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 12TH JULY 2010 / 21ST ASHADHA 1932 MACA.No. 90 of 2004(C) ---------------------------------- (OP(MV).NO.142/1997 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL) .................... APPELLANTS/CLAIMANTS: --------------------------------------- 1. SARASWATHY AMMA, W/O.LATE SUDARSANA KURUP KARICKAKATHIL VEEDU, KESAVAPURAM, VELLALLUR P.O., KILIMANOOR, TRIVANDRUM DISTRICT. 2. MASTER RIJOSH S. KURUP (MINOR), S/O. LATE SUDARSANA KURUP, KARICKAKATHIL VEEDU, KESAVAPURAM, VELLALLUR P.O., KILIMANOOR, TRIVANDRUM DISTRICT. 3. MISS. RESHMA S.KURUP (MINOR), D/O. LATE SUDARSANA KURUP, KARICKAKATHIL VEEDU, KESAVAPURAM, VELLALLUR P.O., KILAMANOOR, TRIVANDRUM DISTRICT. 4. GANGADHARA KURUP, S/O.MADAPPA KURUPPU, KARICKAKATHIL VEEDU, KESAVAPURAM, VELLALLUR P.O., KILIMANOOR, TRIVANDRUM DISTRICT. 5. PANKAJAKSHY AMMA, W/O.GANGADHARA KURUP, KARICKAKATHIL VEEDU, KESAVAPURAM, VELLALLUR P.O., KILIMANOOR, TRIVANDRUM DISTRICT. BY ADV. SRI.NAGARAJ NARAYANAN. RESPONDENTS/RESPONDENTS IN THE O.P: ---------------------------------------------------------------- 1. E.D.PAUL, S/O. DEVASSY, EDAKALATHOOR HOUSE, CHALAKKUDY P.O., THRISSUR DISTRICT. M.A.C.A. NO. 90/2004-C: 2. YOHANNAN, S/O. DANIEL, SUNI BHAVAN, PLAVILA THEKKATHIL VEEDU, THANNIKUNNU, VETTIYAR SOUTH, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. 3. M/S. ORIENTAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, THAKARAPARAMBU JUNCTION, PAZHAVANGADI, THIRUVANANTHAPURAM-23. R2 BY ADVS. SRI.R.REJI, SMT.SHIVA RAJA RESHMI, R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA). THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~==~=~=~=~==~=~=~=~==~=~=~=~== M.A.C.A. No. 90 of 2004 =~=~=~=~==~=~=~=~==~=~=~=~==~=~=~=~== Dated this the 12th day of July, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimants in O.P.(MV) No.142 1997 of the Motor Accidents Claims Tribunal, Attingal challenge the judgment and award of the Tribunal dated February 28, 2003, awarding a compensation of Rs.11,63,820/- for the loss caused to the claimants, on account of the death of one Sudarshana Kurup in a motor accident. 2. The facts leading to this appeal, in brief, are these:- Deceased Sudarshana Kurup was aged 40 at the time of the accident. He was working as a Third Officer in Merchant Navy and was earning 2157 American Dollars per month, which comes to Rs.85,000/-, according to the claimants. On September 4, 1996 at about 5 p.m. deceased was riding his motor cycle bearing registration No.PB/03/D/8148 with his friend Krishna Kumar as a pillion MACA 90/2004 2 rider along the National Highway. When he reached in front of the outer gate of a petrol bunk, situated near Mangalapuran Junction, he was knocked down by a car bearing registration No.KLO/B/D-8300. He sustained serious injuries and he succumbed to the injuries sustained on the next day, while under going treatment in the Medical College Hospital. The claimants are his wife, three minor children and parents. According to the claimants, the accident occurred due to the negligence on the part of the second respondent, driver of the car. The first respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending car are jointly and severally liable to pay the compensation to the claimants who are the dependents and legal heirs of the deceased. Claimants claimed a compensation of Rs.1 crore. 3. Respondents 1 and 2, driver and insurer of the offending car, remained absent and were set ex parte by the Tribunal. The third respondent Insurance Company filed a written statement, admitting the policy and further contended that there was also negligence on the part of the deceased. MACA 90/2004 3 4. PWs.1 to 3 were examined and Exts. A1 to A43 and Exts.X1 and X2 were marked on the side of the claimants. RWs.1 and 2 were examined on the side of the contesting third respondent. On an appreciation of the evidence, the Tribunal awarded a total compensation of Rs.11,63,820/- with interest at the rate of 9% p.a. from the date of petition till realization and cost. The claimants have come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the claimants and learned counsel for the Insurance Company. 6. The accident is not disputed. The finding of the Tribunal 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, which arises for consideration in this appeal, is whether the claimants are entitled to any enhanced compensation? 7. The Tribunal awarded a total compensation of Rs.1163,820/-. Break up of the compensation awarded is as under:- MACA 90/2004 4 Loss of dependency : Rs.10,96,320/- Damage to clothing : Rs. 500/- Transportation : Rs. 2,000/- Funeral expenses : Rs. 5,000/- Pain and suffering : Rs. 15,000/- Loss of consortium : Rs. 15,000/- Loss of love and affection : Rs. 15,000/- Loss of estate. : Rs. 15,000/- ------------------ Total Rs.11,63,820/- ======== 8. The learned counsel for the claimants sought enhancement of compensation awarded for the loss of dependency and on other heads. The Tribunal took the monthly income of the deceased as Rs.17,760/- i.e., Rs.2,13,120/- per annum and after deducting 1/3rd for his personal expenses Rs.1,42,080/- per annum was taken as his contribution to the family. The Tribunal adopted a multiplier of 15, which is not seriously challenged. For assessing the loss of the dependency his contribution for the first four years was taken as Rs.1,42,080/- per annum as his Visa was only for four years. For the remaining 11 years, the Tribunal took the income of the deceased as Rs.6,000/- per month and after deducting 1/3rd for his personal expenses, Rs.4,000/- was taken as his monthly MACA 90/2004 5 contribution to the family, which comes to Rs.48,000/- per annum. Thus, for the loss of dependency Rs.10,96,320/- was awarded by the Tribunal. 9. There are five dependents to the deceased who are the claimants. Therefore, in the light of the principles laid down in Sarala Varma V. Delhi Transport Corporation (AIR 2009 SC 3104), 1/4th of the income need be deducted for his personal expenses. That being so, for the first four years loss of dependency comes to Rs.6,39,360/- (Rs.2,13,120 x4 x ¼). For the remaining 11 years, the Tribunal took his monthly income as Rs.6,000/-, which appears to be reasonable. After deducting 1/4th for his personal expenses, balance amount of Rs.4,500/- can be taken as his monthly contribution to his family, which comes to Rs.54,000/- per annum. Thus for the remaining 11 years, the loss of dependency would come to Rs.5,94,000/- (Rs.54,000/- x 11). Towards loss of dependency, the claimants are entitled to a compensation of Rs.12,33,360/- i.e., additional compensation of Rs.1,37,040/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are MACA 90/2004 6 not disturbing the same. Regarding the apportionment of the compensation amount and disbursement of the same, the direction of the Tribunal will stand. 10. In the result, the claimants are entitled to an additional compensation of Rs.1,37,040/-. They are entitled to interest at 9% per annum from the date of petition till realization and proportionate cost. The third respondent being the insurer of the offending car shall deposit the amount within two months from the date of receipt of copy of this judgment before the Tribunal with notice to the claimants. The claimants are entitled to proportionate costs. In the result, the appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn MACA 90/2004 7