IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 MACA.No. 1496 of 2004() ----------------------- OPMV.148/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT/PETITIONERS: ------------------------------------ 1. KALLIYIL ABOOBACKER, S/O. LATE KUTTUHASSAN HAJI, MANDAMKKULANGARA HOUSE THENJIPALAM, CHENAKKALRANGADI P.O. 2. ANAKKACHERY KHADEESAKUTTY, W/O. K. ABOOBACKER. 3. P.P.RAMLA, W/O. LATE K.ABDUL GAFOOR. 4. K.MOHAMMED HANEEFA, S/O. LATE K.ABDUL GAFOOR, AGED 5 1/2 YEARS. 5. K.MOHAMMED BASHEER, S/O. LATE K.ABDUL GAFOOR, AGED 3 1/2 YEARS. 6. K.MOHAMMED ADIL, S/O. LATE K.ABDUL GAFOOR, AGED 2 1/2 YEARS. (MINOR APPELLANTS 4 TO 6 ARE REPRESENTED BY GUARDIAN NEXT FRIEND MOTHER 3RD APPELLANT). BY ADV. SRI.THOMAS ANTONY SRI.M.P.PRAKASH RESPONDENT(S): RESPONDENTS: --------------------------- 1. MUTHUVATTU THALHATHA, S/O. MOHAMMEDKUTTY, MANAKKAD HOUSE, PALLIKKAL AMSOM, DESOM (DRIVER). 2. MUTHUVATTU SAIDALAVI, S/O. AHAMMEDKUTTY, THOPPAKUKLAM HOUSE, P.O. PALLIKKAL (OWNER). 3. NATIONAL INSURANCE CO. LTD., MANJERI. ADV. SMT.SARAH SALVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1496 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of February, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P(MV)No.148/2000 of Motor Accidents Claims Tribunal, Manjeri challenges the award of the Tribunal dated July 3, 2004 awarding a compensation of Rs. 1,87,320/- for the loss caused to them on account of the death of Kalliyil Abdul Gafoor in a motor accident, who is the son of appellants 1 and 2 and husband of third appellant and father of appellants 4 , 5 and 6. 2. The facts in brief are these : On August 23, 1999 at about 12'0 clock in the noon , deceased was travelling in a jeep bearing Reg. No.KRM 991 from Pallikkal to Kakkancheri and that when it reached near Kavumpadi, the jeep fell into a gutter and that he was thrown out of the jeep causing serious injuries . He succumbed to the injuries sustained while undergoing treatment in the hospital on August 31, 1999. The accident occurred due to the rash and negligent driving of the offending jeep by the first MACA.No.1496/2004 Page numbers respondent. The claimants claimed a compensation of Rs. 7,50,000/- and contended that the respondents being the driver, owner and insurer of the jeep are jointly and severally liable for compensation. 3. Respondents 1 and 2, the driver and owner of the offending jeep filed written statement before the Tribunal . Third respondent, the insurer of the offending vehicle contended that the accident occurred due to the negligence on the part of the deceased himself. 4. PW1 was examined and Exts.A1 to A9 were marked on the side of the claimants. On the side of the contesting third respondent, Ext.B1, copy of the policy was marked. On an appreciation of evidence, the Tribunal awarded a compensation of Rs. 267,600/-, but finding that there is 30% contributory negligence on the part of the deceased, reduced the compensation to Rs. 187,320/-. Aggrieved by the said award passed by the Tribunal, the claimants have now come up in appeal. 5. The accident is not disputed. The finding of the Tribunal that there was negligence on the part of the first respondent, the driver of the jeep is also not challenged in this appeal. The claimants have challenged the finding of the Tribunal that there was contributory MACA.No.1496/2004 Page numbers negligence on the part of the deceased. Therefore the following questions arise for consideration : 1) Whether there was any contributory negligence on the part of the deceased in causing accident ? 2) Whether the claimants are entitled to any enhanced compensation ? 6. The reasoning of the Tribunal to hold that the deceased was negligent is unfounded. Accident occurred when the head of the deceased hit on an electric post on the side of the road. The Tribunal has found that the deceased being a passenger in the offending jeep should have been more careful. Ext.A8 the scene mahazar shows that there was gutters on the road. That being so, the driver should have been more careful and would not have caused the accident. Therefore, the finding of the Tribunal that there was contributory negligence on the part of the deceased is hereby set aside and we hold that the accident occurred due to the negligence on the part of the second respondent, the driver of the offending vehicle. The Tribunal awarded a total compensation of Rs. 2,67,600/- out of which 80,280/- was MACA.No.1496/2004 Page numbers deducted for the alleged contributory negligence on the part of the deceased. As we have found that there was no contributory negligence on the part of the deceased, the claimants are entitled to the entire compensation awarded. Therefore, the claimants are entitled to an additional compensation of Rs. 80,280/- on this count. 7. For awarding the loss of dependency, the Tribunal assessed the income of the deceased at Rs. 1600/- per month at the rate of Rs. 80/- per day for twenty days in a month on the ground that PW1, the wife of the deceased had stated that during 1994, the wage for a coolie was Rs. 80/- per day and that there will be work for only 20 days in a month. We feel that the monthly income of deceased can be reasonably assessed at Rs.3500/-. After deducting Rs. 1000/- per month for personal expenses, his monthly contribution to his family would be Rs. 2500/-. The Tribunal has adopted a multiplier of 17 which is not seriously challenged. Thus calculated the loss of dependency comes to Rs. 5,10,000/- Thus for the loss of dependency, the claimants are entitled to an additional compensation of Rs. 2,92,400/-. 8. For the loss of consortium Rs. 20,000/- and for loss of love MACA.No.1496/2004 Page numbers and affection Rs. 20,000/- were granted by the Tribunal. The wife of the deceased was aged 24 at the time of the accident. The claimants 4, 5 and 6 were aged 5 ½ years, 4 ½ years and 2 ½ years respectively. Therefore we feel that ,for the loss of consortium a compensation of Rs. 30,000/- and for loss of love and affection a compensation of Rs. 30,000/- would be reasonable. Thus, the claimants are entitled to an additional compensation of Rs. 10,000/- each for loss of consortium and loss of love and affection. In the result, the claimants/appellants are found entitled to an additional compensation of Rs. 3,92,680/- with interest @ 9% per annum from the date of petition till realisation . They are also entitled to proportionate costs. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1496/2004 Page numbers