IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 MACA.No. 1403 of 2005() ----------------------- OPMV.846/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANTS/PETITIONERS. ------------------------------------ 1. THRESSIAMMA JOSEPH, W/O.LATE JOSEPH XAVIOUR, VADAKKEMANAYATH(MANAVATHU), KURAVILANGAD KARA, KURAVILANGAD VILLAGE. 2. AVINASH, S/O.LATE JOSEPH, VADAKKEMANAVATH(MANAVATHU) KURAVILANGAD KARA, KURAVILANGAD VILLAGE. 3. ANISHA, D/O.LATE JOSEPH, VADAKKEMANAYATH(MANAVATHU), KURAVILANGAD KARA, KURAVILANGAD VILLAGE. 4. ANU, D/O.LATE JOSEPH, VADAKKEMANAYATH (MANAVATHU), KURAVILANGAD KARA, KURAVILANAGAD VILLAGE. 5. CHINNAMMA XAVIER, W/O.LATE XAVIOUR, VADAKKEMANAYATH (MANAVATHU), KURAVILANGAD KARA, KURAVILANGAD VILLAGE. BY ADV. SRI.ASP.KURUP SRI.SADCHITH.P.KURUP RESPONDENT(S): RESPONDENTS. --------------------------- 1. BABU THANKAPPAN, S/O.AMMINI, CHAMAKKALAYIL, CHERUVANDOOR P.O. ETTUMANOOR. 2. ULAHANNAN JOSEPH @ TOMY, KUTIRAVATTATHIL, VEMPALLY P.O. VEMPALLY KARA, KANAKKARY VILLAGE. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED. REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM. ADV. SRI.P.M.M.NAJEEB KHAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No. 1403 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of July, 2009 JUDGMENT Joseph, J. The appellants are the wife, two minor children, the major son and the mother of the deceased, who was an L.I.C. Agent. He died as a result of the negligent driving of an autorikshaw. The appeal is directed against the quantum of compensation awarded. 2. Heard the learned counsel for the appellants and the learned counsel for the Insurance Company. 3. The Tribunal awarded a sum of Rs.8,97,626/-, of which Rs.8,52,626/- is awarded towards dependency. This was done by taking the annual income of the deceased at Rs.98,380/- The multiplier adopted is 13. The Tribunal has also awarded an amount of Rs.15,000/- towards loss of love and affection and Rs.10,000/- towards pain and sufferings, besides awarding an M.A.C.A.No. 1403 of 2005 2 amount of Rs.10,000/- towards loss of consortium. Rs.1,500/- was awarded towards transportation to the hospital and Rs.500/- was awarded towards damage to clothing. Rs.4,000/- was awarded towards cost of medicines and bystander expenses and Rs.4,000/- towards funeral expenses. 4. The learned counsel for the appellants would contend that the Tribunal has erred in not taking the multiplier relevant to the wife, in which case the multiplier would have been 15. She was aged 43 at the time of the accident. We are of the view that there is no merit in the said contention. 5. The Claim Petition was filed under Section 166 of the Motor Vehicles Act. As far as the petition under Section 166 of the Act is concerned, there can be no controversy regarding the legal position that it is the age of the deceased which has to be taken for calculating the dependency, if it is the deceased who is older than the dependents. We find no merit in the said contention. M.A.C.A.No. 1403 of 2005 3 6. Secondly it is contended that the income taken by the Tribunal was on the lower side. The Tribunal has relied on Exts.A9 and A11 to show that the deceased was an Income Tax payee for the period 1.4.1999 to 31.3.2000. There, the total income from business and profession is shown as Rs.74,471.78. Ext.A10 is for the subsequent year, which shows that the income from business and profession is Rs.98,379.95. In fact the Tribunal has taken the annual income as Rs.98,380/- being the income for the financial year 1.4.2000 to 31.3.2001. 7. The learned counsel for the appellants would contend that the Tribunal ought to have taken the future prospects also into consideration and he relied on Exts.A13 and A14. Ext.A13 is the certificate issued from the Life Insurance Corporation of India dt.9.10.2004 and Ext.A14 is the certificate dt.18.4.2001. In Ext.A13 it is stated that the deceased was working with them from 25.1.1993 till his death, i.e. on 13.6.2001. It is stated that the total commission for the period 1999 – 2000 is M.A.C.A.No. 1403 of 2005 4 Rs.1,25,824/- and for the year 2000 – 2001 the total commission is Rs.1,79,244/- In Ext.A14 it is stated that the deceased is a 'Crorepathy' of the said branch for the financial year 2000 – 2001. Of course, it may be true that even for self employment future prospects can be considered. We note that the Tribunal has taken the income from the latest tax return viz. Rs. 98,379.95. May be true, there may be increase in the income going by Exts.A9 and A10. The multiplier adopted is also correct, as we have already found. 8. Therefore, we see no reason to increase the income on the ground of prospects being overlooked by the Tribunal. But we notice that admittedly the Tribunal has arrived at the dependency deducting one-third from the total amount calculated. This, we would think, may not be correct. The deceased was apparently maintaining a family consisting of himself, his wife, two minor daughters and his aged mother, besides his major son. Even if we exclude the major son and M.A.C.A.No. 1403 of 2005 5 his mother, there would be four members in the family, including the deceased. In such circumstances, we feel that the deduction should have been limited to one-fourth. 9. We bear in mind the principle laid down by the Apex Court in Sarala Verma v. Delhi Transport Corporation (2009 ACJ 1298). On that basis, after deducting one-fourth, we come to the finding that the appellants would be entitled to a further sum of Rs.1,06,579/- which is rounded off to Rs.1,07,000/- However, we note that the Tribunal has awarded Rs.10,000/- towards pain and sufferings and Rs.15,000/- towards loss of love and affection. Going by the decision of the Apex Court, Rs.10,000/- can be awarded towards loss of consortium. 10. Admittedly the deceased died on the same day. At any rate, going by the decision of the Apex Court, compensation cannot be awarded towards pain and sufferings. Bearing this in mind, we award a net enhancement of M.A.C.A.No. 1403 of 2005 6 Rs.92,000/- with interest at the rate of 7.5% from the date of the petition till the date of realisation. 11. This appeal is accordingly allowed in part. The appellants are allowed to realise an amount of Rs.92,000/- with 7.5% interest from the date of the petition till the date of realisation from the third respondent. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm