IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 MACA.No. 1222 of 2007(A) OPMV.464/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA -------------------------- APPELLANTS/PETITIONERS 1. BIVI NOBLE, W/O.LATE NOBLE, PUTHENPURACKAL HOUSE, KADAYIRUPPU P.O., KOLENCHERRY. 2. RONA NOBLE (MINOR), D/O.LATE NOBLE, PUTHENPURACKAL HOUSE, KADAYIRUPPU P.O., KOLENCHERRY, REPRESENTED BY MOTHER, IST APPELLANT. 3. ANNAMMA, M/O. LATE NOBLE, PUTHENPURACKAL HOUSE, KADAYIRUPPU P.O. KOLENCHERRY. BY ADV. MR.T.K.KOSHY RESPONDENTS: RESPONDENTS 1 & 3 1. P.P.MATHAI, PERUVELIKUDIYIL HOUSE, MEKKADAMBU P.O., VALAKOM. 2. THE NATIONAL INSURANCE CO.LTD., KALLUNKATHARA BUILDINGS, KOZHENCHERRY ROAD, PATHANAMTHITTA. R2 BY ADV. SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1222 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of December, 2009 J U D G M E N T Ramachandra Menon, J 1. Appeal is for enhancement of the compensation awarded by the tribunal, in respect of the death of a 35 years old youth, which occurred on 22/03/2003. 2. The deceased was riding a motor cycle along the Kolenchery-Muvattupuzha road. While so, a Swaraj Mazda Vehicle bearing Registration No.KL-5E/4089 came from the opposite direction and knocked him down, causing serious injuries, leading to his death, which in turn led to the claim petition preferred by the widow, minor children and mother of the deceased. 3. The owner and driver of the Swaraj Mazda vehicle did not contest the matter and were set ex parte. The claim was resisted only by the third respondent/insurance company. The claimants adduced evidence by examining one of the employees of the deceased (who was stated as running a M.A.C.A. No. 1222 of 2007 2 hotel business), as PW1and by producing and marking Exts.A1 to A14. No evidence, either oral or documentary, was adduced by the insurer, despite the sanction given to have wider evidence under Section 170 of Motor Vehicles Act. 4. After going through the materials on record and also taking note of the submissions made from the part of the third respondent/insurer admitting the insurance, the Tribunal rendered a finding that the accident was solely because of the negligence on the part of the driver of the Swaraj Mazda vehicle. 5. With regard to the quantum, the case of the claimants was that, the deceased was running a hotel, wherein several persons were employed and that he was earning a monthly income of Rs.10,000/-. To substantiate the claim, one of the employees was examined as PW1, who deposed before the Tribunal that he was being paid Rs.100/- per day. Various other documents were also produced from the part of the claimants to show that M.A.C.A. No. 1222 of 2007 3 substantial income was being generated by the deceased, such as: Ext.A8 licence issued by the legal authority for conducting the hotel business; Ext.A9 pass book issued in the name of the deceased, in respect of the account maintained with the Federal Bank; Ext.A10 Telephone Bill, showing the monthly telephone charges; Ext.A11 electricity bill etc. 6. Learned counsel for the appellants submits that these documents are very much relevant to substantiate the probable income of the deceased as stated in the claim petition, which however, was given a 'go bye' and only a sum of Rs.2,500/- was reckoned by the Tribunal for calculating the loss of dependency. Considering the age of the deceased as 35 years, the appropriate multiplier was fixed as '16' and a sum of Rs.3,20,000/- was awarded towards the compensation for loss of dependency. Over and above the said amount, the Tribunal awarded Rs.7,785/- as the medical expenses; Rs.2,500/- towards the transportation charges, Rs.5,000/- towards the funeral expenses, Rs.2,500/- M.A.C.A. No. 1222 of 2007 4 towards the loss of estate, Rs.10,000/- towards pain and suffering, another Rs.10,000/- towards loss of consortium to the first appellant/widow , Rs.15,000/- towards the love and affection etc, thus granting a total sum of Rs.3,72,785/- which was directed to be satisfied by the third respondent/insurer, with interest at the rate of 7% per annum. 7. The learned counsel appearing for the insurance company submits that no legally acceptable evidence was adduced for awarding any higher compensation, simultaneously asserting that the documents produced and marked as Ext.A9 to Ext.A13 were not properly proved from the part of the claimants. It is also pointed out that the deceased was never an 'income tax payer' and further that none of the claimants did choose to mount the box, to depose the actual facts and figures, apprehending the adverse consequences in the cross examination. 8. After going through the facts and figures as discussed by the Tribunal and after hearing both the sides, M.A.C.A. No. 1222 of 2007 5 we find that there is considerable force in the submissions made by the learned counsel for the appellants. The very fact as to the running of the hotel by the deceased (on a strength of Ext.A8 licence issued by the concerned Panchayat), the engagement of several employees like PW1, telephone connection as well as the electricity connection etc., are not seriously disputed from the part of the third respondent/insurer. Despite the opportunity sought for and obtained by the insurer to have wider defence under Section 170 of the Motor Vehicles Act, it was not properly utilised by the insurance company, by examining any witness or by producing any documents to prove the actual facts and figures. Thus, going by undisputed facts and figures and also considering the minimum requirements in running the establishment of hotel, by the deceased, we consider it fit and proper to have the monthly income of the deceased be reckoned as Rs.5,000/-. On reworking the compensation for the loss of dependency, adopting the multiplier of ‘16’, we find that the claimants are entitled to M.A.C.A. No. 1222 of 2007 6 have a further sum of Rs.3,20,000/- as the balance compensation payable under this head. We find that the amounts awarded by the Tribunal under all other heads are very much adequate and do not require any modification. 9. In the result, we award a further sum of Rs.3,20,000/- as the balance compensation payable to the appellants in respect of the death of the deceased. The amount as above will carry interest at the rate of 7% per annum from the date of the petition and the due amount shall be satisfied by the third respondent/insurer, as expeditiously as possible, at any rate within 2 months from the date of receipt of a copy of this Judgment. Appeal is allowed in part, no cost. P.R.RAMAN, JUDGE P.R. RAMACHANDRA MENON, JUDGE nl