IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 MFA.No. 803 of 2002(B) ---------------------- OPMV.1978/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT/PETITIONERS IN THE O.P (M.V)NO.1978/1995 --------------------------------------------------- 1. AYISHA, W/O.LATE ABDULLA, VARAMANGALATH HOUSE, ONGALLUR -II VILLAGE, KARAKKAD DESOM IN OTTAPALAM TALUK. 2. ASHRAF, S/O.LATE ABDULLA, 'DO' 'DO' 3. MUMTHAZ, D/O.LATE ABDULLA, 'DO' 'DO' 4. HUMAIR SHAJI, S/O.LATE ABDULLA, 'DO' 'DO' 5. SAKINA, D/O.LATE. ABDULLA, 'DO' 'DO' 6. RASHIDA, D/O.LATE ABDULLA, 'DO' 'DO' 7. HABIBA, D/O.LATE.ABDULLA, 'DO' 'DO' 8. ATHIKKA, AGED 16 YEARS (MINOR) REPRESENTED BY GUARDIAN,1ST APPELLANT. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENTS/RESPONDENTS IN O.P.(MV) NO.1978/95: ----------------------------------------------- 1. SATHYAN @ BALAMURUGAN, S/O.NATARAJ, H.NO.180/94, THUNGAMUKKU ROAD, KUMARASWAMY ETHARY, COIMBATORE. 2. SUBRAMANYAN, S/O.RASAPPA GOWDER, KURUPPATH HOUSE, KALLEPULLY, PALAKKAD. MFA.803/02 3. NEW INDIA ASSURANCE COMPANY LIMITED., BRANCH OFFICE 720205, 490 FIRST FLOOR, AVINASHI ROAD, PEELAMEDU, COIMBATORE-641 004. 4. P.CHANDRAN, S/O.VELAYUDHAN, THONDIYIL HOUSE, THOTTAKARA POST, OTTAPALAM TALUK. 5. KRISHNAKUMAR, S/O.UNNIKRISHNAN, KUNNUMMAL HOUSE, CHUNNANGAD, POST THOTTAKARA, OTTAPALAM TALUK. 6. UNITED INDIA INSURANCE COMPANY LIMITED, P.B.NO.12, FAIZAL BUILDING, MAIN ROAD, OTTAPALAM. BY ADV. SRI.M.JACOB MURICKAN FOR R3 SRI.JOHN JOSEPH VETTIKAD FOR R6 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.803 OF 2002 (B) ----------------------------------- Dated this the 12th day of March, 2008 J U D G M E N T KOSHY,J. A 45 year old business man sustained fatal injuries in a motor accident. His wife aged 39 years and 7 children applied for compensation claiming for an amount of Rs.10 lakhs. Out of the seven children, six were daughters. Tribunal found that accident occurred due to the negligence of the 1st respondent driver of the lorry owned by the 2nd respondent and insured by the 3rd respondent. Tribunal awarded only Rs.4,11,364/-. Only quantum of compensation is disputed in this appeal. 2. Tribunal fixed 13 as the multiplier. According to the claimants, since the wife was only 39 years and there were five unmarried daughters, a higher multiplier ought have been taken. But we are of the opinion that taking the 2nd Schedule as guideline, for persons aged 40 years, 13 is the apt multiplier MFA.803/02 2 and no interference is required. With regard to the income, according to PW1 wife, her husband was a contractor getting Rs.15,000/- per month from his contract business. Ext.A13 is the income tax assessment order. In 1990-91, the total taxable turn over was Rs.20,450/-. In 1991-92, it was Rs.56,830/-. In 1992-93 it was only Rs.31,600/- and for 1993-94, it was Rs.45,780/-, that was the period of accident. Therefore, taxable monthly income was Rs.3,800/-. It was taken by the tribunal. We are of the opinion that income assessed was very low. He was an income tax payee. What is mentioned in the amount is only taxable income after deducting all expenses incurred. Even though Rs.15,000/- cannot be taken as the monthly income, we are of the opinion that since he was a business man and taxable turn over from the business was Rs.45,780/- at the time of incident, his monthly income can be calculated at Rs.4,500/- and after deducting 1/3 rd, Rs.3,000/- can be taken as the monthly income. He was maintaining a large family. So, compensation payable for loss of dependency will be Rs.3,000 x 12 x 13 = Rs.4,68,000/-. Tribunal has awarded Rs.3,96,864/- towards loss of dependency. Therefore, additional compensation payable MFA.803/02 3 will be Rs.71,136/-. Tribunal has awarded Rs.5,000/- for loss of consortium. Wife was only 39 years old. We are of the opinion that tribunal ought have granted atleast Rs.10,000/- for loss of consortium and additional compensation payable under that head will be Rs.5,000/-. No amount was awarded for loss of love and affection to children. They lost fatherly care. We are of the opinion that Rs.2,500/- each can be awarded to all the seven children. Therefore, they are entitled to Rs.17,500/- on that ground. It is submitted that Rs.2,500/- awarded towards loss of estate is inadequate. But considering the total amount granted, we are not enhancing the amount. It is submitted that for pain and sufferings Rs.5,000/- was awarded. We note that first he was taken to the nearest hospital and from there he was referred to the West Fort Hospital and he has suffered severe pain. But we are not enhancing the compensation awarded for pain and sufferings. No amount is seen awarded for medical expenses. He was given life saving medicines. On the way to the second hospital only he died. There was also transportation expenses for taking the patient from the place of accident to the hospital and back to the house. So, we award Rs.1,400/- for hospital and transportation expenses. Thus, the MFA.803/02 4 additional amount payable is Rs.95,036/- limited to Rs.95,000/-. The above amount should be deposited by the 3rd respondent Insurance company with 7.5% interest from the date of application till its deposit over and above the decreed amount by the tribunal. On deposit of the amount, 1st appellant is allowed to withdraw 50% of the above amount and balance is allowed to withdraw by appellants 2 to 8 in equal proportion. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.803 OF 2002 (B) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 12th March, 2008