IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 MACA.No. 18 of 2005() --------------------- OPMV.1076/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANTS/PETITIONERS: ----------------------------------------------------------------- 1. GOVINDAN NAIR @ KRISHNAN NAIR, ROPE MATTAM, MALAKKAPPARA POST, CHALAKUDY (VIA.)-680 721. 2. JANAKY, W/O. GOVINDAN NAIR @ KRISHNAN NAIR, DO. DO. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS: ------------------------------------------------ 1. M/S. PYARRY AGRO INDUSTRIES LTD., LOWER SHEIKKAL MUDI ESTATE, MURAKALI BAZAR POST, VIA.VALAPPARA, TAMILNADU. 2. LAKSHMANAN, KALLIANA PANTHAL ESTATE MURUKALI BAZAR POST, VALAPPARA VIA. TAMILNADU STATE, PIN-642 118. 3. THE MANAGER, NATIONAL INSURANCE CO.LTD., BRANCH COONUR, P.O. COONUR, TAMILNADU. FOR R1 SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE FOR R1 SRI.E.K.NANDAKUMAR FOR R1 SRI.A.K.JAYASANKAR NAMBIAR FOR R1 SRI.RAJAN P.KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: pkk A.K. BASHEER & P.Q. BARKATH ALI, JJ. ----------------------------------------------------- M.A.C.A. No. 18 OF 2005 --------------------------------------- DATED THIS THE 24TH DAY OF NOVEMBER, 2010 JUDGMENT Barkath Ali, J. Appellants are the claimants 2 and 3 in O.P(MV) No.1076/95 on the file of Motor Accidents Claims Tribunal, Irinjalakuda. In this appeal they challenge the judgment and award of the Tribunal dated April 30, 2004 awarding a compensation of ` 1,87,300/- for the loss caused to them on account of the death of deceased first claimant in a motor accident. 2. The accident happened on November 28, 1994 at about 6 p.m. while the deceased first claimant was riding his motor cycle bearing registration No. KCF 293, it collided head on with a lorry bearing registration No. TN 41A 872 at Malakkapara, as a result of which the deceased first claimant sustained serious injuries. 3. The deceased first claimant filed the O.P. before the Tribunal alleging negligence against the 2nd respondent, the M.A.C.A. No. 18 OF 2005 2 driver of the offending lorry claiming a compensation of `5,96,250/-. During the pendency of the O.P., he died as a result of the injuries sustained in the accident. The appellants who are the parents of the deceased were impleaded as claimants 2 and 3 in the O.P. 4. Respondents 1 and 2, the owner and driver of the offending lorry remained absent before the Tribunal. The 3rd respondent, the insurer of the offending lorry filed a written statement admitting the policy but attributed negligence to the deceased. The 3rd respondent also contended that the deceased died not as a result of the injuries sustained in the accident. 5. PWs 1 to 4 were examined and Exts. A1 to A9 were marked on the side of the claimants. Exhibit X1 was also marked. No evidence was adduced by the contesting 3rd respondent. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the 2nd respondent and that the first claimant M.A.C.A. No. 18 OF 2005 3 died as a result of the injuries sustained in the accident and awarded a compensation of ` 1,87,300/- with interest at the rate of 6% per annum from the date of petition till realization and proportionate cost. Claimants 2 and 3 have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. Heard the counsel for the appellants and counsel for the Insurance Company. 7. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the 2nd respondent was not challenged in this appeal. It is also not disputed that the deceased first claimant died as a result of the injuries sustained in the accident. Therefore, the only question which arise for consideration is whether the claimants are entitled to any enhanced compensation ? 8. The Tribunal awarded a total compensation of ` 1,87,300/-. The break up of the compensation awarded is as under: M.A.C.A. No. 18 OF 2005 4 Loss of dependency : ` 76,800 Pain and suffering : ` 5,000 Loss of love and affection : ` 5,000 Funeral expenses : ` 3,000 Medical expenses : ` 97,500 ----------------- Total : ` 1,87,300 ======= 9. Counsel for the claimants sought enhancement of the compensation awarded for the loss of dependency, pain and suffering endured, loss of love and affection and for transportation expenses. 10. The Tribunal took the monthly income of the deceased first claimant as ` 1,200/- and after deducting 1/3 of his personal expenses, took the balance amount of Rs. 800/- as his monthly contributions to his family. The Tribunal adopted a multiplier of 8 and awarded Rs. 76,800/- towards loss of dependency. According to the appellants, the deceased first claimant was working in an arrack shop earning to 1,800/- per month. PW3 is his employer. Taking into consideration the above aspects, we feel that the monthly income of the M.A.C.A. No. 18 OF 2005 5 claimant can be reasonably fixed at ` 1800/-per month as claimed by claimants. As the deceased was the only son of the appellants, we feel that 1/3 of his income can be deducted for his personal expenses and the balance amount of ` 1,200/- can be taken as his monthly contribution to his family which comes to Rs. 14,400/- per annum. 11. The Tribunal took the multiplier 8 on the ground that appellants were aged 62 and 52 respectively at the time of accident. But actually the 2nd appellant, the mother was aged 49 at the time of accident. She was aged 52 at the time of trial in 2004. Therefore, we feel that a multiplier of 11 would be reasonable in this case. Thus, calculated for the loss of dependency, appellants are entitled to a compensation of ` 1,58,400/-. Therefore, the claimants are entitled to an additional compensation of ` 81,600/- for loss of dependency. 12. The Tribunal awarded Rs.5,000/- towards pain and suffering endured by the deceased which appears to be very M.A.C.A. No. 18 OF 2005 6 low. The date of accident was on November 28, 1994. The deceased died in September 1996. Therefore, we feel that a compensation of Rs. 25,000/- would be reasonable for the pain and suffering endured by the deceased. 13. The Tribunal awarded Rs. 5,000/- for loss of love and affection. As the claimant was the only son of the appellants, we feel that a compensation of Rs. 20,000/- would be reasonable on this count. 14. No compensation was awarded by the Tribunal for transportation expenses. The accident occurred at Malakkapara and the deceased underwent treatment at K.G. Hospital, Coimbatore. Certificates produced by him shows that several times he has to visit the said hospital. Therefore, towards transportation expenses, a compensation of ` 20,000/- would be reasonable. 15. As regards, compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. M.A.C.A. No. 18 OF 2005 7 16. Thus, the appellants are found entitled to an enhanced compensation of Rs. 1,36,600/-. They are entitled to interest at the rate of 7.5% per annum from the date of petition till realization for the compensation already awarded and for enhanced compensation. The 3rd respondent, being the Insurer of the offending lorry, shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The above appeal is disposed of as found above. A.K. BASHEER JUDGE P.Q. BARKATH ALI JUDGE PKK M.A.C.A. No. 18 OF 2005 8