IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 MACA.No. 1905 of 2005() ----------------------- OPMV.1117/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANTS/PETITIONERS: ------------------------------- 1. AMIANA, W/O.LATE ABOOBACKER, ELAYI KORAMBAYIL HOUSE, PAPPINIPPARA P.O. ANAKKAYAM, MANJERI. 2. ASHRAF, S/O.LATE ABOOBACKER, DO. DO. 3. NAZEEMA, D/O.LATE ABOOBACKER, DO. DO. 4. BASHEER, S/O.LATE ABOOBACKER, DO. DO. 5. UMMER FAROOK, S/O.LATE ABOOBACKER, DO. DO. 6. SAMEER, S/O.LATE ABOOBACKER, DO. DO. 7. SHIHABUDHEEN, S/O.LATE ABOOBACKER, DO. DO. 8. KADEEJA, W/O.KUNHIMOHAMMED, DO. DO. 9. MOHAMMEDKUTTY, S/O.KUNHIMOHAMMED, DO. DO. 10. PATHUMMA, D/O.KUNHIMOHAMMED, DO. DO. 11. KUNHIMOIDEEN, S.O.KUNHIMOHAMMED, DO. DO. 12. AYISHA, D/O.KUNHIMOHAMMED, DO. DO. 13. MARIYUMMA, D/O.KUNHIMOHAMMED, DO. DO. 14. SADIQUE, S/O.KUNHIMOHAMMED, DO,. DO. MACA : 1905/05 15. UBAID, S/O.KUNHIMOHAMMED, DO. DO. BY ADV. SRI.BABU S. NAIR RESPONDENT/3RD RESPONDENT: ------------------------------------ ORIENTAL INSURANCE CO.LTD., MANJERI, MALAPPURAM DISTRICT. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. ----------------------------------------------- M.A.C.A No. 1905 OF 2005 ----------------------------------------------- Dated this the 13th day of March, 2009 JUDGMENT BASANT, J Claimants before the Tribunal are the appellants before us. They claimed an amount of Rs.3 lakhs as compensation for the loss suffered by them on account of the death of the deceased in a motor accident which took place on 13.05.99. The claimants are the wife, five male children and a daughter of the deceased. The mother and siblings of the deceased have also joined in the application as claimants. The deceased claimed to be a fruit merchant. He was earning allegedly an annual income of Rs.38,000/-. The wife of the deceased is aged 43 years, five of the six children have already attained majority and they are of the age group 19 to 27 years. The sixth child/son is a minor aged 15 years. The mother of the deceased is aged 65 years. Deceased had succumbed to the injuries on the date of accident itself. Before the Tribunal the fifth claimant examined himself as PW1. Exts.A1 to A6 were marked. 2. The Tribunal on an anxious consideration of all the relevant inputs proceeded to award an amount of Rs.1,81,333/- as MACA:1905/05 -:2:- compensation along with interest at the rate of 6% per annum as per details given below. 1. Transportation to hospital :Rs. 1,000/- 2. Funeral expenses :Rs. 2,000/- 3. Loss of consortium :Rs. 5,000/- 4. Compensation for dependency :Rs.1,73,333/- (20000x13x2/3) ------------------- Total :Rs.1,81,333/- =========== 3. The appellants claim to be aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant assails the impugned award on various grounds. First of all it is contended that, interest is awarded only at the rate of 6% per annum and this is inadequate. Relying on precedents it is contended that, at any rate, interest must have been awarded at least at the rate of 7.5%. We agree with the learned counsel for the appellants. 4. Learned counsel for the appellants next contends that no amount has been awarded under the head of loss of love and affection. The deceased is shown to be aged about 50 years. He has left behind him his mother, wife and six children. We are MACA:1905/05 -:3:- satisfied that award of an amount of Rs.10,000/- under this head shall eminently serve the ends of justice. Counsel contends that the amount of Rs.5,000/- awarded for loss of consortium to the wife aged 43 years is insufficient. The spouses were aged 50 and 43 years and in any view of the matter, the amount of Rs.5,000/- under the head of loss of consortium deserves and warrants upward modification, contends the counsel. We agree with the learned counsel. In the circumstances of the case, we are satisfied that, award of a total amount of Rs.20,000/- under the head of loss of consortium shall serve the ends of justice eminently. 5. Counsel next contends that no amount whatsoever is awarded under the head of loss of estate. The deceased has as many as eight persons depending on him. 1/3rd of the total income has been set apart for the personal expenses of the deceased. Savings from that would necessarily have accrued to the estate. Even under the Second Schedule, without any better evidence, Rs.2,500/- is permitted to be awarded as compensation for loss of estate. We are satisfied that the said amount(Rs.2,500/-) can be MACA:1905/05 -:4:- awarded as compensation for loss of estate. 6. It is true that death had taken place on the date of accident itself. But no compensation is seen awarded under the head of pain and suffering. This obviously is an inadvertent omission. We are satisfied that an amount of Rs.7,500/- under this head would be reasonable. 7. The main plank of the challenge is that the multiplicand reckoned is too meagre and painfully low. An amount of Rs.20,000/- per annum has been reckoned as the actual income. The learned counsel points out that going by the profession tax paid by the appellant under Ext.A6, his annual income must be reckoned as Rs.38,000/-. The Tribunal erred grossly in reckoning only Rs.20,000/- as annual income. The appellant was a fruit merchant and an idea about his probable earnings can be drawn from the fact that eight souls - mother, wife and six children - were dependent on him. We agree with the learned counsel that multiplicand reckoned is not sufficient and adequate in the circumstances of the case. 8. The learned counsel for the Insurance Company alertly MACA:1905/05 -:5:- points out that the deceased is shown to be a person of the age group of 50 to 55 years. Under the Second Schedule 11 is the multiplier prescribed for persons of the age group, 50 to 55 years, when it comes to permanent disablement and 10 is the multiplier adopted in death cases. In these circumstances, at any rate, the award of 13 as the multiplier is not justified, contends the counsel. The averments show that the deceased was aged 50 years. The burden is definitely on the claimants to show the correct age whether he was of the age group 45 to 50 or 50 to 55 years. In the absence of better and satisfactory evidence, we are satisfied that 11 as prescribed in the Second Schedule must have been reckoned as multiplier. We are further satisfied that considering the materials available about the income and the broad probabilities that Rs.2,750/- can be reckoned as the monthly income/multiplicand. 9. The above discussions lead us to the conclusion that the appellant is entitled for the following further amounts as compensation in addition to the amounts already awarded by the Tribunal. MACA:1905/05 -:6:- 1. Loss of love and affection :Rs.10,000/- (no amount awarded) 2. Loss of consortium :Rs. 15,000/- (20,000 minus 5,000) 3. Loss of estate :Rs. 2,500/- (no amount awarded) 4. Pain and suffering :Rs. 7,500/- (no amount awarded) 5. Loss of dependency :Rs.68,667/- (2750x12x11x2/3 =2,42,000 minus 1,73,333) ------------------- Total :Rs.1,03,667/- =========== 10. We further direct that the entire amount of compensation shall carry interest at the rate of 7.5% per annum from the date of the petition till payment. 11. This appeal is in these circumstances allowed in part to the above extent. R. BASANT, JUDGE C.T. RAVIKUMAR, JUDGE ttb MACA:1905/05 -:7:- MACA:1905/05 -:8:-