 and awarded Rs. 2,44,800/- for the loss of dependency. 10. PW1, the first claimant has testified that deceased was conducting business and earning Rs. 3,500/- per month. Taking into consideration the above fact, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,500/- which comes to Rs. 30,000/- per annum . After deducting 1/3 for his personal expenses, the balance amount of Rs. 20,000/- can be taken as his annual contribution to his family. The multiplier of 17 adopted by the Tribunal is not disputed as the deceased was aged 35 at the time of the accident. Thus calculated for the loss of dependency, claimants are entitled to a compensation of Rs. 3,40,000/-. Thus on this count, the claimants are entitled to an additional compensation of Rs. 95,200/- 11. The Tribunal awarded Rs. 5,000/- for loss of consortium MACA.No.30/2004 5 which appears to be very low. Taking into consideration the fact that deceased was aged 35 and the first claimant was aged only 29 at the time of the accident, we feel that a compensation of Rs.10,000/- would be reasonable for the loss of consortium. Thus, on this count, the claimants are entitled to an additional compensation of Rs. 5,000/-. 12. No compensation was awarded by the Tribunal for the loss of love and affection. The first claimant widow was aged 39 and the children, claimants 2 and 3 were aged 13 and 9 respectively at the time of the accident. Therefore, we feel that a compensation of Rs. 15,000/- would be reasonable for the loss of love and affection. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 13. In the result, the claimants are found entitled to an additional compensation of Rs. 1,15,200/-. They are entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of the copy of this judgment. The MACA.No.30/2004 6 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 sv. MACA.No.30/2004 7