IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 MACA.No. 167 of 2005() ---------------------- OPMV.2955/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANTS/CLAIMANTS 1 TO 5 IN OP(MV): ------------------------------------------------------------------ 1. S.GIRIJA, AGED 39 YEARS, W/O. LATE NARAYANAN NAIR, 39/3283 G, CORPORATION STAFF QUARTERS, K.S.N. MENON ROAD, RAVIPURAM, COCHIN-16 AND NOW RESIDING AT 13/1829 A, RICE RESEARCH ROAD, VYTTILA, COCHIN-19. 2. K.SUNITHA, AGED 16 YEARS, D/O. LATE NARAYANAN NAIR, -DO-. 3. K.NITHIN, AGED 10 YEARS, S/O. LATE NARAYANAN NAIR, MINORS 2 & 3, REPRESENTED BY THEIR MOTHER AND LEGAL GUARDIAN GIRIJA, W/O. LATE NARAYANAN NAIR -DO-. 4. N.MADHAVAN NAIR, AGED 65 YEARS, S/O. NARAYANAN NAIR (DIED). 5. K.K.BHAVANIAMMA, AGED 60 YEARS, W/O. MADHAVAN NAIR (DIED ON 27/7/2003). 6. KOMALAVALLY K., AGED 56 YEARS, D/O. MADHAVAN NAIR, KUKNNATH NANDANAM, OLIAPPURAM P.O., KOOTHATTUKULAM, ERNAKULAM DISTRICT. 7. PANKAJAVALLY K., AGED 52 YEARS -DO-. 8. UNNIKRISHNAN K., AGED 43 YEARS, -DO-. BY ADVS. SRI.R.SUDHISH, SRI.MANJU SUDHISH. Kss ..2/- ....2... MACA NO.167/2005 RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. N.A.SHAMSUDHEEN, NEDUMPARAMBIL HOUSE, B.M.C. P.O., THRIKKAKARA, COCHIN-21. 2. RAJU, S/O. PAPPAN, KANNAZHETHU HOUSE, NEAR T.V.STATION, KAKKANAD P.O., COCHIN-30. 3. NATIONAL INSURANCE CO. LTD., BY ITS REGL. MANAGER, REGL. OFFICE, MUTHOOT TOWERS, M.G.ROAD, COCHIN-35. 4. ORIENTAL INSURANCE CO. LTD., M.G.ROAD, COCHIN-16. R3 BY ADV. SRI.M.A.GEORGE R4 BY ADV. SRI.M.JACOB MURICKAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No. 167 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 10th day of March, 2011 JUDGMENT Barkath Ali, J. Appellants are the claimants in O.P.(MV) No.2955 of 1996 on the file of the Motor Accidents Claims Tribunal, Ernakulam. They are the wife, children and parents of Narayanan Nair who died in a motor accident. In this appeal they challenge the judgment and award of the Tribunal dated March 10, 2003 awarding a compensation of Rs.3,13,000/- for the loss caused to them on account of the death of Narayanan Nair in a motor accident. 2. According to the claimants, on July 4, 1996 at about 6.45 p.m. while deceased Nrayanan Nair was riding his motor cycle bearing registration No.KL-7C-759 along Ernakulam – Durbar Hall road and when he reached in front of Cochin Corporation Yard, he was knocked down by a bus bearing registration No.KBE 8071, driven by the second respondent. He died on the spot. Alleging negligence MACA 167/2005 2 against the second respondent, the claimants filed the O.P. before the Tribunal claiming a compensation of Rs.10 lakhs. 3. Respondents 1 and 2, the owner and driver of the offending bus, remained absent before the Tribunal. The third respondent, the insurer of the offending bus, filed a written statement admitting the policy but attributed negligence to the deceased. During the pendency of the O.P. the insurer of the motor cycle was impleaded as Addl. 4th respondent. The 4th respondent filed a written statement admitting the policy but contended that the accident occurred due to negligence of the driver of the bus. 4. PWs.1 to 3 were examined and Exts. A1 to A15 were marked on the side of the claimants. No evidence was adduced by the respondents. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to negligence of the second respondent, driver of the offending bus, and awarded a compensation of Rs.3,13,000/- with interest @ 9% per annum from the date of petition till realization and proportionate costs. The MACA 167/2005 3 claimants have come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the claimants and the learned counsel for Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the second respondent, driver of the offending bus, and that the deceased died as a result of the injuries sustained in the accident are 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.3,13,000/-. Break up of the compensation awarded is as under:- Pain and suffering : Rs. 5,000 Loss of consortium : Rs. 10,000 Loss of love and affection : Rs. 5,000 Transportation and : Rs. 2,500 funeral expenses. Loss of estate : Rs. 2,500 Loss of dependency : Rs.2,88,000 ------------------ Total : Rs.3,13,000 MACA 167/2005 4 ======== 8. The learned counsel for the claimants sought enhancement of the compensation for the loss of dependency and on other heads. 9. The Tribunal took the monthly income of the deceased as Rs.6,000/- and after deducting 1/3rd for his personal expenses, balance amount of Rs.4,000/- was taken as his monthly contribution to his family. The Tribunal further deducted Rs.2,000/- per month, as the first claimant widow was getting a monthly pension of Rs.2,000/- and adopted a multiplier of 12 and awarded a compensation of Rs.2,88,000/- for the loss of dependency. Deceased was aged 41 at the time of the accident and was employed as Junior Health Inspector Grade II in the Food Corporation of India earning a salary of Rs.4,070/- per month. Ext.A14 is his salary certificate proved by PW3. Monthly income of the deceased fixed by the Tribunal appears to be excessive. Taking into consideration the future prospects of the deceased in employment and in the light of the principles MACA 167/2005 5 laid down in a decision of the Supreme Court in Sarala Varma V. Delhi Transport Corporation (AIR 2009 SC 3104 , we feel that income of the ceased can reasonably be fixed at Rs.5,300/- i.e, Rs.4,070/- + 30% of the said amount. The Tribunal deducted 1/3rd for his personal income and another Rs.2,000/- the monthly pension received by the widow. It is settled law that pension received by the legal heirs of the deceased cannot be deducted from the income of the deceased while assessing the loss of dependency in fatal accident cases. Further in the light of the principles laid down in Sarala Varma's case (Supra) as there are 5 dependents in this case only 1/4th need be deducted from the income of the deceased for his personal expenses. Thus yearly contribution of the deceased to his family comes to Rs.47,700/- (Rs.5,300/- x 12 x 3/4). The Tribunal adopted multiplier of 12. The deceased was aged only 41 at the time of the accident. Therefore, we feel that multiplier of 14 would be reasonable in this case. Thus calculated for loss of dependency the claimants are entitled to a compensation of MACA 167/2005 6 Rs.6,67,800/- (Rs.47,700/- x 14). Thus the claimants are entitled to an additional compensation of Rs.3,79,800/- on this count. 10. The Tribunal awarded Rs.5,000/- for loss of love and affection and Rs.10,000/- for loss of consortium, which appear to be very low. Taking into consideration the age of the children, we feel that a compensation of Rs.25,000/- would be reasonable for loss of love and affection. Having regard to the young age of the widow, we feel that a compensation of Rs.15,000/- would be reasonable for loss of consortium. 11. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore,we are not disturbing the same. Regarding the apportionment of the compensation amount and disbursement of the same, the direction of the Tribunal will stand. 12. In the result, the claimants are found entitled to additional compensation of Rs.4,04,800/- with interest @ MACA 167/2005 7 7.5% p.a. from the date of petition till realization and proportionate costs. The third respondent being the insurer of the offending bus shall deposit the amount within two months from the date of receipt of a copy of this judgment 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. mn.