IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 MACA.No. 3193 of 2009() ----------------------- OPMV.681/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANTS : CLAIMANTS 1,4 & 5 ------------------------------- 1. SULAIKHA,W/O.(LATE)MOOSA,M CHEMBAIYL HOUSE,P.O.VALAKULAM,EDARIKODE TITUR TALUK,MALAPPURAM DISTRICT. 2. MUHAMMED SAFWAN,AGED 12 YEARS, (MINOR),S/O.(LATE)MOOSA,REPRESENTED THROUGH HIS MOTHER & NATURAL GUARDIAN,THE IST APPELLANT- SULAIKHA. 3. RUKHIYA,MOTHER OF THE DECEASED MOOSA, -DO- . BY ADV. SRI.A.KRISHNAN RESPONDENTS : CLAIMANTS ------------------------ 1. SAHINA,(NOW MAJOR),D/O(LATE)MOOSA, CHEMBAIYL HOUSE,P.O.VALAKULAM,EDARIKODE, TIRUR TALUK,MALAPPURAM DISTRICT. 2. RUBEENA (NOW MAJOR),D/O.(LATE)MOOSA, -DO- . 3. ABDUL KAREEM.P.A,S/O.AHAMMED,PANDARA ARAKKAL HOUSE,P.O.KODUR,MALAPPURAM DISTRICT. 4. P.A.SAFEER,NIRAPPIL HOUSE,P.O.KODUR, MALAPPURAM DISTRICT. 5. THE ORIENTAL INSURANCE CO.LTD.BRANCH OFFICE, JYOTHI SUPER BAZAR, THODUPUZHA. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ C.M.Appl.No.3801 of 2009 & M.A.C.A No.3193 of 2009 ------------------------------------- Dated this the 4th day of January 2009 ORDER/JUDGMENT BASANT, J. This application is to condone the delay of 185 days in filing an appeal. The appeal is directed against an award passed by the Motor Accidents Tribunal awarding compensation of Rs.4,19,000/- along with interest and cost to the claimants, the dependents of the deceased. 2. A total amount of Rs.4.19 lakhs has been awarded as per the details given below: i) Loss of consortium : Rs. 10,000/- ii) Loss of love and affection : Rs. 15,000/- iii) Funeral Expenses : Rs. 5,000/- iv) Pain and suffering : Rs. 5,000/- v) Compensation for loss of earnings : Rs.3,84,000/- (3,000 X 2/3 X 12 X 60) ........................ Total : Rs.4,19,000/- ========= C.M.Appl.No.3801 of 2009 & M.A.C.A No.3193 of 2009 2 3. The death was instantaneous. It was claimed that the deceased was a butcher by profession. The 1st claimant/wife was examined as PW1. An eye witness was examined as PW3 and the employer of the deceased, who issued Ext.A11 certificate, was examined as PW2. 4. It was claimed that Rs.250/- per day was the earnings of the deceased. In support of this, there was nothing other than the oral evidence of PW2 and Ext.A11. The court below was not persuaded to accept the oral evidence of PW2 and Ext.A11. The court below drew the presumption of prudence that Rs.3,000/- per mensem can safely be assumed to be the income of the deceased. 5. There is a delay of 185 days in filing this appeal. We are satisfied that a lenient view can be taken and the delay can be condoned. We are proceeding to dispose of the appeal straight away and we are satisfied, in these circumstances, that it is not necessary to wait for issue and return of notice to the respondents to condone the delay. 6. What is the ground of challenge? The learned counsel for the appellant contends that the quantum of income of the C.M.Appl.No.3801 of 2009 & M.A.C.A No.3193 of 2009 3 deceased reckoned at Rs.3,000/- per mensem only by the Tribunal is grossly inadequate and insufficient. According to the counsel, the very fact that the deceased was employed as a butcher and in the light of the evidence of PW2 and Ext.A11, the court below ought to have accepted that the deceased must have been earning a much higher income. 7. As stated earlier the evidence about the income comes forth only from the mouth of PW2. Ext.A11 is the certificate issued. We have gone through the evidence of PW2. He claims to be the employer. He does not have any documents to prove either that he is running a business as claimed or that the deceased was being paid amounts as per any records. There was nothing to show that the deceased was a permanent employee of PW2 also. Notwithstanding all that, the court below felt persuaded to reckon the income of the deceased as Rs.3,000/- per mensem. Multiplier was rightly reckoned at 16 and there is no dispute or quarrel on that aspect also. 8. Having gone through the entire materials available, we are not persuaded to agree that our appellate jurisdiction deserves to be invoked to interfere with the reasonable, fair and C.M.Appl.No.3801 of 2009 & M.A.C.A No.3193 of 2009 4 just finding that the monthly income in the absence of better evidence can safely be reckoned as Rs.3,000/- per mensem. That finding, which finding alone is in challenge, does not warrant interference. 9. This appeal is, in these circumstances, dismissed in limine. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-