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. 584 OF 2004() ------------------------------------ OPMV.68/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANTS/PETITIONERS. ---------------------------------------- 1. K.K. CHANDRIKA, W/O.LATE SRI.MANI ACHARI, SARASWATHY NIVAS, VANDIPURA, PALAYAMKUNNU, CHEMMARUTHI VILLAGE, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM. 2. M. ANOOP(MINOR), S/O.LATE MANIACHARI, SARASWATHY NIVAS, VANDIPURA, PALAYAMKUNNU, CHEMMARUTHI VILLAGE, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM. 3. M. AJU, (MINOR), S/O.LATE MANIACHARI, SARASWATHY NIVAS, VANDIPURA, PALAYAMKUNNU, CHEMMARUTHI VILLAGE, CHIRYAINKIL TALUK, THIRUVANANTHAPURAM. 4. AIDA (MINOR), D/O.LATE MANIACHARI, SARASWATHI NIVAS, VANDIPURA, PALAYAMKUNNU, CHEMMARUTHI VILLAGE, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM. 5. SMT.B. SWARNAMMAL, W/O.LATE KUMARAVELUACHARI, SARASWATHY NIVAS, VANDIPRUA, PALAYAMKUNNU, CHEMMARUTHI VILLAGE, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM. BY ADV. SRI.P.K.RAVI KRISHNAN, SRI.ANCHAL C.VIJAYAN. MACA.NO. 584 OF 2004 RESPONDENTS/RESPONDENTS: ------------------------------------------------ 1. S. SURESH, S/O.SUKUMARA PILLAI, SANTHABHAVAN, CHERUKUNNAM, VARKALA, THIRUVANANTHAPURAM DISTRICT. 2. BOBBY, S/O.SETHU, BOBY VILASOM VEEDU, MANALAYAM, POREDAM, CHADAYAMANGALAM, KOLLAM DISTRICT. 3. THE BRANCH MANAGER, M/S. UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, ASHHAR COMPLEX, ATTINGAL. R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No. 584 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 10th day of March, 2011 JUDGMENT Barkath Ali, J. Appellants are the claimants in O.P.(MV) No.68 of 2000 on the file of the Motor Accidents Claims Tribunal, Punalur. They are the widow, 3 minor children and mother of Mani Achari who died in a motor accident. In this appeal they challenge the judgment and award of the Tribunal dated November 7, 2003 awarding a compensation of Rs.2,20,200/- for the loss caused to them on account of the death of Mani Achari in a motor accident. 2. The accident occurred on November 14, 1999 at about 11.30 a.m. at Kalladathanny, near Poredom. While deceased Mani Achari along with others were travelling in a bus bearing registration No.KRN/3681 along Chadayamangalam – Pallikkal public road, driven by the second respondent, it toppled and fell into a canal, as a result of which Mni Achari sustained serious injuries and he succumbed to the injuries sustained MACA 584/2004 2 while undergoing treatment in Medical College Hospital, Thiruvananthapuram. Alleging negligence against the second respondent, the claimants filed the O.P. before the Tribunal claiming a compensation of Rs.3,00,000/-. 3. Respondents 1 and 2, the owner and driver of the offending bus, remained absent and they were set ex parte by the Tribunal. The third respondent, insurer of the offending bus, filed a written statement admitting policy of the vehicle. This O.P. was jointly tried along with other O.Ps. filed by legal heirs of other deceased persons who died in the accident and the persons who sustained injuries in the accident and a common award was passed. PWs.1 to 27 were examined and Exts. A1 to A89 were marked on the side of the claimants. Ext.B1 was marked on the side of the respondents. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to the negligence of the second respondent driver of the bus and awarded a compensation of Rs.2,20,200/- with interest @ 6% per annum from the date of petition till realization and cost of Rs.1,000/-. The claimants MACA 584/2004 3 have come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 4. Heard the learned counsel for the claimants and the learned counsel for the Insurance Company. 5. 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 ? 6. The Tribunal awarded a total compensation of Rs.2,20,200/-. Break up of the compensation awarded is as under:- Transportation : Rs. 1,000 Funeral expenses : Rs. 2,000 Pain and suffering : Rs. 10,000 Loss of love and affection : Rs. 10,000 Loss of consortium : Rs. 10,000 Loss of dependency : Rs.1,87,200 ------------------ Total : Rs.2,20,200 ======== MACA 584/2004 4 7.Learned counsel for the claimants sought enhancement of the compensation for the loss of dependency and on other heads. 