IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 MACA.No. 1311 of 2005() ----------------------- OPMV.1177/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): PETITIONERS: ------------------------------------- 1. SRI. MOHAMMED MOIDEEN, S/O. KADER MOIDEEN RAWTHER, AGED 63 YEARS, MANCHIRA, ANAMARI P.O., KOLLENGODE, PALAKKAD. 2. SMT. SULEKHA, W/O.MOHAMMED MOIDEEN RAWTHER, AGED 58 YEARS, MANCHIRA, ANAMARI P.O., KOLLENGODE, PALAKKAD. 3. SRI. KITHER MOHAMMED, S/O. MOHAMMED MOIDEEN RAWTHER, AGED 42 YEARS, MANCHIRA, ANAMARI P.O., KOLLENGODE, PALAKKAD. 4. SMT. ABIDA, D/O. MOHAMMED MOIDEEN RAWTHER, AGED 36 YEARS, MANCHIRA, ANAMARI P.O., KOLLENGODE, PALAKKAD. 5. SRI. BASHEER, S/O. MOHAMMED MOIDEEN RAWTHER, AGED 34 YEARS, MANCHIRA, ANAMARI P.O., KOLLENGODE, PALAKKAD. 6. SRI.MOHAMMED RAFEEQIN, S/O. MOHAMMED MOIDEEN RAWTHER, AGED 30 YEARS, MANCHIRA, ANAMARI P.O., KOLLENGODE, PALAKKAD. 7. SMT.SHAKEELA BEEVI, D/O. MOHAMMED MOIDEEN RAWTHER, AGED 20 YEARS, MANCHIRA, ANAMARI P.O., KOLLENGODE, PALAKKAD. BY ADV. SRI.GEORGE THOMAS (MEVADA) SMT.VIDYA GOPINATH MACA NO.1311/2005 2 RESPONDENT(S): RESPONDENTS: --------------------------- 1. SRI. M.S. PREMACHANDRAN, S/O. SUKUMARAN, NAVAKKODE HOUSE, THENUR,PALAKKAD. 2. SRI. PRAKASH, S/O. PAZHANIMALA, AGED 32 YEARS, THOOPALLAM HOUSE, KOTTEKKAD HOUSE, PALAKKAD. 3. THE ORIENTAL INSURANCE CO. LTD., SHOBHA T.S.M. COMPLEX, 1ST FLOOR, V.H. ROAD, PALAKKAD. 4. SRI. SALUDEEN, S/O. MOHAMMED MOIDEEN, AGED 38 YEARS, MANCHIRA, KIZHAKKETHALA AMSOM, ANAMARI P.O., KOLLENGODE, PALAKKAD. ADV. SRI.VPK.PANICKER FOR R3 SRI.V.P.K.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.1311 of 2005 -------------------------------------- Dated this the 10th day of November, 2008. JUDGMENT Thomas P.Joseph, J. The son of the appellants 1 and 2 and brother of appellants 3 to 7 sustained fatal injuries in a motor vehicle accident involving a parcel lorry bearing registration No.KL/11 D-6759 driven by him and bus bearing registration No.KL/9 D-595 driven by the second respondent on 15.6.1998. Appellants claimed compensation to the tune of Rs.7 lakhs from the respondents. Learned Tribunal after consideration of the evidence awarded Rs.2,05,250/- as compensation with 9% interest per annum from the date of application till realisation and cost of Rs.500/-. The third respondent was directed to deposit the amount. Dissatisfied with the quantum of compensation, appellants have preferred this appeal. 2. Heard. 3. The only point for consideration is whether compensation awarded is low. 4. It is not disputed, and proved by the appellants that the deceased was aged 28 years at the time of accident and death. He was driving the parcel lorry belonging to Kerala Roadways Limited, at the relevant time. Appellants MACA No.1311/2005 2 claimed that the deceased was earning Rs.6,000/- per month and produced Ext.A1, a certificate issued by the employer. Learned Tribunal was however, not inclined to accept Ext.A1 and instead, fixed the monthly income at Rs.3,000/-. It is contended by the learned counsel for appellants that the Tribunal was not correct in discarding Ext.A1. 5. We have gone through the award and find that learned Tribunal for justifiable reasons was not inclined to place reliance on Ext.A1 which is not even properly proved by examining the employer. Nor was the relevant register supporting payment as stated in Ext.A1 produced before the Tribunal. Hence we do not find reason to interfere with that finding of the learned Tribunal that Ext.A1 cannot be accepted. 6. At the same time, the question whether the monthly income of the deceased fixed by the Tribunal is correct, required consideration. Learned counsel for appellants placed reliance on the decision in New India Assurance Company Ltd. v. Smt. Kalpana and others (2007 STPL (LE) 37889 SC) where in the case of a professional driver, his monthly income was fixed at Rs.4,000/-. It is proved in evidence that deceased who aged 28 years was a professional driver. Hence, considering the wages payable to professional drivers of heavy vehicles in State of Kerala during the relevant time, it could be said that the deceased would have earned Rs.180/- per day for 25 days in a month. In the circumstances the monthly income of the deceased is fixed as Rs.4,500/-. MACA No.1311/2005 3 7. It is contended by learned counsel for third respondent that since the deceased was a bachelor and appellants 1 and 2 had other sons as well, it may not be taken that two third of the monthly income of the deceased was being provided to appellants 1 and 2. In the absence of evidence to show that the deceased used to spent more than one third of his earnings for his personal expenses, we are not inclined to accept that contention. After deducting one third for the personal expenses of the deceased, the contribution payable to appellants 1 and 2 per month came to Rs.3,000/-. 8. Though it is contended by learned counsel for the appellants that learned Tribunal should have taken a higher multiplier than '8' adopted in the case, considering the fact that appellants 1 and 2 were aged 63 and 58 respectively at the time of accident, we are unable to accept that contention. If that be so, compensation payable to the appellants on account of loss of contribution and dependency comes to Rs.2,88,000/- (3000 x 12 x 8). Learned Tribunal has awarded Rs.1,92,000/- on that count. Therefore, the additional compensation payable to the appellants on that count comes to Rs.96,000/-. 9. Though it is contended by the learned counsel that compensation awarded on other counts is also low, on a consideration of all relevant factors and considering the total amount found due to the appellants, we are not inclined to accept that contention. MACA No.1311/2005 4 10. Thus, the additional compensation payable to the appellants comes to Rs.96,000/-. Appellants are entitled to get interest on the said amount at the rate of 7.5% per annum from the date of application till realisation. This appeal therefore, is allowed in part allowing the appellants to realise Rs.96,000/- (Rupees Ninetysix thousand only) as additional compensation with interest at the rate of 7.5% per annum from the date of application till realisation from the respondents. Third respondent being the insurer of the offending vehicle is directed to deposit the said amount in the Tribunal within one month from this day. On such deposit, appellants are permitted to withdraw the said amount at the ratio fixed by the learned Tribunal. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks