IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 MACA.No. 730 of 2004() ---------------------- OPMV.1441/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANTS/PETITIONERS ------------------------------------ 1. C.LITTLE FLOWER, W/O.LATE JUSTIN, DOOR NO. 17/74, PORT STREET, COLACHEL, KANYAKUMARI DISTRICT. 2. TINA JANNISS (MINOR) AGED 9 YEARS, D/O. LATE JUSTIN, RESIDING AT DOOR NO. 17/74 PORT STREET, COLACHEL, KANYAKUMARI, (REPRESENTED BY HER MOTHER, 1ST APPELLANT). 3. JANISH (MINOR), AGED 7 YEARS, D/O. C.LITTLE FLOWER, RESIDING AT DOOR NO.17/74, PORT STREET, COLACHEL, KANYAKUMARI, (REPRESENTED BY HER MOTHER 1ST APPELLANT). 4. KATHREENAL, M/O.LATE JUSTIN, RESIDING AT DOOR NO 17/74, PORT STREET, COLOCHEL, KANYAKUMARI DISTRICT. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S): RESPONDENTS -------------------------- 1. RAJASEKHARAN, S/O.RAJAYYAN, KULAVILAYIL, KULACHEL POST, PEETHAPURAM PANCHAYATH, KALKULAM TALUK, KANYAKUMARI DISTRICT. 2. S.MOHANRAJ, S/O.SINGARAYAN, KUZHIVILEL, KULACHEL POST, KANYAKUMARI DISTRICT. 3. THE ORIENTAL INSURANCE CO.LTD., NAGAR COIL BRANCH. 4. M.P.RAMACHANDRAN PILLAI, S/O. PARAMESWARAN PILLAI, KANDATHIL VEEDU, BHARANIKKAVU PANCHAYATH, WARD NO.IV, MAVELIKKARA. 5. VINOD, S/O.BALAKRISHNAN, C/O. M.P.RAMACHANDRAN PILLAI, KANDATHIL VEEDU, BHARANIKAVU PANCHAYATH, WARD NO. IV, MAVELIKKARA. 6. THE UNITED INDIA INSURANCE CO.LTD., KAYAMKULAM BRANCH. ADV. SRI.JOHN JOSEPH VETTIKAD FOR R6 SRI.M.JACOB MURICKAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 730 of 2004 ------------------------------------------------------ Dated: JUNE 22, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 1441/1997 on the file of the Motor Accidents Claims Tribunal, Alappuzha, who are the widow, two minor children and mother of deceased Justin, challenge the judgment and award of the Tribunal, dated,August 4, 2003 awarding a compensation of Rs.4,43,000/- for the loss caused to them on account of the death of Justin in a motor accident. 2. The facts leading to this appeal in brief are these: Deceased Justin was a Marine Diesel Mechanic conducting workshops at Kulachal as well as at Kochi and was aged 29 at the time of the accident. On May 13, 1997 at about 4.30 a.m. the deceased was travelling in a van bearing registration No.TN 74A 9054 along Alappuzha - Ernakulam National Highway. When it reached near Auto Cast, Cherthala, another van bearing registration No.KL-4/C 9919 came at a high speed and collided with the van in which the deceased was travelling. The deceased sustained very serious injuries and he succumbed to the injuries while undergoing treatment in the hospital on the same day M.A.C.A.730 of 2004 2 at 7.15 a.m. The claimants are the wife, two minor children and the mother of the deceased. According to the claimants the accident occurred due to the negligence on the part of both the drivers. Respondents 1 and 4 are the owners, respondents 2 and 5 are the drivers and respondents 3 and 6 are the insurers of the vehicles involved in the accident. They are jointly and severally liable to pay compensation to the claimants who are the legal heirs and dependants of the deceased. The claimants claimed a compensation of Rs.15 lakhs. 3. Respondents 1 and 4, the owners, and respondents 2 and 5, the drivers of the offending vehicles remained absent before the Tribunal and were set ex parte. Respondents 3 and 6, insurers of the offending vehicles, entered appearance and filed written statements admitting the policies of the vehicles. They attributed negligence to the driver of the other vehicle. 4. PWs.1 to 3 were examined and Exts.A1 to A14 were marked on the side of the claimants before the Tribunal. On the side of the respondents, Ext.B1 was marked. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence on the part of the 2nd respondent, driver of the van bearing registration No.TN 74A 9054 and awarded a compensation of Rs.4,43,000/- with M.A.C.A.730 of 2004 3 interest at the rate of 6% per annum from the date of petition till realisation and a cost of Rs.4750/- against respondents 1 to 3. 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 the counsel for the Insurance Companies. 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 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.4,43,000/-. The break up of the compensation awarded is as under:- loss of dependency - Rs.3,88,800/- loss of consortium - 15,000/- loss of love, affection and guidance - 15,000/- pain and suffering - 10,000/- loss of estate - 5,000/- transportation - 5,000/- funeral expenses - 4,000/- --------------------- Total - 4,42,800 rounded off - 4,43,000 ============= M.A.C.A.730 of 2004 4 8. The counsel for the appellants/claimants sought enhancement of the compensation for the loss of dependency and loss of love and affection. The Tribunal took the monthly income of the deceased as Rs.2700/- which comes to Rs.32,400/- per annum and after deducting 1/3rd towards his personal expenses, took Rs.21,600/- per annum as his annual contribution to his family and adopting a multiplier of 18, awarded Rs.3,88,800/- as the compensation for the loss of dependency. On the side of the claimants Ext.A8 passport of the deceased was produced showing that he was in Saudi Arabia till the end of October 1994. Ext.A10 shows that the deceased had completed a course in the trade of Mechanic (Diesel) during 1985-86. Ext.A12 is the certificate which shows that he was working as a Diesel Mechanic. Taking into consideration all these aspects, we feel that the monthly income of the deceased can be taken as Rs.3000/-, which works out to Rs.36,000/- per annum. After deducting 1/3rd for his personal expenses, the balance amount of Rs.24,000/- can be taken as his annual contribution to his family. The multiplier 18 adopted by the Tribunal is not seriously challenged as the deceased was aged only 29 at the time of the accident. Thus calculated, for the loss of dependency, the claimants are entitled to get Rs.4,32,000/-. Thus, on this count the claimants are entitled to an additional compensation M.A.C.A.730 of 2004 5 of Rs.43,200/-. 9. The Tribunal awarded Rs.15,000/- for loss of love and affection which appears to be very low. The 1st claimant widow was aged 26 and claimants 2 and 3, the children, were aged 1½ years and 3 years respectively. Therefore for loss of love and affection, we feel that a compensation of Rs.20,000/- would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 10. Thus the claimants are entitled to an additional compensation of Rs.48,200/-. They are entitled to interest at the rate of 7.5% per annum from the date of petition till realisation and proportionate cost. The 3rd 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 mt/-