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 31ST MAY 2010 / 10TH JYAISTHA 1932 MACA.No. 2038 of 2009 & Cross Objection No. 45 of 2010 ----------------------- OP(MV).375/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM. .................... APPELLANT(S): 2ND RESPONDENT ---------------------------- THE ORIENTAL INSURANCE CO.LTD., THIRUVANANTHAPURAM, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): CLAIMANT & 1ST RESPONDENT -------------------------------------- 1. R.BAJESWARI, W/O.DECEASED SADASIVAN, RESIDING AT POURNAMI, VELLAMKETTUVILA, PRAVACHAMBALAM, NEMOM P.O., THIRUVANANTHAPURAM. 2. K.S.KRISHNA KUMAR, S/O.SUKUMARAN, KRISHNA BHAVAN, SASTHAMVILA, EDACODE, NEMOM P.O., THIRUVANANTHAPURAM. ADV. SRI.L.MOHANAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 2038 of 2009 & Cross Objection No. 45 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this 31st day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act the Insurance Company, second respondent in O.P.(MV) No.375 of 2003 of the Motor Accidents Claims Tribunal, Thiruvananthapuram, challenges the judgment and award of the Tribunal dated January 5, 2009 awarding a compensation of Rs.2,21,000/- to the claimant for the loss caused to her on account of death of Sadasivan in a motor accident. The claimant has filed the cross objection claiming enhancement of the compensation awarded. 2. The facts leading to this appeal, in brief, are these:- Deceased Sadasivan was aged 55 at the time of the accident and used to earn Rs.4,000/- per month as an Electrical Wireman Contractor. On October 27, 2002 at about 8 p.m. MACA 2038/2009 2 Sadasivan was walking along the Nemom – Pravachamblam National Highway. When he reached near Sai Studio, Pravachambalam Junction, he was knocked down by a motor cycle bearing registration No.KL-01/W 9737, owned and ridden by the first respondent. Sadasivan sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the Medical College Hospital, Thiruvananthapuram on November 6, 2002. According to the claimant, the accident occurred due to the rash and negligent driving of the offending motor cycle by the first respondent. First respondent as the owner-cum-rider and second respondent as the insurer of the offending motor cycle are jointly and severely liable to pay the compensation to the claimant, who is the legal heir and dependent of the deceased. 3. First respondent, owner-cum-rider of the offending motor cycle, remained absent and was set ex parte by the Tribunal. The second respondent, insurer of the offending motor cycle, filed a written statement, admitting the policy. 4. Exts. A1 to A10 were marked on the side of the MACA 2038/2009 3 claimant before the Tribunal. No evidence was adduced on the side of the contesting second respondent. On an appreciation of the evidence, the Tribunal found that the accident occurred due to the negligence on the part of the first respondent, rider of the offending motor cycle, and awarded a compensation of Rs.2,21,000/- with interest at the rate of 7.5% p.a. from the date of petition till realization. The second respondent Insurance Company has challenged the award on the ground that for awarding loss of dependency the Tribunal took the multiplier of 11, which is on the higher side, as the claimant was aged 55 at the time of the accident. The claimant has filed the cross objection claiming enhancement of the compensation awarded. 5. The following points arise for consideration:- 1) Whether the Tribunal is justified in adopting a multiplier of 11 in assessing the compensation for the loss of dependency? 2) Whether the claimant is entitled to any enhanced compensation? 6. The Tribunal awarded a total compensation of MACA 2038/2009 4 Rs.2,21,000/-. The break up of the compensation awarded is as under:- Loss of dependency : Rs.1,76,000/- Loss of estate : Rs. 5,000/- Loss of consortium : Rs. 15,000/- Loss of love and affection : Rs. 10,000/- Pain and suffering : Rs. 10,000/- Funeral expenses : Rs. 5,000/- ------------------- Total : Rs.2,21,000/- ======== 7. The Tribunal took the monthly income of the deceased as Rs.2,000/- and after deducting 1/3rd for his personal expenses, Rs.16,000/- per annum was taken as his annual contribution to the family and adopted a multiplier of 11 and awarded Rs.1,76,000/- for the loss of dependency. The learned counsel for the appellant Insurance Company submitted that as the claimant was aged 50 at the time of the accident, proper multiplier would have been 8 as seen from the Second Schedule to the Motor Vehicles Act. We are unable to agree. Ext.A10 a copy of the relevant page of the S.S.L.C. Book of the claimant shows that on the date of the accident she was aged about 52, but there is no evidence to show that she has MACA 2038/2009 5 any children to look after. The deceased was aged 55 at the time of the accident. Taking into consideration all these aspects, the Tribunal is perfectly justified in taking a multiplier of 11 in this case. 8. The Tribunal took the monthly income of the claimant as Rs.2,000/- and deducted 1/3rd for his personal expenses and adopted a multiplier of 11. The deceased was a licensed workman, as revealed from Ext.A9 licence issued from the Kerala State Electricity Board. Therefore, we feel that monthly income of the claimant can reasonably be estimated at Rs.3,000/- and after deducting 1/3rd for his personal expenses Rs.2,000/- per month can be treated as his monthly contribution to the family. Thus, calculated for the loss of dependency, the claimant is entitled to a compensation of Rs.2,64,000/-. Thus, on this count the claimant is entitled to an additional compensation of Rs.88,000/-. 9. For loss of love and affection, the Tribunal awarded a compensation of Rs.10,000/-, which appears to be very low. Taking into consideration the age of the claimant and the MACA 2038/2009 6 deceased, we feel that a compensation of Rs.15,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore,we are not disturbing the same. 10. In the result, the claimant is found entitled to an additional compensation of Rs.93,000/-. She is entitled to interest at the rate of 7.5 % per annum from the ate of petition till realization and proportionate costs. That being so, the appeal has to be dismissed and the cross objection has to be allowed. The appellant shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. In the result, the appeal is dismissed and the cross objection is allowed. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn