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 3RD JANUARY 2011 / 13TH POUSHA 1932 MACA.No. 1534 of 2009() ------------------------------------ OP MV No.587/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ............................... APPELLANT/3rd RESPONDENT IN OP(MV) NO.587/03 --------------------------------------------------------------------------- NATIONAL INSURANCE COMPANY LIMITED, REP.BY ITS MANAGER, BRANCH OFFICE, THOPPUMPADY. REPRESENTED BY ITS AUTHORISED SIGNATORY, KOCHI REGIONAL OFFICE, OMANA BUILDINGS, JEWS STREET, PADMA JUNCTION, KOCHI-682 035. BY ADV. SRI.LAL GEORGE RESPONDENTS/CLAIMANTS AND RESPONDENTS 1 & 2 IN OP(MV) 587/03 ----------------------------------------------------------------------------------------------------------- 1. CELIN GEORGE, AGED 48 YEARS, W/O.GEORGE, KOLLASSERY HOUSE, PALLURUTHY P.O., PALLURUTHY VILLAGE, KONAM, KANAYANNUR TALUK, ERNAKULAM DISTRICT, KOCHI-6. 2. GEORGE.K.C., AGED 52 YEARS, S/O.CHACKO, KOLLASSERY HOUSE, PALLURUTHY P.O., PALLURUTHY VILLAGE, KONAM, KANAYANNUR TALUK, ERNAKULAM DISTRICT, KOCHI-6. 3. THRESSIA SHINI @ SHINI, AGED 25 YEARS, W/O.JOHNSON, KOLLASSERY HOUSE, PALLURUTHY P.O., PALLURUTHY VILLAGE, KONAM, KANAYANNUR TALUK, ERNAKULAM DITRICT, KOCHI-6. 4. MARY SHIJI, AGED 23 YEARS, D/O GEORGE, KOLLASSERY HOUSE, PALLURUTHY P.O., PALLURUTHY VILLAGE, KONAM, KANAYANNUR TALUK, ERNAKULAM DISTRICT, KOCHI-6. ..2- MACA No.1534/2009 -2- 5. JENCY SHIMI, AGED 18 YEARS, D/O.GEORGE, KOLLASSERY HOUSE, PALLURUTHY P.O., PALLURUTHY VILLAGE, KONAM, KANAYANNUR TALUK, ERNAKULAM DISTRICT, KOCHI-6. 6. K.K.SUKUMARAN, S/O.KUNCHU, H.NO.22/1990, KOTTAKKAL HOUSE, EDAKOCHI P.O., KOCHI-6. 7. BABU.V.L., S/O.LAKSHMANAN, VYSSERIL HOUSE, EDAKOCHI P.O., KOCHI-6. R1 TO R5 BY ADVS. SRI.G.D.PANICKER SMT.JEENA JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03-01-2011, ALONG WITH MACA NO. 2029 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Amg A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.Nos. 1534 & 2029 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 3rd day of January, 2011. JUDGMENT Barkath Ali, J. Both these appeals arise out of the same award of the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV) No.587 of 2003 dated December 2, 2008. 2. One Philomina Shibi @ Shibi aged 19 died in a motor accident that occurred on December 11, 2002. While she was pillion riding on a scooter bearing registration No.KL-7/L 6405 ridden by her father along the Edakochi – Thoppumpady road and when they reached at Palluruthy, the scooter collided head on with a bus bearing registration No.KL-7/AJ 441 driven by the 2nd respondent. She sustained serious injuries and she succumbed to the injuries sustained on the way to the hospital. Alleging negligence against the 2nd respondent driver of the offending bus, claimants who are the parents and sisters of the deceased filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.5 lakhs . M.A.C.A.Nos.1534 & con. case 2 3. Respondents 1 and 2, owner and driver of the offending bus, remained absent before the Tribunal. The The 3rd respondent insurer of the offending bus filed a written statement admitting the policy of the bus, but attributed negligence to the rider of the scooter. Exts. A1 to A9 were marked on the side of the claimants. No evidence was adduced by the contesting 3rd respondent. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the 2nd respondent driver of the offending bus and awarded a compensation of Rs.2,55,000/- with interest @ 7.5 % per annum from the date of petition till realization and proportionate costs. The claimants have filed M.A.C.A. No.2029 of 2009 claiming enhancement of the compensation and the 3rd respondent Insurance Company has filed M.A.C.A. No.1534 of 2009 challenging the compensation awarded by the Tribunal. 