IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 MACA.No. 711 of 2003() ---------------------- OPMV.421/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): APPELLANTS/PETITIONERS: ------------------------------------- 1. T.P. SUBAIDA, D/O. UMMERKUTTY, AGED 35 YEARS, THANDAPARAMBA HOUSE, P.O. ULIYIL, THALASSERY, KANNUR DISTRICT. 2. T.P. RASHEED, S/O. UMMERKUTTY, AGED 33 YEARS, THANDAPARAMBU HOUSE, P.O. ULIYIL, THALASSERY, KANNUR DISTRICT. 3. T.P. MUSTHAFA, S/O. UMMERKUTTY, AGED 31 YEARS, THANDAPPARAMBA HOUSE, P.O. ULIYIL, THALASSERY, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): RESPONDENTS 1 TO 3: ---------------------------------- 1. B.A. MURALEEDHARAN, S/O. ANANDA RAO, MUNDDYAKKAL HOUSE, P.O. BAKEL, KASARAGOD DISTRICT. 2. B. YOGESH PRABHU, S/O. B.D.L.PRABHU LAKSHMI NIVAS, AJANUR, P.O. BALLIOTH, KANHANGAD, KASARAGOD DISTRICT. 3. UNITED INDIA INSURANCE CO.LTD., P.B.NO.29, RAHMATH SHOPPING COMPLEX, KOTTANCHERRY, P.O. KANHANGAD, KASARAGOD DISTRICT. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No. 711 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of June, 2009 JUDGMENT Joseph, J. The appellants are the sons and daughter of late Nafeesa, who died in a motor accident, on 23.2.1997. They are aggrieved by the compensation awarded. The Tribunal has awarded a total sum of Rs.74,500/- 2. We heard the learned counsel for the appellants Shri.Grashious Kuriakose and the learned counsel for the Insurance Company, Shri.M.A. George. 3. The learned counsel for the appellants would point out that the Tribunal has not awarded proper compensation, only on the basis that the appellants are married sons and daughter of the deceased. According to them, their mother was employed and was earning Rs.2,000/- p.m. He would further submit that in a M.A.C.A.No. 711 of 2003 2 petition under Sections 166 of the M.V. Act, the amount to be awarded should not be less than the amount which is to be awarded under Section 163A. Reliance was placed on the decision in National Insurance Co. Ltd. v. Muneer (2003 (1) KLT 137). 4. In that case, the Division Bench has considered the compensation to be awarded in the case of the death of a 4 year old child. It was held that “merely because a claimant had chosen to claim a higher amount under Section 166/168 of the Motor Vehicles Act, it may not be just and equitable to deny him the prefixed compensation guaranteed under Section 163A of the Act.” He would further contend that in so far as the appellants are concerned, they being children of the deceased, in the matter of awarding compensation for love and affection, an amount of Rs.10,000/- was awarded together. He contends that each claimant should have been granted at least at the rate of Rs.10,000/- as the mother is the reservoir of love and affection reserved equally for all the children. The appellants have a further case that the daughter is divorced and she was being looked after by the mother, the deceased. M.A.C.A.No. 711 of 2003 3 5. The learned counsel for the Insurance Company would contend that this is a case where all the appellants are married sons and daughter of the deceased and no increase is warranted. 6. The compensation is awarded under the multiplier theory on the basis that the dependent would get the income on the basis of the monthly income which the claimant would have received if the person had not died. From the monthly income annual dependency is arrived at using appropriate multiplier depending on the age of the deceased and the claimants. 7. In this case, admittedly the appellants are all married sons and daughter of the deceased. No doubt, there is a case that the daughter is divorced and is looked after by the mother. If one goes by the amount to be awarded under Section 163A, the amount would be taken nearly Rs.1,87,000/- if income is taken at Rs.1,250/- But it must be noted that it is a case, where the appellants are not strictly dependents as such, as they are married of. The learned counsel for the appellants relied on the decision in Lata Wadhwa v. State of Bihar (AIR 2001 SC 3218). That was a Writ Petition filed before the Apex Court under Article 32 of the Constitution seeking compensation M.A.C.A.No. 711 of 2003 4 for the death, which took place in a fire which broke out in a company. The Apex Court took the view that the income of a housewife can be fixed at Rs.3,000/- In this case the income was fixed at Rs.2,000/- The Tribunal has awarded only the minimum award of Rs.50,000/- We think that this is a case where the appellants are entitled for Rs.40,000/- more. We feel that the appellants should also be granted a further sum of Rs.10,000/- more towards love and affection. Thus the appellants are entitled to Rs.50,000/- more. 8. Accordingly the appeal is allowed in part. The appellants are allowed to realise a sum of Rs.50,000/- more from the respondents with interest at the rate of 7.5% from the date of the petition till realisation. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) tm Judge M.A.C.A.No. 711 of 2003 5