IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 MACA.No. 1438 of 2006() ----------------------- OPMV.3041/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANTS/PETITIONERS ------------------------------------ 1. SHIRLY THOMAS JACOB, W/O.LATE M.JACOB PHILIP, AGED 46 YEARS, RESIDING AT PERAKATH HOUSE, EDAPPALLY, COCHIN-24. 2. SUZANNA THANKAM JACOB, D/O.LATE M.JACOB PHILIP (MINOR), AGED 17 YEARS, REP. BY HER NATURAL GUARDIAN AND MOTHER SHIRLY THOMAS JACOB, DO. 3. NAYANA THANKAM JACOB, D/O.LATE M.JACOB PHILIP (MINOR), AGED 14 YEARS, REP. BY HER NATURAL GUARDIAN AND MOTHER SHIRLY THOMAS JACOB, DO. 4. THANKAM PHILIP, AGED 81 YEARS, W/O.LATE K.PHILIP, PHILIPS VILLA, FORT KOCHI-1. BY ADV. SMT.SALLY THOMAS CHACKO SRI.P.T.THOMAS PERAKATH RESPONDENTS/RESPONDENTS --------------- 1. UNION OF INDIA, REP. BY GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-3. 2. DHARMAPALAN, S/O.KUNHU KUNHU, VIJAYA VILASAM, EDAYARANMULA, ARANMULA, PATHANAMTHITTA.( DELETED) MACA.NO.1438/2006 3. SASIDHARAN, ASST. DRIVER, S/O.SURENDRAN, AJI NIVAS, ASHRAMAM WARD, KOLLAM. 4. ABRAHAM PHILIP, S/O.K.PHILIP, PHILIP VILLA, FORT KOCHI. 5. THE ORIENTAL INSURANCE CO., EBENEZER GARDEN, IST FLOOR, NEAR EDAPPALLY, COCHIN-24. RESPONDENT NO.3 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 24-02-10 IN I.A.NO.352/2010 ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS FOR R1 SMT.SARAH SALVY FOR R4 SRI.P.JACOB MATHEW FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1438 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of December, 2010 JUDGMENT Barkath Ali, J. Appellants are the claimants in OP(MV)3041/1998 on the file of the Motor Accidents Claims Tribunal, Ernakulam. They are the wife, two minor daughters and mother of deceased Jacob Philip,who died in a motor accident. In this appeal they challenge the judgment and award of the Tribunal dated April 26, 2006 awarding a compensation of Rs.11,53,000/- for the loss caused to them on account of the death of deceased in that accident. 2. The accident happened on November 27, 2003 at 3.45 p.m.. The deceased was travelling in a Tata Sumo van bearing Reg.No.KL-7/R-8667 along with four other persons along Karuvatta- Sasthamuri road. When they reached at Manghuzhi Ganapathiyamkulangara Railway Level Cross on the Kayamkulam- Alappuzha Coastal Railway line which was unmanned, the Trivandrum-Howrah Express train No.6323 coming from Trivandrum rammed into the van in the unmanned level cross. The van was MACA.No.1438/2006 2 entangled and was carried away by the train for about 600 metres. The deceased sustained serious injuries and she succumbed to the injuries sustained on the spot. Alleging negligence against the driver of the van as well as on the part of the Railways, the claimants filed the OP under Sec.166 of the Motor Vehicles Act claiming a compensation of Rs.75,00,000/-. 3. The first respondent is the Union of India represented by the General Manager, Southern Railways, Chennai. Respondents 2 and 3 are the driver and Assistant Driver of the Engine of the train involved in the accident. The fourth respondent is the owner of the van and fifth respondent is its insurer. 4. All the respondents appeared before the Tribunal and filed written statements. The Railways filed a written statement admitting the accident, but attributed negligence to the driver of the van. The owner of the van filed a written statement admitting the accident, but attributed negligence on the part of the Railways. The insurer of the van filed a written statement admitting the policy of the van 5. This O.P. was tried along with other O.P.s filed by the legal MACA.No.1438/2006 3 heirs of other deceased persons and a common award was passed. Pws 1 to 7 were examined and Exts.A1 to A39 were marked on the side of the claimants before the Tribunal. RW1 and RW2 were examined and Exts.B1 to B4 were marked on the side of the contesting respondents. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the driver of the offending van and awarded a total compensation of Rs.11,53,000/- with interest at the rate of 7% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. Heard the counsel for the appellants/claimants and the counsel for the Insurance Company. 7. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the driver of the van is not challenged in this appeal. Therefore the only question which arises for consideration is whether the claimants are entitled to any enhanced compensation. MACA.No.1438/2006 4 8. The Tribunal awarded a total compensation of Rs.11,53,000/- The break up of the compensation amount awarded is as under: Transportation - Rs. 5,000/- Pain and suffering - Rs. 5,000/- Loss of consortium - Rs. 5,000/- Loss of love and affection - Rs.10,000/- Loss of dependency - Rs.11,28,000/- 9. The Counsel for the claimants sought enhancement of the compensation awarded for the loss of dependency, for loss of consortium and for loss of love and affection. 10. The Tribunal took the monthly income of the deceased as Rs.12,000/- for the first two years and after deducting 1/3 for his personal expenses, the balance amount of Rs.8,000/- was taken as his monthly contribution to his family and awarded Rs.1,92,000/- and for the remaining period of 13 years, the Tribunal took his monthly income as Rs. 9,000/- and after deducting 1/3 for his personal expenses, took the balance amount of Rs. 6,000/- as his monthly contribution to his family and awarded Rs.9,36,000/- totalling to Rs.11,28,000/-. The deceased was employed abroad. He was a diploma holder in MACA.No.1438/2006 5 Automobile Engineering. He was working as a Sales Manager in Universal Marine Services at Damam in Saudi Arabia earning 7,500 Saudi Ryals per month i.e. about Rs. 75,000/- per month. His contract in employment would end in 1999. Taking into consideration the above aspect, we feel that his monthly income can be reasonably fixed at Rs. 15,000/- . After deducting ¼ for his personal expenses as there are four claimants in this appeal, the balance of Rs.11,250/- can be taken as his monthly contribution to his family which comes to Rs.1,35,000/- per annum. The multiplier adopted by the Tribunal as 15 is not seriously challenged as the deceased was aged 43 at the time of the accident. Thus, calculated for the loss of dependency, the claimants are entitled to a compensation of Rs. 20,25,000/- ( 1,35,000 x 15). Thus on this count, the claimants are entitled to an additional compensation of Rs.8,97,000/-. 11. The Tribunal awarded Rs. 5,000/- for loss of consortium and Rs.10,000/- for loss of love and affection which appear to be very low. Taking into consideration the age of the claimants, we feel that a compensation of Rs. 15,000/- for loss of consortium and Rs. 20,000/- MACA.No.1438/2006 6 for loss of love and affection would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 12. In the result, the claimant is found entitled to an additional compensation of Rs. 9,17,000/- with interest @ 7% per annum from the date of petition till realisation and proportionate cost. The fifth respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months 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.