IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 MACA.No. 59 of 2004() --------------------- OPMV.2599/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANTS/PETITIONERS: ------------------------------------- 1. GRACY BABU @ ANNAMMA, KUNNAPPALLIL, KOOVAPPALLY. 2. MANU BABU, REP. BY GRACY BABU, DO. 3. BINU BABU, REP. BY GRACY BABU, DO. 4. P.P. APREM, DO. 5. MARY APREM, DO. (PETITIONERS 2 AND 3 MINORS ARE REPRESENTED BY THEIR MOHTER THE 1ST PETITIONER AS NEXT FRIEND) BY ADV. SMT.BETTY K.ALUKKA SMT.MINI ELIZABETH GEORGE RESPONDENT(S): RESPONDENTS: --------------------------- 1. BIJU MATHEW, THANIPOTHIYIL, PROPOSE P.O., ERUMELY (OWNER). 2. K.S. SHAJI, S/O. SULAIMAN, KULATHUMKAL, THUMARAMPARA VIA., ERUMELY. 3. UNITED INDIA INSURANCE CO. LTD., KOTTAYAM. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~==~=~=~=~==~=~=~=~==~=~=~=~== M.A.C.A. No. 59 of 2004 =~=~=~=~==~=~=~=~==~=~=~=~==~=~=~=~== Dated this the 7th day of April, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimants in O.P.(MV) No.2599 of 1995 of the Motor Accidents Claims Tribunal, Pala challenge the judgment and award of the Tribunal dated July 9, 2003, awarding a compensation of Rs.3,15,000/- for the loss caused to the claimants, on account of the death of Babu Ephrem in a motor accident. 2. The facts leading to this appeal, in brief, are these:- Deceased Babu Ephrem was aged 27 at the time of the accident and used to earn Rs.3,000/- per month, as an auto-rickshaw driver. First claimant is his wife, claimants 2 and 3 are his children and claimants 4 and 5 are his parents. On March 19, 1995 at about 8.45 a.m. Babu Ephrem was driving his auto-rickshaw bearing registration No.KL-5A/3375 from Koovappally to 26th Mile. When he MACA 59/2004 2 reached at Kulappuram, a bus bearing registration No.KEK 6332, driven by the second respondent, came at a high speed and dashed against the auto-rickshaw. The claimant sustained serious injuries and succumbed to the injuries sustained on March 20, 1995. According to the claimants, the accident occurred due to the rash and negligent driving of the offending vehicle by the second respondent. The first respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending vehicle are jointly and severely liable to pay the compensation to the claimants who are the legal heirs and dependents of the deceased. 3. Respondents 1 and 2, owner and driver of the offending bus, remained absent and were set ex parte by the Tribunal. The third respondent Insurance Company filed a written statement, admitting the policy and further contending that the accident occurred due to the negligence of the deceased. 4. PWs.1 to 3 were examined and Exts. A1 to A10 MACA 59/2004 3 were marked on the side of the claimants. On an appreciation of the evidence, the Tribunal awarded a compensation of Rs. 3,15,000/- with interest at the rate of 9% p.a. from the date of petition till realization. The claimants have come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the appellants/claimants and learned counsel for the third respondent, 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 Rs.3,15,000/-. The break up of the compensation awarded is as under:- Loss of dependency : Rs.2,72,000/- MACA 59/2004 4 Transportation : Rs.1,000/- Funeral expenses : Rs.2,000/- Pain and suffering : Rs.10,000/- Loss of consortium and loss of : Rs.30,000/- love and affection. ------------------ Rs.3,15,000/- ======== 8. The learned counsel for the appellants/claimants sought enhancement of the quantum of compensation awarded for loss of dependency, loss of love and affection and loss of consortium. We find force in the above contention. The Tribunal took the monthly income of the deceased as Rs.2,000/-, deducted g 1/3rd for his personal expenses and awarded Rs.2,72,000/- for the loss of dependency. The claimant was an auto-rickshaw driver. Ext.A7 is the copy of his driving licence. Even, at the time of the accident, he was driving the auto-rickshaw. Therefore, we feel that his monthly income can reasonably be fixed at Rs.3,000/-. 9. The Tribunal deducted 1/3rd for his personal expenses. In the light of the principles laid down in Sarala MACA 59/2004 5 Verma & Ors. V. Delhi Transport Corporation & Anr. (AIR 2009 SC 3104), when the number of dependent family members is 4 to 6, 1/4th of his income can be deducted towards his personal expenses. In the present case the claimants are the wife, minor children and parents of the deceased. There is no evidence to show that the claimants 4 and 5 have any income of their own. Therefore, all the five claimants are the dependents of the deceased. That being so, in the light of the principles laid down in Sarala Verma & Ors. Case (Supra), 1/4th of his income can be deducted for his personal expenses. Thus, in this case his annual contribution to the family would come to Rs.27,000/- (Rs.3,000/- x 12 – Rs.9000/-). 10. As regards the multiplier, the Tribunal took the multiplier of 17. Ext.A6 the first page of his S.S.L.C. Book shows that his date of birth is February 4, 1968. Therefore, the deceased was aged 27 at the time of the accident. That being so, the correct multiplier that can be applied is 18, as shown in the Second Schedule to the Motor Vehicles Act. MACA 59/2004 6 Thus, for the loss of dependency, the claimants are entitled to a compensation of Rs.4,86,000/- (Rs.27,000/- x 18). Thus, on this count, the claimants are entitled to an additional compensation of Rs.2,14,000/-. The Tribunal awarded Rs.30,000/- for the loss of consortium to the first claimant and for the loss of love and affection for claimants 2 and 3, which appear to be very low. The first claimant, widow, was aged 27 at the time of the accident. Therefore, towards loss of consortium, she is entitled to Rs.30,000/-. Towards loss of love and affection, taking into consideration the tender age of claimants 2 and 3, we feel that a compensation of Rs.10,000/- each to the claimants 1 to 3 i.e., total Rs.30,000/- would be reasonable. As the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. Regarding the apportionment of the compensation amount and disbursement of the same, the direction of the Tribunal will stand. 9. In the result, the claimants are entitled to an MACA 59/2004 7 additional compensation of Rs.2,44,000/-. They are entitled to interest at 9% per annum from the date of petition till realization and proportionate costs. The third respondent, being the insurer of the offending vehicle, shall deposit the amount within two months from the date of receipt of copy of this judgment before the Tribunal with notice to the claimants. In the result, the appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn