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 30TH JUNE 2011 / 9TH ASHADHA 1933 MACA.No. 1727 of 2010 ----------------------- O.P.(MV) No. 168/2009 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR. APPELLANT(S): PETITIONERS:- ------------------------- 1. FATHIMA, 43 YEARS, M/O.LATE HASHIM, PUNCHAPPADAM HOUSE, VELLIYAMKODE P.O., MALAPPURAM DISTRICT. 2. ANEESHA, 21 YEARS, S/O.LATE HASHIM, PUNCHAPPADAM HOUSE, VELLIYAMKODE P.O., MALAPPURAM DISTRICT. 3. FAIROSE JAHAN, 13 YEARS (MINOR) REPRESENTED BY MOTHER AND NEXT FRIEND FATHIMA, S/O.LATE HASHIM, PUNCHAPPADAM HOUSE, VELLIYAMKODE P.O., MALAPPURAM DISTRICT. BY ADV. SRI.M.R.NANDAKUMAR RESPONDENT(S): RESPONDENTS IN OPMV ---------------------------------- 1. BHASKARAN P., PARTNER PIPE FIELD, 35/762, NORTH JANATHA ROAD, PALARIVATTOM, COCHIN, ERNAKULAM DISTRICT (R.C.OWNER) 682025. 2. MADHUSOODANAN M.V., S/O.RAGHAVAN NAIR, MEETHAL VEETTIL HOUSE, P.O.PALATH, KOZHIKODE DISTRICT (DRIVER) PIN-673611. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, PRAMOD BUILDING, CHEROOTTY ROAD, CALICUT-673001. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-4-2011, ALONG WITH M.A.C.A.NO.1729/2010 THE COURT ON 30-6-2011 PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. Nos.1727 & 1729 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 30th day of June, 2011 JUDGMENT Barkath Ali, J. Both these appeals arise out of a common judgment and award of the Motor Accidents Claims Tribunal, Tirur dated February 23, in O.P.(MV) No.168/2009 and 762/2008 respectively. In both these appeals the claimants are the appellants. 2. In O.P.(MV) No.168/2009 the claimants (appellants in M.A.C.A.No.1727/2010) are the mother and two sisters of deceased Hashim and in O.P.(MV) No.762/2008 the claimants (appellants in M.A.C.A. No.1729/2010) are the parents and brother and sister of deceased Shihabudeen. Hashim and Shihabudeen died in a motor accident that occurred on May 30, 2008 at about 11.15 p.m. at Thavalakulam Centre near Ponnani. Deceased Shihabudeen was sitting on a motor cycle bearing registration No.KL-10/Q 7985 near road margin and deceased Hashim was talking to him. At that time they were knocked down by a lorry bearing registration No.KL-07/AZ 6802. They sustained serious injuries and they succumbed to MACA 1727/2010 & Con. case 2 the injuries sustained on the very same day while undergoing treatment in the hospital. Alleging negligence against the second respondent, the driver of the offending lorry, the claimants filed the O.Ps. before the Tribunal under section 166 of the Motor Vehicles Act. The claimants in O.P. (MV) No.168/209 claimed a compensation of Rs.6,73,000/- while the claimants in O.P.(MV) No.762/2008 claimed a compensation of Rs.5,76,000/-. 3. Respondents 1 and 2 in both these Original petitions ie., owner and driver of the offending lorry, remained absent before the Tribunal. The third respondent, the insurer of the offending lorry, filed a written statement admitting the policy of the lorry but contended that deceased Shihabudheen was actually riding the motor cycle at the time of the accident and there was also negligence on his part. The above O.P. as well as another O.P. field by the legal heirs of deceased Noufal who also died in the accident were jointly tried by the Tribunal. Exts.A1 to A25 series were also marked on the side of the claimants. No evidence was adduced on the side of the MACA 1727/2010 & Con. case 3 contesting third respondent. Out of the exhibits, Exts.A11 to A15 relate to claimant in O.P.(MV) No.762/2008 and Exts.A16 to 25 relate to O.P.(MV) No.168/2009. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the second respondent, the driver of the offending lorry and awarded a compensation of Rs.4,03,670/- in O.P.(MV) No.168/2009 and Rs.2,59,600/- in O.P.(MV) No.762/2008 with interest @ 7.5% perannum and proportionate costs. The claimants have come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the claimants and the counsel for the Insurance Company. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to negligence of the second respondent is not challenged in these appeals. Therefore, the only question which arise for consideration is whether the claimants are entitled to any enhanced compensation. MACA 1727/2010 & Con. case 4 6. M.A.C..A No.1727 of 2010:- Appellants in this case are the claimants in O.P.(MV) No.168 of 2009. They are mother and sisters of deceased Hashim. The Tribunal awarded a total compensation of Rs.4,03,670/-. Break up of the compensation awarded is as under:- Transport charges : Rs. 1,000 Medical bills : Rs. 68,766 Bystander's expenses and : Rs. 1,500 extra-nourishment. Pain and suffering : Rs. 10,000 Loss of dependency : Rs.3,02,400 Loss of estate : Rs. 5,000 Funeral expenses : Rs. 5,000 Loss of love and affection : Rs. 10,000 ------------- Total : Rs.4,03,666 Rounded to : Rs.4,03,670 ======== 7. The counsel for the claimants in this case sought enhancement of compensation awarded by the Tribunal for the loss of dependency and on other heads. 