8. The Tribunal took the monthly income of the deceased at Rs.1,800/- and after deducting 1/3rd for his personal expenses balance amount of Rs.1,200/- per month was taken as his monthly contribution to his family and adopted multiplier of 13, as he was aged 46 at the time of the accident and awarded a compensation of Rs.1,87,200/- for the loss of dependency. According to the claimants, the deceased was conducting jewellery works and was earning Rs.6,000/- per month. Ext.A49 is the notice issued by the panchayat and Ext.A51 is bill book. Taking into consideration all these aspects, we feel that his monthly income can reasonably be fixed at Rs.4,000/-. The Tribunal deducted 1/3rd for his personal expenses. As there are 5 dependents, we feel that only 1/4th need be deducted for the personal expenses of the deceased. Thus monthly contribution of the deceased to his family can reasonably be fixed at Rs.3,000/-. The multiplier adopted by the Tribunal as MACA 584/2004 5 13 is not seriously challenged. Thus the claimants are entitled to a compensation of Rs.4,68,000/- (Rs.3,000/- x 12 x 13) for the loss of dependency. Thus the claimants are entitled to an additional compensation of Rs.2,81,000/- on this count. 9. The Tribunal awarded Rs.10,000/- 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 Rs.25,000/- would be reasonable for loss of love and affection. Having regard to the age of the widow, we feel that Rs.15,000/- would be reasonable for loss of consortium. 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 and disbursement of the same, the direction of the Tribunal will stand. 10. There is another aspect in this case. The claimants claimed only a compensation of Rs.3 lakhs. Now the total compensation comes to Rs.5,21,200/-. The counsel for the Insurance Company would content that the compensation MACA 584/2004 6 awarded should be limited to the compensation claimed. There is no substance in the above contention. 11. The Apex Court in Nagappa V. Gurudayal Singh (AIR 2003 SC 674) considered the above question and held thus:- “Firstly under the provisions of the Motor Vehicles Act, 1988 (hereinafter referred to as the Motor Vehicles Act), there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case, where from evidence brought on record if Tribunal/court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. Only embargo is—it should be just compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence.” With reference to section 168 of the Act, the Apex Court has observed in the above decision thus:- “sub-section (4) of section 166 of the Act provides that the Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act. Section 168 of the Act empowers MACA 584/2004 7 the Claims Tribunal to make an award determining the amount of compensation which appears to be just. The only requirement for determining the compensation is that it must be just and that there is no other limitation or restriction on its power for awarding just compensation.” 12. In the present case the deceased was the sole breadwinner of his family, consisting of the widow and three minor children. Accepting the principles laid down in the above decision and taking into consideration the facts and circumstances, even though the claimants claimed a compensation of Rs.3,00,000/-, we are awarding a compensation of Rs.5,21,200/-, which, in our view, is just and reasonable compensation in this case. 13. In the result, the claimant is found entitled to an additional compensation of Rs.3,01,000/-. The Tribunal awarded interest only @ 6% per annum, which appears to be very low. The claimants are entitled to interest @ 7.5% per annum from the date of petition till realization for the compensation already awarded and also for the enhanced MACA 584/2004 8 compensation. They are also entitled to proportionate cost. The third respondent being the insurer of the offending bus is directed to 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 as above. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.