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 22ND MARCH 2010 / 1ST CHAITHRA 1932 MACA.No. 605 of 2007(A) ------------------------------------ [O.P(MV).NO.659/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD] .................... APPELLANTS/PETITIONERS: ------------------------------------------ 1. KANAKALATHA, AGED 34 YEARS, W/O.LATE ARAVINDAKSHAN, ARUMANAKKODE, NOCHULLY P.O, COYALMANNAM, PALKKAD. 2. HRI, AGED 9 YEARS, S/O.LATE ARAVINDAKSHAN, ARUMANAKKODE, NOCHULLY P.O., COYALMANNAM, PALAKKAD (REPRESENTED BY MOTHER KANAKALATHA, THE 1ST APPELLANT/1ST PETITIONER). 3. AMMUKUTTY, AGED 66 YEARS, MOTHER OF LATE ARAVINDAKSHAN, ARUMANAKKODE, NOCHULLY P.O., COYALMANNAM, PALAKKAD. BY ADV. SRI.K.P.BALAGOPAL. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. DINESH CHANDRA JAISWAL, 15/4 T.P.NAGAR, INDOOR, MADHYA PRADESH. 2. PHOOL CHAND JAISWAL, 38 YEARS, S/O.NANDALAL, M-9D, TRANSPORT NAGAR, INDORE, MADHYA PRADESH NOW RESIDING AT SAMRAT, ASHOK NAGAR, OPP.NAVJEEVAN SOCIETY, R.C.MARG, CHEMBUR, MUMBAI. 3. UNITED INDIA INSURANCE CO.LTD., 914/915 BURHANI MANSION, TAPAL NAKA, NETAJI SUBHASH CHAND BOSE ROAD, PANAVEL- 410 206. R3 BY ADV. SRI.RAJAN P.KALIYATH. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No. 605 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 22nd day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimants in O.P.(MV) No.659 of 2002 of the Motor Accidents Claims Tribunal, Palakkad challenge the judgment and award of the Tribunal dated October 31, 2006, awarding a compensation of Rs.2,21,400/- for the loss caused to them, on account of the death of Aravindakshan in a motor accident. 2. The facts leading to this appeal in brief are these:- Deceased Aravindakshan who was aged 41 at the time of the accident was an auto-rickshaw driver and was earning Rs.3,000/- per month, according to the claimants. Claimants are his wife, children and father. On January 18, MACA 605/2007 2 2002 at 4.30 p.m. deceased Aravindakshan was riding his motor cycle bearing registration No.TN 37B 5198 from Chithali to Alathur. When he reached near Chitali Post Office, a tanker lorry bearing registration No.MP 09KB 6299, driven by the second respondent, came at a high speed from behind and knocked him down. He sustained serious injuries and succumbed to the injuries sustained while undergoing treatment at Medical College Hospital, Thrissur. According to the claimants, the incident occurred due to the rash and negligent driving of the tanker lorry by the second respondent. The first respondent as the owner and second respondent as the insurer of the tanker lorry are jointly and severely liable to pay the compensation to the claimants. The claimants claimed a compensation of Rs.4,61,000/-. 3. Respondents 1 and 2 remained absent and were set ex parte by the Tribunal. The third respondent insurer of the offending tanker lorry filed a written statement, admitting the policy, but contended that the accident MACA 605/2007 3 occurred due to the negligence on the part of the deceased. 4. PW1 was examined and Exts. A1 to A9 were marked on the side of the claimants. No evidence was adduced by contesting third respondent. The Tribunal, on an appreciation of the evidence, awarded a compensation of Rs.2,21,400/- with interest at the rate of 6% p.a. from the date of petition till realization and proportionate cost. The claimants have come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel appearing for the appellants and the learned 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, driver of the offending tanker lorry, is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation ? MACA 605/2007 4 7. The Tribunal awarded a total compensation of Rs.2,21,400/-. The break up of the compensation awarded is as under:- Transport to hospital : Rs.6,000/- Damages to clothings : Rs.400/- Pain and suffering : Rs.5,000/- Loss of love and affection : Rs.15,000/- Loss of dependency : Rs.1,80,000/- ------------------ Rs.2,06,400 ======== 8. The learned counsel for the appellants has mainly disputed the quantum of compensation awarded by the Tribunal for the loss of dependency, loss of love and affection and loss of consortium. He also pointed out that no compensation was awarded for the funeral expenses. 9. The Tribunal took the monthly income of the deceased as Rs.1,500/- and deducted 1/3 for his personal expenses, took a multiplier of 15 and awarded a compensation of Rs.1,80,000/- for loss of dependency. The learned counsel for the appellant argued that as the deceased was an auto-rickshaw driver, his monthly income MACA 605/2007 5 should have been taken at least Rs.3,000/- per month. There is force in the above contention. Though the driving licence of the claimant was not produced, he was driving the auto- rickshaw at the time of the accident. Therefore, we feel that his monthly income should have been taken as Rs.2,500/- per month. The multiplier adopted by the Tribunal as 15 is not seriously challenged in this appeal. After deducting 1/3rd for his personal expenses his annual contribution to the family can be taken as Rs.20,000/-. Thus, for the loss of dependency, the claimants are entitled to compensation of Rs.3,00,000/-(20000 x 15). Therefore, on this count the claimants are entitled to an additional compensation of Rs.1,20,000/-.. 10. For the loss of love and affection Rs.15,000/- was awarded by the Tribunal, which appears to be very low. The first claimant, widow, was aged 29 and second claimant, child, was aged 4 at the time of the accident. Therefore, we feel that a compensation of Rs.20,000/- would be reasonable on this count. MACA 605/2007 6 11. Towards funeral expenses, no compensation was awarded by the Tribunal. Therefore, for the funeral expenses, we feel that a compensation of Rs.2,000/- would be adequate. 12. As regards the compensation awarded under other heads, we feel that the same is reasonable and therefore, we are not disturbing the same. The Tribunal awarded interest at the rate of 6% p.a., which appears to be very low. The claimants are entitled to interest at the rate of 9% p.a. 13. Thus, the claimant is entitled to an additional compensation of Rs.1,27,000/-. The total compensation assessed by the Tribunal is Rs.206,400/-, but the Tribunal passed an award for Rs.2,21,400/-, which is only a clerical error. Therefore, the award passed by the Tribunal is corrected as Rs.2,06,400/-. The appellants/petitioners are entitled to interest at 9% p.a. from the date of petition till realization. For the compensation already awarded also, they are entitled to interest at the same rate. The award of MACA 605/2007 7 the Tribunal is modified to the above extent. The claimants are entitled to proportionate costs. In the result, the appeal is disposed of as above. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.