8. The Tribunal took the monthly income of the deceased Hashim as Rs.3,600/- and after deducting ½ of his income for his personal expenses, balance amount of Rs. 1,800/- per month was taken as his monthly contribution to MACA 1727/2010 & Con. case 5 his family. The deceased was aged 20 at the time of the accident. But taking into account the fact that his mother was aged 43 and one of his sister was aged 12, the Tribunal adopted multiplier of 14 and awarded a compensation of Rs.3,02,400/- for the loss of dependency. The deceased Hashim was a Mechanic in repairing T.V. and Fridge and used to earn Rs.4,000/- per month, according to the claimants. Ext.A20 is his driving licence and Exts.A21 and 22 are the certificates showing that he has completed one year course in Electrical Engineering and Electrical and Refrigeration Course. Taking into consideration the above aspect, we feel that the monthly income taken by the Tribunal as Rs.3,600/- appears to be reasonable. Multiplier adopted by the Tribunal as 14 appears to be reasonable, taking into consideration the age of the mother and the deceased. 9. The Tribunal deducted ½ for his personal expenses. In the light of the principles laid down in Sarala Varma V. Delhi Transport Corporation (AIR 2009 SC 3104), the amount deducted for personal expenses of the deceased depends MACA 1727/2010 & Con. case 6 upon the facts and circumstances of each case. In the present case the deceased was aged only 20 at the time of the accident. He would have been looking after his mother and sister who are the claimants. That being so, we are of the view only 1\3rd of his income can be deducted for his personal expenses. Therefore, the balance amount of Rs.2400/- can be taken as his monthly contribution to his family, which comes to Rs.28,800/- p.a. Thus calculated the claimants are entitled a compensation of Rs.4,03,200/- (Rs.28,800 x 14) for loss of dependency. Thus, the claimants are entitled to an additional compensation of Rs.1,00,800/- on this count. 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 in this case the claimants/appellants in M.A.C.A.No.1727/2010 are found entitled to an additional compensation of Rs. 1,00,800/- with interest @ 7.5% p.a. from the date of petition till realization and proportionate costs. 11. M.A.C.A. No.1729/2010:- In this case the claimants MACA 1727/2010 & Con. case 7 are the parents, brother and sister of deceased Shihabudheen. According to the claimants, the deceased was a bachelor earning Rs.Rs.4,000/- per month and aged 26 at the time of the accident. The Tribunal awarded a total compensation of Rs.2,59,600/- in this case. Break up of the compensation awarded is as under:- Funeral expenses : Rs. 5,000 Loss of estate : Rs. 5,000 Loss of dependency : Rs.3,49,600 ------------------ Total : Rs.2,59,600 ======== 12. The counsel for the claimants in this case sought enhancement of compensation awarded by the Tribunal for the loss of dependency. 13. The Tribunal took the monthly income of the deceased as Rs.3,200/- and after deducting one half for his personal expenses, balance amount of Rs.1,600/- was taken as his monthly contribution to his family, which comes to Rs.19,200/- per annum. The Tribunal adopted a multiplier of 13, as his mother was aged 45 and father was 50 and MACA 1727/2010 & Con. case 8 awarded a compensation of Rs. 2,49,600/- for the loss of dependency. As there was no evidence to prove the occupation and income of the deceased, we are of the view that the Tribunal is perfectly justified in taking his monthly income as Rs.3,200/-. But the Tribunal deducted ½ of his income towards his personal expenses. The claimants in this case are father and major sister and brother of the deceased. Taking into consideration the age of the parents and the fact that he was residing with his parents, we are of the view that only 1/3rd of his income need be deducted towards his personal expenses. The Tribunal adopted a multiplier of 13, as the father was aged 50 and mother was aged 45 at the time of the accident, which appears to be reasonable. Thus, calculated for the loss of dependency, the claimants are entitled to a compensation of Rs.3,32,000/- (Rs.25,600 x 13). Thus, the claimants are found entitled an additional compensation of Rs.83,200/- on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore,we are not disturbing the MACA 1727/2010 & Con. case 9 same. 14. Thus, the claimants/appellants in M.A.C.A. No.1729 of 2010 are found entitled to additional compensation of Rs.83,200/- with interest @ 7.5% p.a. from the date of petition till realization and proportionate costs. 15. Regarding the apportionment of the compensation amount and disbursement of the same in both these cases, the direction of the Tribunal will stand. The third respondent being the insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimants. In the result, the appeals are disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn MACA 1727/2010 & Con. case 10 MACA 1727/2010 & Con. case 11 A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. Nos.1727 & 1729/2010 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= JUDGMENT