4. Heard the learned counsel for the claimants and the learned counsel for the Insurance Company. 5. The following points arise for consideration:- 1) Whether the compensation awarded by the M.A.C.A.Nos.1534 & con. case 3 Tribunal is excessive? 2) Whether the compensation awarded by the Tribunal is just and reasonable and if not whether the claimants are entitled to any enhanced compensation ? 6. The Tribunal awarded a total compensation of Rs.2,55,000/-. Break up of the compensation awarded is as under:- Transportation and : Rs. 5,000 funeral expenses. Shock, pain and suffering : Rs. 10,000 Loss of dependency : Rs.2,20,000 Loss of estate : Rs. 10,000 Loss of dependency : Rs. 10,000 ------------------ Total : Rs.2,55,000 ======== 7. Taking into consideration the age of the deceased and the age of the claimants, we feel that the compensation awarded by the Tribunal is not excessive. That being so, M.A.C.A. No.1534 of 2009 has to be dismissed. 8. The next question for consideration is whether the claimants are entitled to any enhanced compensation.The M.A.C.A.Nos.1534 & con. case 4 Tribunal took the monthly income of the deceased as Rs.2,500/-, which comes to Rs.30,000/- per annum, after deducting 1/3rd for her personal expenses, balance amount of Rs.20,000/- per annum was taken as her annual contribution to her family and adopted multiplier of 11 as the deceased was aged 19 and unmarried and 1st claimant mother was aged 48 at the time of the accident, and awarded a total compensation of Rs.2,55,000/- towards the loss of dependency. 9. Learned counsel for the claimants would argue that the deceased was employed as a Clerk in a courier service and used to earn Rs.3,000/- per month, as evidenced by Ext.A9 salary certificate, and that therefore, the monthly income of the deceased should have been taken as Rs.3,000/-. Learned counsel for the Insurance Company, on the other hand, would content that the Tribunal deducted 1/3rd for her personal expenses which is not correct and that as the deceased was a bachelor ½ of her income should have been deducted for her personal expenses. 10. The deceased was aged 19 at the time of the accident. It is not disputed and Ext.A9 shows that she was employed as a M.A.C.A.Nos.1534 & con. case 5 Clerk in a courier service and was earning Rs.3,000/- per month. Therefore, we feel that her monthly income can reasonably be fixed at Rs.3,000/-, which comes to Rs.36,000/- per month. The Tribunal deducted 1/3rd for her personal expenses. Taking into consideration the fact that the 5th claimant, her younger sister, is unmarried and age of the deceased, we feel that only 1/3rd of her income need be deducted for her personal expenses. Thus, the balance amount of Rs.24,000/- has to be taken as her annual contribution to her family. Multiplier of 11 adopted by the Tribunal appears to be reasonable. Thus calculated for the loss of dependency, the claimants are entitled to a compensation of Rs.2,64,000/- (Rs.3,000/- x 11). Thus, the claimants are entitled an additional compensation of Rs.44,000/- on this count. 11. The Tribunal did not award any amount for loss of love and affection. Taking into consideration the age of the deceased, we feel that a compensation of Rs.25,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore,we are not disturbing the same. M.A.C.A.Nos.1534 & con. case 6 12. In the result, the claimants are found entitled to additional compensation of Rs.69,000/- with interest @ 7.5% p.a. from the date of petition till realization and proportionate costs. The 3rd respondent Insurance Company shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimants. In the result, M.A.C.A. No.2029 of 2009 is disposed of as found above and M.A.C.A. No.1534 of 2009 is dismissed. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.