IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 MACA.No. 85 of 2005() --------------------- OPMV.390/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANTS/PETITIONER IN OP(MV). ---------------------------------------------- 1. ROSILY, W/O. DAVIS, THALIYAN HOUSE, MECHIRA P.O., THRISSUR DISTRICT. 2. SIYA DAVIS, D/O. LATE DAVIS. THALIYAN HOUSE, MECHIRA P.O., THRISSUR DISTRICT. 3. ELIYAKUTTY, W/O. KOCHAPPAN, THALIYAN HOUSE, MECHIRA P.O., THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENT IN OP(MV). ------------------------------------ 1. WINSON JOSEPH, S/O. JOSEPH, VADAKKUNCHERY HOUSE, MANJAPRA P.O. 2. MANAGER, NEW INDIA INSURANCE CO. LTD., ANGAMALY. ADV. SRI.P.MURALEEDHARAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. ```````````````````````````````````````````````````` M.A.C.A. No. 85 OF 2005 ```````````````````````````````````````````````````` Dated this the 1st day of June, 2009 J U D G M E N T Joseph, J. The appellants are the claimants under section 166 of the Motor Vehicles Act. An amount of Rs.2,07,000/- has been awarded with interest at the rate of 6%. 2. There is no dispute that the deceased Davis, who is the husband of the first appellant, father of the second appellant and son of the third appellant, died as a result of the negligent driving of the vehicle by the first respondent. There is also not much dispute that the deceased was a tapper. The income of the deceased is reckoned as Rs.1,500/- per month. This is the bone of the contention. Appellant contends the deceased was proved to be in receipt of higher income on the basis that he was employed by PW2, who was having a rubber estate of 600 rubber trees. PW2 has spoken that the appellant was tapping his rubber trees. The further complaint is that towards loss of consortium a low amount of Rs.5,000/- has been granted. It is further pointed out MACA.85/05 : 2 : that the Tribunal has erred in awarding only Rs.5,000/- towards loss of love and affection. Further it is pointed out that though the death is instantaneous, the amount of pain and suffering at Rs.1,500/- is inadequate. The learned counsel on behalf of the Insurance company would submit that the Tribunal was justifying in awarding a compensation calculating income at Rs.1,500/- having regard to the deposition of PW2 itself. The Tribunal has held as follows: “ According to the petitioners deceased was a rubber tapper obtaining Rs.170/- as wages per day. His monthly income was stated to be Rs.5,000/-. PW2 was the employer of deceased Davis. PW2 filed a proof affidavit. He was cross examined. According to PW2 he was the owner of more than 3 acres of land. There was more than 600 rubber trees in his estate. Davis was his tapper. Most of his rubber trees are R.R.I.M. 105 variety. PW1 was the widow of deceased Davis. According to PWs 1 and 2 Davis was tapping 600 rubber trees every day. It cannot be believed. Usually RRIM rubber trees will be tapped alternatively. If RRIM 105 rubber trees were being tapping daily the trees will be easily destroyed and damaged. The direction of the Rubber Board, the rubber trees should be tapped only on the MACA.85/05 : 3 : alternative days. So the depositions of PWs 1 and 2 that Davis was tapping 600 rubber trees per day cannot be believed. No employer will allow a tapper to tap 600 rubber trees per day. It is not practical to tap 600 rubber trees per day. Hence I consider that the deceased was tapping only 300 rubber trees per day and the deceased was tapping the rubber trees alternatively.” 3. Learned counsel for the appellant would submit that even if tapping is done only on 300 trees per day, the amount will be more than Rs.100/- per day at 50 paise per tree. He also pointed out that the deceased had maintained a family consisting himself and the appellants ie, 4 members were being maintained in the year 2001. 4. Having heard the counsel for the parties, we are of the view that in the light of the totality of the facts, we can safely fix an amount of Rs.1,800/- per month as monthly income of the deceased. We must also bear in mind the year of death is 2001. Further we feel that the first appellant should have been awarded a sum of Rs.10,000/- towards loss of consortium. We also feel that a reasonable sum can be awarded towards pain and suffering. We award a sum of Rs.3,500/- more towards pain and MACA.85/05 : 4 : suffering. We are also not satisfied in the award of Rs.5,000/- towards loss of love and affection. Accordingly, we award Rs.5,000/- more towards loss of love and affection. 5. As a result of this discussion, we find that the appellants would be entitled to a sum of Rs.2,56,000/- towards dependency. Towards loss of dependency the further amount would be Rs.38,400/-. Added to the same, the appellant would be entitled to a further sum of Rs.13,500/-. Thus, a total sum of Rs.51,900/- rounded to Rs.52,000/- is awarded . Accordingly, we allow the appeal in part. We allow the appellant to realise a sum of Rs.52,000/- more from the respondents which will carry interest at the rate of 7.5% from the date of the petition till the date of realisation. We feel merit on the complaint of the appellant that the interest awarded is low. Accordingly, the amount awarded by Tribunal will also bear interest at 7.5% instead of 6%. Sd/- (K.M.JOSEPH, JUDGE) Sd/- (M.L. JOSEPH FRANCIS, JUDGE) aks