IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 MACA.No. 1440 of 2009() ----------------------- OPMV.728/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): PETITIONER IN OP(MV) ---------------------------------- 1. POCKER HAJI, S/O. KUNHAVE, AGED 60 YRS, (FATHER OF THE DECEASED), 2. NABEESU, W/O. POCKER HAJI, AGED 55 YRS, (MOTHER OF THE DECEASED), 3. FAZALUL FARISH, D/O. LATE ABDUL MAJEED @ MAJEED, AGED 14 YEARS, (MINOR), REP.BY GRANDFATHER POCKER HAJI, (DAUGHTER OF THE DECEASED), 4. MOHAMMED SWALIK, S/O. LATE ABDUL MAJEED @ MAJEED, AGED 9 YEARS, (MINOR), REP.BY GRANDFATHER POCKER HAJI, (SON OF THE DECEASED), ALL ARE R/AT KONIYATHU, NALLEDATHU HOUSE, ANJAPPURA, PARAPPANANGADI POST, MALAPPURAM. BY ADV. SRI.K.M.JAMALUDHEEN RESPONDENT(S): RESPONDENTS IN OPMV ---------------------------------- 1. MANAGING DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM. 2. JAYARAJ, S/O. RAMAKRISHNAN NAIR, AGED 44 YEARS, THRIKKALANGOTTU, 32ND MILE, KARAKKUNNU. ADV. SRI.P.VENUGOPAL (1086/92) FOR R2 SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1440 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No. 728/2004 of Motor Accidents Claims Tribunal, Kozhikode challenges the judgment and award of the Tribunal granting a compensation of Rs.2,45,666/- for the loss caused to them on account of the death of deceased Majeed in a motor accident. 2. The facts leading to this appeal in brief are these : Claimants 1 and 2 are the parents of deceased Majeed and claimants 3 and 4 are his children aged 9 and 4 respectively. On January 24, 2004, deceased Majeed was riding his motor cycle bearing Reg.No.KL-10-B-8987 along National Highway. At that time, a KSRTC bus bearing Reg.No.KL-15-3967 driven by the second respondent came at a high sped from behind and dashed against the motor cycle of the deceased. The deceased as well as his wife who was pillion riding on the motor cycle sustained serious injuries. Both of MACA.No.1440/09 - Page numbers- them succumbed to the injuries sustained while undergoing treatment in the Medical College Hospital, Kozhikode. According to the claimant, accident occurred due to the rash and negligent driving of the offending bus by second respondent and respondents 1 to 3, the owner, driver and insurer of the offending bus are jointly and severally liable to pay compensation to the claimant. Claimants claimed a compensation of Rs. 20 lakhs. 3. First respondent is the Managing Director of KSRTC and second respondent is the driver of the offending bus at the time of the accident. They did not file any written statement before the Tribunal. On the side of the claimants, Exts.A1 to A5 were marked. No evidence was adduced by the respondents. 4. The Tribunal on an appreciation of evidence awarded a compensation of Rs.2,45,666/- with interest @ 7% per annum from the date of petition till realisation. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. The accident is not disputed. The finding of the Tribunal MACA.No.1440/09 - Page numbers- 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 for consideration is whether the claimant is entitled to any enhanced compensation ? 6. The Tribunal awarded a total compensation of Rs. 2,45,666/-. The break up of the award amount is as under : Dependency -Rs. 2,26,666/- Love and affection -Rs. 10,000/- Pain and suffering -Rs. 5,000/- Transportation -Rs. 1,500/- Funeral expenses -Rs. 2,500/- ------------------ Rs.2,45,666/- ========== 7. Learned counsel for the appellant seeks enhancement of compensation towards dependency, pain and suffering, loss of love and affection, loss of amenities etc. The Tribunal took his annual income as Rs. 20,000/- which appears to be incorrect. Ext.A4 it is seen that the claimant was working as a labourer in Soudi Arabia and was earning Rs. 1200 riyals ie. Rs. 15,000/- per month. The copy of his passport, Ext.A4, also shows that he was employed abroad. Counsel for the appellant produced a copy of the award of the same Tribunal in MACA.No.1440/09 - Page numbers- O.P.(MV)No.690/2004 dated February 6, 2009 which was a claim petition filed by the legal heirs of the wife of deceased in this case wherein the Tribunal has fixed the income of the deceased as Rs. 22,000/- per year. Therefore, we feel that the monthly income of the deceased can be reasonably fixed at Rs. 5,000/- per month which comes to Rs. 60,000/- per year. After deducting 1/3 for his personal expenses, the balance amount of Rs. 40,000/- can be taken has his contribution to his family. The multiplier adopted by the Tribunal as 17 taking into consideration the age of the deceased is not seriously disputed. Thus calculated for the loss of dependency, the claimants are entitled to Rs. 6,80,000/-. Therefore, on this count, the claimants are entitled to an additional compensation of Rs. 4,53,334/-. 8. The Tribunal awarded Rs. 10,000/- for loss of love and affection. In this case, claimants 3 and 4 are minor children . The wife of the deceased also died in the accident. Taking into consideration all these aspects, we feel that a compensation of Rs. 20,000/- would be reasonable on this count. Thus on this head, the claimants are entitled to an additional compensation of Rs. 10,000/-. On the other heads, the MACA.No.1440/09 - Page numbers- compensation awarded by the Tribunal appears to be reasonable. 9. In the result, the claimants are found entitled to an additional compensation of Rs. 4, 63, 334/-. They are entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. 10. The Tribunal directed the second respondent, the driver, to pay the compensation which is not correct. First respondent being the owner of the offending vehicle is liable to pay compensation to the claimants. First respondent shall deposit the entire compensation awarded including enhanced amount with interest and proportionate cost before the Tribunal within one month from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1440/09 - Page numbers-