IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 MFA.No. 241 of 2002(E) ---------------------- OPMV.1178/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANTS: PETITIONERS ------------------------- 1. PAREED KUNJU.K.M. S/O.MEERA KHAN RAWTHER MANIANKULAM HOUSE,PUZHAVATHU P.O.,CHANGANACHERRY 2. K.S.HAMSA BEEVI,W/O.PAREED KUNJU, MANIANKULAM HOUSE,PUZHAVATHU P.O.,CHANGANACHERRY. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENTS: RESPONDENTS -------------------------- 1. MR.MADHUSUDHANAN S/O.SRI.GOPALA PILLAI, KOLIAMALA HOUSE,MULEPLAVU,CHERUVALLY P.O.,MANIMALA 2. SANTHOSHKUMAR S/O.SRI.PADMANABHA PILLAI, THAZHATHEDATHU HOUSE,CHIRAKKADAVU P.O., KOTTAYAM DISTRICT 3. THE ORIENTAL INSURANCE CO.LTD., THIRUVALLA. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON 28/08/2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.No. 241 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of August, 2009 REVISED JUDGMENT Joseph Francis, J. This appeal is filed by petitioners 1 and 2 in O.P.(M.V.) No. 1178 of 1994 on the file of the Motor Accidents Claims Tribunal, Kottayam. Respondents 1 to 3 herein are respondents 1 to 3 in that Original Petition, which was filed under Section 166 of the M.V. Act. The first petitioner is the father and the second petitioner is the mother of deceased Hafeez, who died in a motor accident, which took place on 29.10.1993 at about 1.15 p.m. 2. The allegation is that, the deceased was travelling in a bus bearing No. KL 6/4747 from Kottayam to Changanacherry through the M.C. Road and when the bus reached at Pallam in front of St. Paul's Church, the bus hit M.F.A.No. 241 of 2002 2 on an electric post due to the rash and negligent driving of the first respondent, who was driving the bus. The deceased sustained serious injuries and he succumbed to the injures at the Medical College Hospital, Kottayam. The second respondent is the owner and the third respondent is the insurer of the bus. In the Claims Tribunal, the petitioners claimed Rs.7,37,000/- as compensation, which was limited to Rs. 7 lakhs. 3. Before the Claims Tribunal, respondents 1 and 2 remained ex parte. The third respondent filed written statement admitting the policy of the bus and contended that the accident occurred not due to the negligence of the first respondent and that the compensation claimed is excessive. 4. In the Claims Tribunal, PW1 was examined and Exts.A1 to A25 were marked. The learned Tribunal, on considering the evidence, allowed the petition and an award was passed allowing the petitioners to realise a sum of Rs.2,55,296/- as compensation with 9% interest p.a. from the date of the petition, i.e. 6.6.1994, M.F.A.No. 241 of 2002 3 till the date of realisation and proportionate cost from the respondents and the third respondent was directed to deposit the amount, being the insurer. Being dissatisfied with the quantum of compensation awarded, the petitioners filed this appeal before this Court. This Court, as per judgment dt. 9.3.2006, arrived at a conclusion as follows: “We agree with the learned counsel for the appellant that the Tribunal went wrong in assessing the loss of income correctly in this case. It is seen from Exts.A14 and A15 that the deceased would have earned an annual income of atleast 3500 SR. Taking into account the conversion rate of Saudi Riyal at the relevant point of time, the monthly income of the deceased would have been at least Rs.42,000/- that means, Rs.5,04,000/- per year. 1/3rd of Rs.42,000/- will be Rs.14,000/- and the annual contribution to the appellants/parents would be Rs.3,36,000/- Thus the total contibution for the parents will be Rs.36,96,000/- Taking into account M.F.A.No. 241 of 2002 4 the fact that the entire amount payable for a period of 11 years has to be paid by the insurer in advance, further deduction can be made from the amount thus arrived at. Even then, the total compensation payable for loss of income towards the share of the parents will be much higher than Rs. 7 lakhs claimed by the appellants as total compensation. We would have allowed enhancement of compensation above Rs.7 lakhs. However, since the appellants had limited their claim to Rs.7 lakhs, we are of the opinion that atleast that much amount shall be awarded as compensation to the appellants. Hence, in modification of the award passed by the Tribunal below, we allow the appellants to realise the sum of Rs. 7 lakhs with interest @ 9% per annum from the date of the claim petition. 3rd respondent shall deposit the above amount, less amount, if any, already deposited in the Tribunal.” M.F.A.No. 241 of 2002 5 5. After the disposal of this appeal, the first appellant died. The second appellant, who is the mother of the deceased, filed Civil Appeal No.1675 of 2008 before the Apex Court and as per judgment dt. 29.2.2008, the Apex Court allowed that appeal with the following observations: “ Having regard to the fact that the appellants have paid the deficit Court fees, the impugned judgment is set aside and the matter is remitted to the High Court for consideration as to whether the appellants herein may amend their claim petition or not. It is made clear that all the contentions of the parties shall remain open. The appeal is disposed of with the aforementioned direction.” 6. As per the above direction, the second appellant filed I.A.No. 912 of 2008 before this Court for amendment of the Original Petition, which was allowed by this Court as per order M.F.A.No. 241 of 2002 6 dt.25.6.2009 and O.P.