IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 MACA.No. 2266 of 2007(D) ----------------------- OPMV.301/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT: 3RD RESPONDENT -------------- THE NATIONAL INSURANCE CO.LTD., KASARAGOD, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, 2ND FLOOR,OMANA BUILDING, M..G.ROAD, KOCHI-35. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS:CLAIMANTS --------------- 1. HAJIRA T.A., W/O.ABOOBACKER A.M. AILAS MOHAMMED, R/AT.FA-MANZIL, OPP.SIMPCO,NELLIKUNNU, KASARAGOD TALUK AND DISTRICT, P.O.KASARAGOD, ADKATHABAIL VILLAGE. 2. ARIFA, D/O.ABOOBACKER A.M. AILAS MOHAMMED, R/AT.FA-MANZIL, OPP.SIMPCO,NELLIKUNNU, KASARAGOD TALUK AND DISTRICT, P.O.KASARAGOD, ADKATHABAIL VILLAGE. 3. MOHAMMAD FAYAD,R/AT.FA-MANZIL, OPP.SIMPCO,NELLIKUNNU, KASARAGOD TALUK AND DISTRICT, P.O.KASARAGOD,ADKATHABAIL VILLAGE. 4. MOHAMMAD FAWAZ (MINOR), S/O.ABOOBACKER A.M. ALIAS BACKER MOHAMMED, R/AT.FA-MANZIL,OPP.SIMPCO,NELLIKUNNU, KASARAGOD TALUK AND DISTRICT,P.O.KASARAGOD, ADKATHABAIL VILLAGE. REPRESENTED BY MOTHER THE FIRST RESPONDENT. 5. ABDUL FATHAH (MINOR),S/O.ABOOBACKER A.M. ALIAS BACKER MOHAMMED,R/AT.FA-MANZIL,OPP.SIMPCO, NELLIKUNNU,KASARAGOD TALUK AND DISTRICT, P.O.KASARAGOD, ADKATHABAIL VILLAGE.REPRESENTED BY MOTHER THE FIRST RESPONDENT. MACA.No. 2266 of 2007(D) - 2 - 6. ASYABI,W/O.MOHAMMED KUNHI, R/AT.FA-MANZIL,OPP.SIMPCO, NELLIKUNNU,KASARAGOD TALUK AND DISTRICT, P.O.KASARAGOD, ADKATHABAIL VILLAGE. ADV. SRI.P.K.MUHAMMED FOR R1 TO 6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A No.2266 of 2007 ------------------------------------- Dated this the 8th day of April, 2009 JUDGMENT BASANT, J. The 3rd respondent/insurer before the Tribunal is the appellant before us. The appellant had taken permission under Section 170 of the Motor Vehicles Act before the Tribunal, it is asserted and not denied. The claimants (respondents 1 to 6) as the legal heirs of the deceased claimed compensation for the loss suffered by them as a result of the death of the deceased who suffered injuries in a motor accident on 29.12.2003 and succumbed to those injuries. It was claimed that the deceased was employed at Abudabi and was earning an income of Rs.28,750/- per mensem. Deceased were shown to be aged about 45 years. He succumbed to the injuries on the date of the accident itself. 2. Before the Tribunal, Exts.A1 to A12 were marked and the 1st claimant/wife examined herself as PW1. The Tribunal on an anxious consideration of all the relevant circumstances came to the conclusion that the claimants are entitled to a total amount of Rs.8,70,500/- as per the details given below. M.A.C.A No.2266 of 2007 2 i) Pain and suffering : Rs. 10,000/- ii) Loss of estate : Rs. 10,000/- iii) Loss of consortium : Rs. 15,000/- iv) Damages to clothing : Rs. 500/- v) Funeral expenses : Rs. 3,000/- vi) Loss of dependency (8000 X 12 X 2/3 X 13) : Rs.8,32,000/- Total : Rs.8,70,500/- The said amount was directed to be paid along with interest @ 7% per annum. The appellant/insurer claims to be aggrieved by the impugned award. The learned counsel for the appellant contends that the Tribunal erred on two aspects. The monthly income was reckoned at Rs.8,000/- without any acceptable data. Even going by the oral evidence of PW1, adoption of Rs.8,000/- as the monthly income is not justified as her evidence is only that the deceased was paying an amount of Rs.20,000/- in 3 months. Dependency cannot, in these circumstances, exceed at any rate Rs.6,667/- per mensem, contends the learned counsel for the appellant. M.A.C.A No.2266 of 2007 3 3. The learned counsel for the appellant further submits that it would have been absolutely easy for the claimants to adduce satisfactory evidence to prove regular and periodic remittance of this amount of Rs.20,000/- every 3 months. They have not produced any evidence. We have no idea about the qualification of the deceased. The precise nature of the employment of the deceased cannot also be ascertained from the data available. We have satisfactory indications to suggest and there is no dispute on that aspect - that the deceased was employed abroad. He was evidently supporting a family consisting of his wife, 4 minor children and aged mother - the claimants herein. Reasonable and safe inferences can be drawn. Oral evidence of PW1 is also available. 4. The learned counsel for the appellant/insurer further submits that in a case like the instant one where the deceased was temporarily employed abroad in a lucrative employment it would be idle to go to the second schedule to ascertain the multiplier and then assume that the present earnings would have continued for all time during the period for which multiplier is taken. In the instant case the deceased is found to be aged more than 45 years. He has already been employed abroad for a M.A.C.A No.2266 of 2007 4 period of about 9 years admittedly. It would be absolutely unreasonable and irrational to assume that he would have continued in such employment abroad for the entire period of the 13 years reckoned as multiplier. We take note of all the relevant circumstances. It is true that many imponderableness are there. Ascertainment of compensation is an art and not merely a science of exactitude. Having considered all the inputs we find merit in the challenge raised by the appellant and we are persuaded to accept that only an amount of Rs.5,000/- can be adopted as the multiplicand. The multiplier reckoned is correct and the deduction of 1/3rd from the personal expenses of the deceased does also appear to us to be absolutely justified. No other grounds of challenge are raised. 5. We are, in these circumstances, satisfied that the claimants are entitled only for an amount of Rs.6,24,000/- (6,000 X 12 X 13 X 2/3) as compensation under the head of loss of contribution/dependency. 6. The learned counsel for the appellant contends that the award of penal interest @ 12% per annum is not justified. Interest has been awarded @ 7% per annum from the date of petition till date of realisation. But thereafter a direction was M.A.C.A No.2266 of 2007 5 issued to pay the amount within a period of 30 days failing which the compensation amount was directed to carry interest @ 12% per annum. We are not persuaded to agree that such a direction is necessary in the circumstance of the case. It is directed that interest shall be payable from the date of petition to the date of payment @ 7% per annum. 7. The appeal succeeds to the above extent only. The appeal is allowed in part. The impugned direction for payment of compensation is modified. It is directed that the claimants are entitled only for an amount of Rs.6,62,500/- (ie. Rs.8,70,500/- minus Rs.2,08,000/-). In all other respects the impugned order is upheld. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-