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 21ST JUNE 2010 / 31ST JYAISTHA 1932 MACA.No. 1264 of 2004() ----------------------- OPMV.756/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANTS/CLAIMANTS ---------------------------------- 1. ZEENATH.K.K., AGED 34 YEARS, W/O.LATE AYOOB, KARUKAPADATH HOUSE, P.O.ERIYAD, KODUNGALLUR. 2. MINOR HARON, AGED 11 YEARS, (DATE OF BIRTH 16-2-93), S/O.LATE AYOOB, KARUKAPADATH HOUSE, P.O.ERIYAD, KODUNGALLUR. 3. MINOR SANA, AGED 8 1/2 YEARS, (DATE OF BIRTH 28-9-95), D/O.LATE AYOOB, KARUKAPADATH HOUSE, P.O.ERIYAD, KODUNGALLUR. 4. NABEESA, AGED 66 YEARS, W/O.LATE KUNJUMOHAMMED, KARUKAPADATH HOUSE, P.O.ERIYAD, KODUNGALLUR. (MINOR APPELLANTS 2 AND 3 REPRESENTED BY NATURAL GUARDIAN MOTHER ZEENATH K.K., W/O.LATE AYOOB, KARUKAPADATH(H), P.O.ERIYAD, KODUNGALLUR). BY ADV. SRI.P.K.IBRAHIM RESPONDENT(S): RESPONDENTS --------------- 1. JAYARAJAN, S/O.BHASKARAN, THOTTATHIL HOUSE, WEST OF BOYS HIGH SCHOOL, KODUNGALLUR. 2. SALEEM, S/O.BAVU, MATHILAKATH VEEDU, P.O.KARA, EDAVILANGU VILLAGE. 3. ORIENTAL INSURANCE CO.LTD., P.B.NO. 27, NORTH NADA, KODUNGALLUR. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1264 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of July, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P.(MV)No.756/1998 of Motor Accidents Claims Tribunal, Irinjalakuda, who are the widow, two minor children and mother of deceased Ayoob, challenge the judgment and award of the Tribunal dated December 24, 2003 awarding a compensation of Rs.2,23,000/- for the loss caused to them on account of the death of deceased Ayoob in a motor accident. 2. The facts leading to this appeal in brief are these : Deceased Ayoob was aged 39 at the time of the accident and used to earn Rs. 4,000/- per month as a Mason. On March 10, 1998 at about 4.30 p.m., deceased was cycling along the road near Asmabi College, Azhikode. When he reached at a place called Kara, a bus bearing Reg.No.KRR 5292 driven by the second respondent came at a high speed and knocked him down. The claimant sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment at Medical Centre, Ernakulam on the same day. Claimants are his wife, MACA.No.1264/2004 2 two minor children and his mother. According to the claimants, accident occurred due to the rash and negligent driving of the offending bus by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimants, who are the legal heirs and dependants of the deceased. Claimants claimed a compensation of Rs. 5 lakhs. 3. First respondent, the owner of the offending bus remained absent and was set ex parte by the Tribunal. The second respondent, the driver of the offending bus filed a written statement admitting the accident, but denied the liability. The third respondent the insurer of the offending bus filed a written statement admitting the policy. 4. PW1 was examined and Exts.A1 to A10 were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting respondents. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending bus by second respondent and awarded a compensation of Rs. 2,23,000/- with interest @ 6% per annum from the date of petition till realisation. The claimants have MACA.No.1264/2004 3 now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellants/claimants and the 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 is whether the claimants are entitled to any enhanced compensation. 7. The Tribunal awarded a total compensation of Rs.2,23,000/-. The break up of the compensation awarded is as under : Loss of dependency - Rs.1,80,000/- Medical expenses - Rs. 15,000/- Pain and suffering - Rs. 5,000/- Loss of love and affection - Rs. 15,000/- Loss of consortium - Rs. 5,000/- Funeral expenses - Rs. 3,000/- 8. Counsel for the claimants sought enhancement of compensation for the loss dependency, for loss of love and affection and for loss of consortium. 9. The Tribunal took the annual income of the deceased as Rs. 18,000/- and after deducting 1/3 for his personal expenses, took MACA.No.1264/2004 4 Rs. 12,000/- as his annual contribution to his family and adopted a multiplier of 15 and and awarded Rs.1,80,000/- for loss of dependency. As the claimant was a Mason aged 39, we feel that his monthly income can be reasonably fixed at Rs.3,000/- which works out to Rs.36,000/- per annum. After deducting 1/3 for his personal expenses, the balance amount of Rs. 24,000/- can be taken as his annual contribution to his family. The proper multiplier that can be adopted in this case is 16. Thus for the loss of dependency, the claimants are entitled to a compensation of Rs. 3,84,000/- ( 24,000/- x 16). Thus on this count, the claimants are entitled to an additional compensation of Rs. 2,04,000/-. 10. The Tribunal awarded Rs. 5,000/- towards loss of consortium, which appears to be very low. Taking into consideration the young age of the widow, first claimant, we feel that a compensation of Rs. 10,000/- would be reasonable for the loss of consortium. 11. For the loss of love and affection, the Tribunal awarded Rs. 15,000/- which is quite inadequate. The children were aged 5 and 2 ½ years respectively at the time of the accident. Therefore, we feel that a compensation of Rs. 20,000/- would be reasonable for the loss of MACA.No.1264/2004 5 love and affection. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 11. The Tribunal awarded interest only @ 6% per annum which appears to be very low. The claimants are entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. 12. In the result, the claimant are entitled to an additional compensation of Rs. 2,14,000/-. They are entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. They are also entitled to proportionate cost. The third 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. MACA.No.1264/2004 6 MACA.No.1264/2004 7