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 8TH JULY 2010 / 17TH ASHADHA 1932 MACA.No. 2852 of 2008() -------------------------------- AGAINST THE ORDER DATED 07/07/2007 IN OPMV.789/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): PETITIONERS ------------------------------------------- 1. HAIRUNEESA, W/O. MOHAMMED IBRAHIM, RESIDING AT 20/259, PUDUPPALLI STREET,NOORANI, PALAKKAD. 2. FASLA, D/O. MOHAMMED IBRAHIM,RESIDING AT 20/259, PUDUPPALLI STREET,NOORANI, PALAKKAD. 3. FABITHA, D/O. MOHAMMED IBRAHIM,RESIDING AT 20/259, PUDUPPALLI STREET,NOORANI, PALAKKAD. 4. AMINABEE, W/O. SULAIMAN, RESIDING AT 20/259, PUDUPPALLI STREET, NOORANI, PALAKKAD. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU SRI.RAJAN VELLOTH SRI.BENOJ C AUGUSTIN RESPONDENT(S): RESPONDENTS ------------------------------------------------ 1. P. PALANIVEL, S/O. MARAPPAN, 26 NIT BATA RAILWAY CROSSING, HARIDABAD, HARIYANA STATE. 2. G. MURUGAIAH, S/O. GOVINDAN, 38 PILLAIYAR KOIL STREET, INDIAR NAGAR, BODUPATHI.P.O NAMAKKAL, TAMIL NADU. 3. THE NEW INDIA INSURANCE COMPANY LTD.,NAMAKKAL DIVISIONAL OFFICE, 2 PARAMATHY ROAD, NAMAKKAL - 637 001 4. N. SELVI, 27 SENNIMALA STREET, PULIYAMPATTI, SAKTHI, (SATHYA MANGALAM), TAMIL NADU. 5. P. MAYILSWAMY, S/O. PONNUSWAMY,2/30, THOTTIPALAYAM, DESHIPALAYAM, SAKTHI, (SATHYA MANGALAM), TAMIL NADU. 6. THE ORIENTAL INSURANCE COMPANY LIMITED,COIMBATORE. ADV. SRI. LAL GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ---------------------------------------------- M.A.C.A. NO. 2852 OF 2008 ---------------------------------- DATED THIS THE 8TH DAY OF JULY, 2010 JUDGMENT -------------- Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P(MV) No. 789/2001 of Motor Accidents Claims Tribunal, Palakkad who are the wife, children and mother of the deceased Mohammed Ibrahim challenge the judgment and award of the Tribunal dated July 7, 2007 awarding a compensation of Rs. 3,59,560/- for the loss caused to them on account of the death of deceased Mohammed Ibrahim in a motor accident. 2. The facts leading to this appeal in brief are these: Deceased Mohammed Ibrahim was a driver and used to earn Rs.5,000/-per month, according to the claimants. Claimants are his wife, children and mother. On February 7,2001 the deceased was riding the motor cycle bearing registration No. TN-55/D/5590 from Palakkad to Coimbatore along National highway 47. His son Nadir was pillion riding on the motor cycle. M.A.C.A. NO. 2852 OF 2008 2 At about 3.15 P.M when they reached Attapalam near Puthussery, a tempo van bearing registration No.TN 36/B. 6826 collided with a lorry bearing registration No. HR 29/9647 and capsized over the motor cycle ridden by the deceased. The deceased and his son sustained serious injuries and both of them succumbed to the injuries sustained while undergoing treatment in the hospital. According to the claimants, accident occurred due to the negligence of respondent Nos. 2 and 5, the drivers of the lorry and the tempo van respectively. Respondents 1 to 3, as the owner, driver and insurer of the lorry and respondents 4,5 and 6 as the owner, driver and insurer of the tempo van are jointly and severally liable to pay compensation to the claimants, who are the dependents and legal heirs of the deceased. Claimants claimed a compensation of Rs. 7,00,000/-. 3. Respondents 1,2,4 and 5 were remained absent and were set exparte by the Tribunal. Only the insurers of the vehicles viz. respondents 3 and 6 contested the matter. The 3rd respondent, the insurer of the lorry filed a written statement admitting the policy and further contended that the accident M.A.C.A. NO. 2852 OF 2008 3 occurred due to the negligence of the deceased as well as that of the 5th respondent, the driver of the tempo van. 4. 