IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 MACA.No. 1057 of 2008() ----------------------- OPMV.1213/1999 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): PETITIONERS -------------- 1. SUDHINI,44 YEARS,W/O.LATE BABU, MOOKENCHERII HOUSE,KACHERIPADI,ERNAKULAM. 2. SIBI,25 YEARS,D/O.LATE BABU, MOOKENCHERI HOUSE,KACHERIPADI, ERNAKULAM. 3. BIJEESH,23 YEARS,S/O.LATE BABU, MOOKENCHERI HOUSE,KACHERIPADI, ERNAKULAM. BY ADV. SRI.K.JANARDHANAN RESPONDENT(S): RESPONDENTS --------------- 1. ROBERT M.A., KALATHIL HOUSE, KARTHEDOM,MALIPPURAM P.O. 2. C.J.HENTRY,S/O.JOSEPH, CHERUMITTATH VEEDU, ELAMKUNNAPUZHA,VYPIN. 3. THE NEW INDIA ASSURANCE CO.LTD, ERNAKULAM BRANCH,IST FLOOR, CHANDRIKA BUILDING,COCHIN-11. ADV. SRI.E.A.THANKAPPAN FOR R1 ADV. SRI.P. JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 1057 of 2008 ------------------------------------------------------ Dated: MAY 27, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 1213/1999 on the file of the Motor Accidents Claims Tribunal, Ernakulam, challenges the judgment and award of the Tribunal dated May 9, 2007 awarding a compensation of Rs.3,67,420/- for the loss caused to the claimant on account of the death of deceased Babu in a motor accident. 2. The facts leading to this appeal in brief are these: Decased Babu was a fisherman earning Rs.5000/- per month and was aged 40 at the time of the accident. On March 5, 1999 in the evening deceased Babu while walking along Elamkunnappuzha, was knocked down by a motorcycle bearing registration No. KL 7 V 3441 ridden by the 2nd respondent. Deceased Babu sustained serious injuries and he succumbed to the injuries sustained on March 6, 1999 while undergoing treatment in the Medical Trust Hospital, Ernakulam. The claimants are his wife and two minor children. According to the claimants, the accident occurred due to the negligence on the part of the 2nd respondent. Respondent No.1 as the owner, respondent No.2 as the rider and respondent No.3 as the insurer of the offending M.A.C.A. 1057 of 2008 2 motorcycle are jointly and severally liable to pay compensation to the claimants. The claimants claimed a compensation of Rs.5,91,000/-. 3. Respondents 1 and 2 remained absent before the Tribunal. Respondent No.3 filed a written statement contending that the offending vehicle was not insured with the said company. On the basis of the contentions raised by the 3rd respondent, the real insurance company was impleaded as respondent No.4 in the OP. Respondent No.4 filed a written statement admitting the policy. 4. Exts.A1 to A9 were marked on the side of the claimants before the Tribunal. No evidence was adduced for the contesting respondent No.4 in the OP. On an appreciation of evidence the Tribunal awarded a compensation of Rs.3,67,420/- with interest @ 7.5% per annum and costs. 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. In this appeal respondents 1, 2 and 4 in the OP are shown as respondents 1 to 3. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the 2nd respondent is not challenged in this appeal. Therefore, the only M.A.C.A. 1057 of 2008 3 question which arises for consideration is whether the claimants are entitled to any enhanced compensation. 7. The Tribunal awarded a total compensation of Rs.3,67,420/-. The break up of the compensation awarded is as under:- loss of dependency - Rs.3,00,000/- transportation expenses - 2,500/- funeral expenses - 2,500/- pain and suffering - 15,000/- medical expenses - 7,420/- loss of consortium - 10,000/- loss of estate - 10,000/- loss of love and affection - 20,000/- 8. The Counsel for the appellants/claimants sought enhancement of the compensation for the loss of love and affection. The Tribunal took the monthly income of the deceased as Rs.2500/-, and after deducting 1/3rd for his personal expenses, the balance Rs.20,000/- per annum was taken as his annual contribution to his family and adopted a multiplier of 15 and awarded Rs.3,00,000/- for the loss of dependency. The case of the claimants is that the deceased was engaged in fishing under Malsya Fed and was earning Rs.3000/- per month. The deceased was an able bodied person aged 40. Therefore we feel that his monthly income can be reasonably estimated as Rs.3000/- as contended by the claimants which works M.A.C.A. 1057 of 2008 4 out to Rs.36,000/- per annum. After deducting 1/3rd for his personal expenses, the balance amount of Rs.24,000/- can be taken as his annual contribution for the family. The multiplier adopted as 15 is not seriously challenged. Thus, for the loss of dependency the claimants are entitled to Rs.3,60,000 (24000 x 15). 9. For the loss of consortium, the Tribunal awarded a compensation of Rs.10,000/- and for loss of love and affection Rs.20,000/- which appears to be quite inadequate. Taking into consideration the age of the deceased and the age of the claimants, we feel that a compensation of Rs.20,000/- for loss of consortium and Rs.30,000/- for loss of love and affection would be reasonable. 10. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 11. Thus the claimants are entitled to an additional compensation of Rs.80,000/-. They are entitled to interest at 7.5% per annum from the date of petition till realisation for the amount already awarded and for the additional compensation and proportionate cost. The 3rd respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The M.A.C.A. 1057 of 2008 5 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 mt/-