IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 MFA.No. 441 of 2003() -------------------------------- OPMV.288/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT(S): PETITIONERS -------------------------------------------- 1. XAVIOUR AGED 67 YEARS S/O. FRANCIS RESIDING AT THRIKOANMALIL HOUSE, POST MUTTIL, MANDAD, VYTHIRI TALUK. 2. THRESSIAMMA AGED 62 YEARS, W/O. FRANCIS, D/O MATHAI, RESIDING AT THRIKOANMALIL HOUSE, POST MUTTIL, MANDAD, VYTHIRI TALUK. 3. FRANCIS AGED 38 YEARS, S/O. XAVIOUR, RESIDING AT THRIKOANMALIL HOUSE, POST MUTTIL, MANDAD, VYTHIRI TALUK. 4. CICILY AGED 34 YEARS D/O. XAVIOUR, RESIDING AT THRIKOANMALIL HOUSE, POST MUTTIL, MANDAD, VYTHIRI TALUK. 5. LILLY AGED 32 YEARS D/O. XAVIOUR RESIDING AT THRIKOANMALIL HOUSE, POST MUTTIL, MANDAD, VYTHIRI TALUK. 6. MINI AGED 30 YEARS D/O XAVIOUR, RESIDING AT THRIKOANMALIL HOUSE, POST MUTTIL, MANDAD, VYTHIRI TALUK. 7. SHINY AGED 23 YEARS D/O. XAVIOUR, RESIDING AT THRIKOANMALIL HOUSE, POST MUTTIL, MANDAD, VYTHIRI TALUK. 8. SINI AGED 21 YEARS D/O. XAVIOUR, RESIDING AT THRIKOANMALIL HOUSE, POST MUTTIL MANDAD, VYTHIRI TALUK. BY ADV. SRI.N.J.ANTONY RESPONDENT(S): RESPONDENTS ------------------------------------------------- 1. K.O.LAZER, AGED 38 YEARS S/O. OUSEPH, RESIDING AT KOOTHOOR HOUSE, MANDAD, MUTTIL AMSOM VYTHIRI TALUK, (DRIVER OF LORRY NO.KRZ 2295 D.L.NO NOT KNOWN). 2. NATIONAL INSURANCE CO.LTD., KALPANA COMPLEX, KALPETTA (LOCAL BARNCH OF INSURERS, MANJERI BRANCH) 3. A.K.RAHIM, ALAMKIZHAKKATTIL HOUSE, MUTTIL P.O., KALPETTA. ADV. SRI.E.M.JOSEPH FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = M.F.A. No.441 of 2003 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of November, 2008 J U D G M E N T ---------------------- Thomas P. Joseph, J. Son of appellants 1 and 2 met with a motor accident on 11.4.1996 and succumbed to the injuries. He was riding a motor cycle. Appellants alleged that the lorry insured with the third respondent and owned by the additional 4th respondent which was driven by the first respondent (in the O.P.) in a rash and negligent manner hit the motor cycle and thus caused the accident. Appellants claimed compensation from respondents 1 to 4 (later the second respondent was deleted from the party array). Tribunal found that the accident occurred due to the negligence of the first respondent and awarded a total sum of Rs.75,500/- as compensation. Contending that compensation awarded is meagre, appellants have preferred this appeal. 2. Heard. 3. Point for consideration is whether the appellants are entitled to any enhanced compensation. 4. The Point: Deceased was aged about 29 years at the time of the accident. MFA No.441 of 2003 -: 2 :- He was a painter by occupation. According to the appellants, the deceased was earning Rs.5,000/- per month. Tribunal, in the absence of other evidence to support that claim of the appellants fixed the monthly income at Rs.2,500/-. Though it is contended by the learned counsel for appellants that monthly income fixed is low, in the absence of acceptable evidence and considering the nature of the occupation of the deceased and his age, we are not inclined to accept that contention. Tribunal has rightly fixed the monthly income of the deceased as Rs.2,500/- Tribunal has fixed 6 as the multiplier. Though it is contended by learned counsel for appellants that Tribunal ought to have adopted a higher multiplier taking into account the age of the deceased we are not persuaded to accept that contention as well taking into account the age of appellants 1 and 2 on the date of the accident i.e., 60 and 55 years respectively, and that brothers and sisters of the deceased are majors. 5. Appellants 1 and 2 are the parents of the deceased aged 60 and 55 years respectively on the date of the accident. Appellants 4 to 6 are the sisters of the deceased. At the time of filing the application in the Tribunal appellants 7 and 8 were minors. Tribunal after consideration of the evidence observed that deceased would MFA No.441 of 2003 -: 3 :- have got married at the age of 30 and fixed the monthly contribution to the appellants as Rs.750/-. It is contended by the counsel for appellants that the monthly contribution fixed by the Tribunal is meagre. It is not disputed that the deceased was staying with appellants 1 and 2 and his minor sisters. There is no evidence to show that the deceased was utilising for his personal purpose his entire income less the sum of Rs.750/- fixed by the Tribunal as the monthly contribution. In the normal course and in the absence of contra evidence, deduction for personal expenses must be limited to 1/3rd of the income. There is no reason to retract from that course in this case. Taking into account the multiplier fixed by the Tribunal, we are inclined to fix the annual contribution to the parents as Rs.20,000/-. Thus the compensation payable for loss of contribution and dependency comes to Rs.1,20,000/- (20,000x6) as against Rs.48,000/- awarded by the Tribunal. Additional compensation payable to the appellants will be Rs.72,000/-. 6. It is also contended by the learned counsel for appellants that the compensation awarded on other counts are also low. But on going through the award and considering the facts and circumstances of the case and also taking into account the total amount of MFA No.441 of 2003 -: 4 :- compensation to which the appellants are found entitled, we are not inclined to accept that contention. Thus the additional compensation payable to the appellants is Rs.72,000/-. That amount will carry interest at the rate of 7.5% per annum from the date of application till realisation. Appeal is allowed in part. Over and above the compensation awarded by the Tribunal, appellants are allowed to realise Rs.72,000/- (Rupees Seventy two thousand only) with interest at the rate of 7.5% per annum from the date of application till realisation from respondents 1 to 3, jointly and severally. Second respondent being the insurer of the offending vehicle is directed to deposit the said amount in the Tribunal. On such deposit, appellants 1 and 2 together are permitted to withdraw one half of the amount. Rest of the amount can be withdrawn by appellants 3 to 8 in equal proportion. J.B. KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv MFA No.441 of 2003 -: 5 :- J.B. KOSHY & THOMAS P.JOSEPH, JJ. =================== M.F.A. NO.441 OF 2003 =================== J U D G M E N T 19TH NOVEMBER, 2008