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 11TH MARCH 2010 / 20TH PHALGUNA 1931 MACA.No. 1068 of 2005() ----------------------- OPMV.77/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANTS/PETITIONERS: ------------------------------------- 1. FOUSIA C.P., W/O. LATE MOHAMMED ASHRAF, AGED 21 YEARS, RESIDING AT KALLAN PARAMBIL HOUSE, NATUKAL P.O. 2. AMEER SUHAIL, AGED 4 YEARS, S/O. LATE MOHAMMED ASHRAF, MINOR, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN FOUSIA C.P., RESIDING AT KALLAN PARAMBIL HOUSE, NATTUKAL P.O. 3. FATHIMA, M/O. LATE MOHAMMED ASHRAF, AGED 45 YEARS, RESIDING AT KALLAN PARAMBIL HOUSE, NATTUKAL P.O. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENT(S): RESPONDENTS --------------- 1. K.V. SADIKKALI, AGE NOT KNOWN, S/O. KUNHI MOHAMMED, KADUVALLY HOUSE, CHANDAPADDY, MANARKKAD, PALAKKAD (OWNER OF MINI LORRY KL 10 C 5494) 2. ASHRAF C.P., AGE NOT KNOWN S/O. HAMZA, CHETIYAMPARAMBIL HOUSE, KACHERY PARAMBA, ALANALLUR, MANARKKAD, PALKKAD (DRIVER OF MINI LORRY NO KL10 C 5494 DL NO.749/97 VALID FROM 2/3/99 TO 20/10/2001) 3. UNITED INDIA INSURANCE CO.LTD., SABKA BUILDING, THAZEPALAM, TIRUR MACA.NO.1068/05 (POLICY NO.101002/31/021/11/16846/2000) (CERTIFICATE NO.0611334) VALID FROM 23/5/2000 TO 22/5/2001). 4. NIZAR. K., AGED 30 YEARS, S/O. MOHAMMED, IBRAHIM, KERAMBRA HOUSE, MUKKANAM P.O., KOZHIKODE. (OWNER OF THE BIKE KL 11 E 9735). 5. SHAMSUDEEN, AGED 30 YEARS, KALLAMPARAMBIL HOUSE, NATTUKAL P.O., MANARKKAD. 6. NATIONAL INSURANCE COMPANY MAVOOR ROAD, CALICUT. ADV. SRI.M.A.GEORGE FOR R6 SRI.T.J.LAKSHMANAN IYER FOR R3 SRI.T.GOPALAKRISHNAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1068 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.77/2001 of Motor Accidents Claims Tribunal, Ottappalam challenges the judgment and award of the Tribunal dated June 3, 2003 awarding a compensation of Rs. 5,74,500/- for the loss caused to the claimants on account of the death of Mohammed Ashraf in a motor accident. 2. The facts leading to this appeal in brief are these : Deceased Mohammed Ashraf was aged 27 and was working as a driver abroad earning Rs. 2500 UAE Dhs. per month i.e. Rs. 28,000/-. Claimants are his wife, minor son and mother. On December 16, 2000 at about 3.40 p.m., the deceased was pillion riding on the motor cycle bearing Reg.No.KL 11E 9735. When he reached at Nattukal, a mini lorry bearing Reg.No.KL 10C 5494 driven by the second respondent came at a high speed from the opposite direction and dashed against the MACA.No.1068/05 2 motor cycle of the deceased. Deceased sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital. According to the claimants, the accident occurred due to the rash and negligent driving of the offending mini lorry by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending mini lorry are jointly and severally liable to pay compensation to the claimants. Claimants claimed a compensation of Rs. 25 lakhs. 3. Respondents 4 to 6 are the owner, rider and insurer of the motor cycle. Respondents 1 and 2 filed separate written statements. They admitted the accident, but contended that the accident occurred due to the negligence on the part of the rider of the motor cycle. The third respondent the insurer of the offending mini lorry filed a written statement admitting the policy. The fourth respondent, the owner of the motor cycle remained absent. The fifth respondent, the rider of the motor cycle admitted the accident, but contended that the accident occurred due to the negligence on the part of the driver of the mini lorry. The sixth respondent, the insurer of the motor cycle, admitted MACA.No.1068/05 3 the policy of the motor cycle. 4. PWs 1 and 2 were examined and Exts.A1 to A17 were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting respondents. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending mini lorry by second respondent and awarded a compensation of Rs. 5,74,500/- with interest @ 9% per annum from the date of petition till realisation and cost of Rs. 5,000/-. 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 ? 7. The Tribunal awarded a total compensation of MACA.No.1068/05 4 Rs. 5,74,500/-. The break up of the award amount is as under : Loss of dependency -Rs. 5,40,000/- Pain and suffering -Rs. 10,000/- Funeral expenses -Rs. 4,500/- Loss of consortium -Rs. 10,000/- Loss of love and affection -Rs. 10,000/-( Rs. 5,000/- to each of claimants 2 and 3) ----------------- Total -Rs.5,74,500/- ========== 8. Counsel for the appellant/claimants submitted that the Tribunal took the monthly income of the deceased as Rs. 6,000/- and deducted 50% for his personal expenses which is not correct as in the light of the principles laid down in Sarala Varma v. Delhi Transport Corporation and another ( 2009(6)SCC 121), only 1/3 of the income can be deducted for personal expenses. He has also sought enhancement of compensation towards loss of love and affection . 9. There is force in the above contention. The deceased was employed abroad as a driver. Ext.A7 is the copy of the driving licence of the deceased in UAE. Ext.A9 is his passport. His work permit was also produced before the Tribunal. Taking into consideration all these aspects, the Tribunal took the monthly income of the deceased as MACA.No.1068/05 5 Rs.6,000/- which appears to be reasonable. But the Tribunal deducted 50% of his income for his personal expenses. In the light of the principles laid down in Sarala Varma v. Delhi Transport Corporation and another ( 2009(6)SCC 121), only 1/3 of the income can be deducted for personal expenses. That being so, his monthly contribution to the family will be Rs. 4,000/- per month which works out to Rs. 48,000/- per annum. The Tribunal took the multiplier as 15 which is not seriously challenged. We also feel the same to be reasonable as the deceased was aged 27 at the time of the accident and the claimants are aged 21, 4 and 45 respectively. Thus calculated for the loss of dependency, the claimants are entitled to a compensation of Rs. 7,20,000/- ( Rs.4000 x 12 x 15). Thus on this count, the claimants are entitled to an additional compensation of Rs. 1,80,000/-. 10. For the loss of love and affection, the Tribunal awarded Rs. 5,000/- each to claimants 2 and 3 which appears to be very low. Taking into consideration the fact that claimants 1 to 3 are aged 21, 4 and 45 respectively at the time of the accident, we feel that for the loss of love and affection, a compensation of Rs. 10,000/- to each of them MACA.No.1068/05 6 i.e. Rs. 30,000/- would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable. Therefore, we are not disturbing the same. 11. Thus, the claimants are entitled to an additional compensation of Rs.2,00,000/-. 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.1068/05 7