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 17TH MARCH 2010 / 26TH PHALGUNA 1931 MACA.No. 1289 of 2005() ------------------------------- OPMV.3637/1997 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANTS/CLAIMANTS: --------------------------------------- 1. MARYKUTTY, AGED 56 YEARS, W/O. LATE MATHEW. 2. SALI MATHEW, AGED 38 YEARS, D/O. -DO-. 3. FANCY MOHAN, AGED 36 YEARS, D/O. -DO-. 4. BIJU MATHEW, AGED 33 YEARS, S/O. -DO-. ALL ARE RESIDING AT MANTHUVALLIL HOUSE, WEST OF SARESWATHYKULAM TEMPLE, T.V. PURAM P.O., VAIKOM. BY ADV. SRI.R.SUDHISSH. R. SMT.M.MANJU RESPONDENTS: RESPONDENTS: ---------------------------------------------- 1.P.C. ABOOBACKER, PERUMATTOM HOUSE, PERINGALA, KUMARAPURAM P.O. 2.C.R. SHIJU, CHAKKALAKKAL HOUSE, THAMMATHIMATTOM KARA, ERNAKULAM DISTRICT. 3.NATIONAL INSURANCE CO. LTD., M.G. ROAD, COCHIN-35. ADV. SRI.A.T.ANILKUMAR FOR R1 SRI.JOE KALLIATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------------ M.A.C.A NO. 1289 OF 2005 -------------------------------------- DATED THIS THE 17TH DAY OF MARCH 2010 JUDGMENT ---------------- Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P.(MV) No. 3637/97 on the file of Motor Accidents Claims Tribunal, Ernakulam challenge the judgment and award of the Tribunal dated 2-7-2004 awarding a compensation of Rs. 96,500/- for the loss caused to claimants on account of the death of deceased Mathew in a motor accident. 2. The facts leading to this appeal in brief are these: Claimants are widow and two major daughters and one major son of the deceased Mathew. He was aged 60 at the time of accident. . He was a retired Govt. servant getting a monthly pension of Rs. 4,000/-. He was also getting Rs. 3,000/- per month from agricultural work according to the claimant. On 13.11.1997 at about 9.30 A.M while the deceased was crossing the road at Lissy M.A.C.A NO. 1289 OF 2005 2 Junction, Ernakulam, he was knocked down by the bus bearing registration No. KCE/ 6424 driven by the 2nd respondent. The deceased Mathew sustained very serious injury and he succumbed to the injuries sustained while undergoing treatment at Medical Trust Hospital, Ernakulam on the next day. The claimants claimed a compensation of Rs. 4 lakhs. The 1st respondent as the owner, the 2nd respondent as the driver and the 3rd respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimants. 3. Before the Tribunal, all the respondents entered appearance. The 1st respondent, the owner of the offending bus filed a written statement admitting the accident, but denying the liability as the accident occurred due to the negligence on the part of the deceased. The second respondent, the driver of the offending bus did not file any written statement before the Tribunal. The third respondent, the insurer of the bus filed a M.A.C.A NO. 1289 OF 2005 3 written statement admitting the policy. 4. The first claimant was examined as PW1 and Exts. A1 to A7 were marked on the side of the claimants. No additional evidence was adduced by the respondents. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the 2nd respondent, the driver of the offending bus, and awarded a compensation of Rs. 96,500/-. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellants/claimants and that of 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 2nd respondent, the driver of the offending bus is not seriously challenged in this appeal. Therefore, the only question which arises for consideration in this appeal is whether the M.A.C.A NO. 1289 OF 2005 4 claimants are entitled to any enhanced compensation ? 7. The Tribunal awarded a total compensation of Rs. 96,500/-. The break up of the award amount is as under; Transportation charge Rs. 1,000/- Carrying the dead body to home Rs. 2,500/- Funeral expense Rs. 3,000/- Loss of consortium Rs. 5,000/- Loss of love and affection Rs. 5,000/- Pain and suffering Rs. 7,500/- Loss of estate Rs. 2,500/- Medical expense Rs. 10,000/- Loss of dependency Rs. 60,000/- 8. The counsel for the claimants sought enhancement of compensation for the loss of dependency. 9. The Tribunal took the monthly income of the deceased as Rs. 3,000/- . Since the first claimant, widow is getting Rs. 2,000/- as family pension, the Tribunal took Rs. 1,000/- per month as the monthly contribution of the deceased to his family and by adopting multiplier as 5, awarded Rs. 60,000/- for the loss of dependency. In the light of the principle laid down in M.A.C.A NO. 1289 OF 2005 5 Sarala Varma Vs. Delhi Transport Corporation & Anr. (A.I.R 2009 (6) SCC 121) the only 1/3 of the income of the deceased can be deducted towards personal expenses of the deceased. Therefore, in this case, we feel that the monthly contribution of the deceased to his family can be reasonably fixed as Rs. 2,000/- per month, ie. after deducting 1/3 from the monthly income of Rs. 3,000/-. The multiplier adopted by the Tribunal as 5 is not seriously challenged in this appeal as the deceased was aged 60 at the of accident. Thus calculated the loss of dependency, the claimant is entitled to a compensation of Rs. 1,20,000/-, an additional sum of Rs. 60,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, are not disturbing the same. 10. Thus the claimants are entitled to an additional compensation of Rs. 60,000/-. They are entitled to interest at the rate of 9% per annum from the date of petition till realization and M.A.C.A NO. 1289 OF 2005 6 proportionate cost. The 3rd respondent, insurer shall deposit the amount within two months from the date of receipt of copy of this judgment before the Tribunal with notice to the claimants. 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 pkk