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 24TH JUNE 2010 / 3RD ASHADHA 1932 MACA.No. 412 of 2004() ---------------------- OPMV.1135/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONERS 1 TO 3 ------------------------ 1. MAGGI THOMAS, W/O.MANACHERRY THOMAS, MANACHERRY HOUSE, KOTTANELLOOR P.O., MUKUNDAPURAM, TALUK, THRISSUR DISTRICT. 2. TWINGLE THOMAS, MINOR AGED 13 YEARS, D/O.LATE MANACHERRY THOMAS, MANACHERRY HOUSE, KOTHANALLOOR, MUKUNDAPURAM TALUK, THRISSUR DISTRICT REP.BY MOTHER. 3. MABLE THOMAS, (MINOR), AGED 8 YEARS, D/O.LATE MANACHERRY THOMAS, REP.BY HER GUARDIAN-MOTHER IST APPELLANT MAGGI THOMAS, RESIDING AT --DO--DO--.. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS --------------- 1. CANTER LEASING & FINANCE LTD, 35, IST FLOOR, KALLASH BHAVAN, WAZIRPUR INDUSTRIAL AREA, NEW DELHI. 2. RAKESH KUMAR, S/O.DHONDIRAM CHOWDHARI, BAVNA, NEW DELHI. 3. THE NEW INDIA ASSURANCE COMPANY LTD, LEVEL 5, TOWER2, JEEVAN BHARATHI BUILDINGS 124, CONNAUGHT PLACE, NEW DELHI-110 001. ADV. SRI.P.G.GANAPPAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.412 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th 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.1135/1997 of Motor Accidents Claims Tribunal, Irinjalakuda challenge the judgment and award of the Tribunal dated September 19, 2003 awarding a compensation of Rs. 3,05,000/- for the loss caused to them on account of the death of deceased Menacherry Thomas in a motor accident. 2. The facts leading to this appeal in brief are these : Deceased Thomas was aged 37 at the time of the accident and he was a cleaner as well as the owner of the lorry bearing Reg.No.KL-7/B 7396. On December 29, 1996 at about 7 a.m., he was travelling in the lorry along Mumbai-Pune Highway. When the lorry reached at Mori on the Pune-Bangalore sector of the Highway, a goods carriage bearing Reg.No.DN IL/B 5460 driven by the second respondent came at a high speed and dashed against the lorry of the deceased. Deceased sustained MACA.No.412/2004 2 serious injuries and he succumbed to the injuries sustained while undergoing treatment in Wanless Hospital, Miraj on January 13, 1997. Claimants are his wife, two minor children and parents. According to the claimants, accident occurred due to the rash and negligent driving of the offending goods carriage by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending goods carriage are jointly and severally liable to pay compensation to the claimants, who are the dependants and legal heirs of the deceased. Claimants claimed a compensation of Rs. 6 lakhs. 3. Claimants 4 and 5, the parents of the deceased were impleaded subsequently in the O.P.. Both of them died during the pendency of the O.P. First respondent, the owner of the offending goods carriage, remained absent and was set exparte by the Tribunal. No relief was claimed against the second respondent, the driver of the offending vehicle. The third respondent, the insurer of the offending vehicle, filed a written statement admitting the policy and further contended that the accident occurred due to the negligence on the part MACA.No.412/2004 3 of the driver of the lorry in which the deceased was travelling. 4. First claimant, the widow was examined as PW1 and Exts.A1 to A8 were marked on the side of the claimants before the Tribunal. On the side of the contesting respondent, Ext.B1 was marked. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending goods carriage by second respondent and awarded a compensation of Rs.3,05,000/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. 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. MACA.No.412/2004 4 7. The Tribunal awarded a total compensation of Rs.3,05,000/-. The break up of the compensation awarded is as under : Loss of dependency - Rs. 2,52,000/- Loss of love and affection - Rs. 10,000/- Loss of consortium - Rs. 10,000/- Pain and suffering - Rs. 10,000/- Funeral expenses - Rs. 3,000/- Medical expenses - Rs. 20,000/- 8. Counsel for the claimants sought enhancement of compensation for the loss of dependency, for loss of consortium and for loss of love and affection. 9. The Tribunal took the monthly income of the deceased as Rs.2,100/- which works out to Rs. 25,200/- per annum. After deducting 1/3 for his personal expenses, the balance amount of Rs. 16,800/- was taken was his annual contribution to his family. The Tribunal adopted a multiplier of 15 and awarded Rs. 2,52,000/- for the loss of dependency. Deceased was the owner of the lorry bearing Reg.No-KL 7/B 7396 involved in the accident which is evidenced by Ext.A8, the RC particulars of the said lorry which has a national permit also. That being so, we feel that the monthly income of the deceased can be MACA.No.412/2004 5 reasonably fixed at Rs. 3,500/- which works out to Rs. 42,000/- per annum. After deducting 1/3 for his personal expenses, the balance amount of Rs. 28,000/- can be taken as his annual contribution to his family. The multiplier adopted by the Tribunal as 16 is not seriously challenged. Thus calculated for the loss of dependency, the claimants are entitled to Rs. 4,48,000/- ( 28,000 x 16). Thus on this count, the claimants are entitled to an additional compensation of Rs.1,96,000/-. 10. The Tribunal awarded Rs. 10,000/- for loss of consortium which appears to be very low. The first claimant, widow, was aged 32 at the time of the accident. Therefore, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. Thus, on this count, the claimants are entitled to an additional compensation of Rs.5,000/-. 11. For loss of love and affection, Rs. 10,000/- was awarded by the Tribunal which appears to be quite inadequate. Taking into consideration the tender age of the minor children, we feel that a compensation of Rs. 20,000/- would be reasonable on this count. Thus, on this count, the claimants are entitled to an additional compensation of Rs.10,000/-. MACA.No.412/2004 6 12. There is another aspect in this case. The accident happened at Bangalore. The deceased was a resident of Thrissur. Therefore, towards transportation expenses, we feel that a compensation of Rs. 11,000/- would be reasonable. 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 claimant is entitled to an additional compensation of Rs. 2,22,000/-. 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 a copy of this judgment. 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 sv. MACA.No.412/2004 7 MACA.No.412/2004 8