6th respondent, insurer of the tempo van filed a written statement admitting the policy and further attributed the negligence to the deceased as well as that of the 2nd respondent, the driver of the lorry. 5. This O.P was jointly tried along with O.P (MV) No.699/01 and a common award was passed. PW1 was examined and Exts.A1 to A10 were marked on the side of the claimants. No evidence was adduced by the contesting respondents. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the 2ndrespondent and awarded a compensation of Rs. 3,59,560/- with interest @ 7.5% per annum from the date of petition till realization and a cost of Rs. 1000/- against respondents 1 to 3. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. Heard the counsel for the appellants/claimants and the counsel for the Insurance Companies. M.A.C.A. NO. 2852 OF 2008 4 7. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of respondent No. 2, driver of the lorry is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimants are entitled to any enhanced compensation. 8. The Tribunal awarded a total compensation of Rs. 3,59,560/-. The break up of the compensation awarded is as under: Loss of dependency : Rs. 2,70,000.00 Medical expense : Rs. 75,052.54 Expenses incurred on other heads : Rs. 14,500.00 9. Counsel for the claimants sought enhancement of compensation for the loss of dependency, for pain and suffering endured, for loss of consortium and for loss of love and affection and for funeral expenses. 10. The Tribunal took the monthly income of the deceased as Rs. 1500/- which works out to Rs. 18,000/- per annum. After deducting 1/3 for his personal expenses, the balance amount of M.A.C.A. NO. 2852 OF 2008 5 Rs. 12,000/- was taken as his annual contribution to his family. The Tribunal adopted a multiplier of 15 as deceased was aged 55 at the time of accident and awarded a compensation of Rs. 2,70,000/- for the loss of dependency. Deceased was a driver as evidenced by Ext.A9, his driving licence. Therefore, we feel that the monthly income of the deceased can be reasonably fixed at Rs.3,000/- which works out to Rs. 36,000/- per annum. After deducting 1/3 for his personal expenses, the balance amount of Rs.24,000/- can be taken as his annual contribution to his family. The multiplier adopted by the Tribunal as 15 is not seriously challenged. Thus calculated for the loss of dependency, the claimants are entitled to a compensation of Rs.3,60,000/- (24,000 x 15). Thus, on this count, the claimants are entitled to an additional compensation of Rs. 90,000/-. 11. The Tribunal awarded only Rs.14,500/- on other heads. This being an application under Section 166 of the Motor Vehicles Act, claimants are entitled to compensation for the pain and suffering endured, loss of consortium and loss of love and affection and funeral expenses. The deceased died while M.A.C.A. NO. 2852 OF 2008 6 undergoing treatment at the hospital. Therefore, towards pain and suffering endured, we feel that a compensation of Rs. 20,000/ would be reasonable. Taking into consideration the age of the first claimant, we feel that a compensation of Rs. 10,000/- for loss of consortium would be adequate. 12. Claimants 2 and 3, children were aged 16 and 13 respectively at the time of accident. Therefore, for loss of love and affection, a compensation of Rs. 15,000/-, in our view, would be just and reasonable. For funeral expense, we feel that a compensation of Rs. 5,000/- would be adequate. Thus, claimants are entitled to an additional compensation of Rs. 35,500/- on this count. In the result, the claimants are found entitled to an additional compensation of Rs.1,25,500/-. They are entitled to interest @ 7.5% per annum from the date of petition till realization 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 M.A.C.A. NO. 2852 OF 2008 7 the above extent. The Appeal is disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE PKK