(M.V) No. 1178 of 1994 was amended and the compensation claimed was enhanced as Rs.36,96,000/- 7. Heard the learned counsel for the second appellant and the learned counsel for the third respondent. 8. The learned counsel for the appellants submitted that the compensation awarded by the Tribunal is on the lower side and that the learned Tribunal ought to have found that the converted value of 3500 SR is equivalent to Rs.42,000/- at that time and that the compensation for loss of dependency ought to have been assessed on that basis. Whereas the learned counsel for the third respondent, Insurance Company, supported the award of the Tribunal. He submitted that there is no document showing that the deceased has passed the B.Tech. Examination. The learned counsel for the third respondent contended that Exts.A14 and A15 cannot be relied on for the purpose of assessing the income of the deceased as that documents are not properly proved. More over, along with Exts.A14 and A15 the postal covers are not produced. M.F.A.No. 241 of 2002 7 These contentions have no force, in view of the fact that while examining the first petitioner as PW1, nothing was brought out to doubt the genuineness of Exts.A14 and A15. 9. The first appellant is the first petitioner, who is the father and the second appellant is the second petitioner, who is the mother of deceased Hafeez. At the time of the accident, the deceased was aged 23 years and he was unmarried. The first petitioner was examined as PW1. He deposed that at the time of accident Hafeez has passed B.Tech. Examination from Manipal Engineering College in First Class with Distinction. This fact cannot be disputed in view of the relevant records produced by the appellants. PW1 deposed that the Uncle of Hafeez made arrangements for taking Hafeez to Saudi Arabia and that Hafeez obtained Exts.A14 appointment letter dated 10.9.1993 appointing him as Manager in Computer in IBN Shahman Contracting Establishment at Damam in Saudi Arabia, which offered basic pay of 3500 SR, besides transportation allowances of three months' M.F.A.No. 241 of 2002 8 basic pay per year. Ext.A15 is the Power of Attorney dt.10.10.1993 issued from Jamal Mohameed Al Madan Trading Establishment of Saudi Arabia agreeing to give employment to Hafeez as Executive Engineer with a monthly salary of 8000 SR with an yearly increment. 10. While disposing of this appeal as per judgment dt.9.3.1996, this Court accepted Exts.A14 and A15 and found that the deceased would have earned an annual income atleast 3500 SR and on taking into account the conversion rate of Saudi riyal at the relevant time, the income of the deceased would have been atleast Rs.42,000/- that means, income of Rs.5,04,000/- per year. One-third of Rs.42,000/- will be Rs.14,000/- and the annual contribution for the appellants will be Rs.3,36,000/- The appellants were aged between 50 - 52 and therefore 11 was taken as the suitable multiplier and this Court assessed the total dependency compensation as Rs.36,96,000/- M.F.A.No. 241 of 2002 9 11. In the decision reported in Raj Rani v. Oriental Insurance Co. Ltd. (JT 2009 (8) SC 325) it was held that the practice of deduction for lump sum payments from the amount of compensation awarded in motor accident cases by the Tribunals have been disapproved by the Apex Court in several decisions. Since the genuineness of Exts.A14 and A15 cannot be doubted, we are of the view that the monthly income of the deceased can be assessed as Rs.42,000/- It has come out in evidence that petitioners 1 and 2 were in service and they were getting monthly pension. Therefore, it cannot be said that the petitioners would be fully depending on the deceased for their livelihood. 12. The deceased was unmarried at the time of his death. If he was alive, he would have in the normal course got married in the near future. After marriage, the deceased would have had his own spouse and family to look after and would not contribute much amount to the parents. Therefore, the dependency of the petitioners should not be taken at more than one-third of the M.F.A.No. 241 of 2002 10 income of the deceased. Calculating on that basis, the loss of dependency per month for the petitioners would have Rs. 14,000/- Now the first petitioner is no more and the second petitioner is not claiming any amount as the legal heir of deceased first petitioner. Therefore, the monthly dependency of the second petitioner can be assessed as Rs. 7,000/- per month. Considering the facts and circumstances of the case, 11 can be taken as the suitable multiplier. Calculating on that basis the dependency compensation payable to the second petitioner can be assessed as Rs.9,24,000/- 13. In addition to that amount, the second appellant is entitled to get Rs.500/- towards transportation charges to the hospital, Rs.500/- towards clothing, Rs.2,000/- towards funeral expenses and Rs.10,000/- towards compensation for pain and sufferings awarded by the Tribunal. Thus, in total the second appellant is entitled to get an amount of Rs.9,37,000/- as compensation. M.F.A.No. 241 of 2002 11 14. Accordingly this appeal is allowed in part. The second appellant is allowed to realise an amount of Rs.9,37,000/- together with interest at the rate of 7.5% p.a. from the date of the petition till the date of realisation from the third respondent. The parties are directed to suffer their respective cost in this appeal. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm