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 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 MACA.No. 92 of 2005() --------------------- OPMV.173/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): PETITIONERS ------------------------ 1. DEVASSIKUTTY, S/O.ANTHONY, MOOTHEDAN HOUSE, PARIYARAM P.O., MUKUNDAPURAM TALUK. 2. ELSY, W/O.DEVASSIKUTTY, MOOTHEDAN HOUSE, PARIYARAM P.O., MUKUNDAPURAM TALUK. 3. TOLLY DAVIS, D/O.DEVASSIKUTTY, MOOTHEDAN HOUSE, PARIYARAM P.O., MUKUNDAPURAM TALUK. 4. TOMSY DAVIS, D/O.DEVASSIKUTTY, MOOTHEDAN HOUSE, PARIYARAM P.O., MUKUNDAPURAM TALUK. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS --------------- 1. R.MOHAMED KHALEEMULLA, S/O.LATE HAJI, S.M.RUKUNDEEN NO.248, 11TH CROSS WILSON GARDENS, BANGALORE-560 027. 2. E.R.RAJA, S/O.R.RAJU, KALA ILLAM, VEERAPPACHATHRAM, ERODE-5. 3. MANAGER, ORIENTAL INSURANCE CO.NO.1 & 2, II FLOOR, HOSUR ROAD, OPP. 9TH CROSS, WILSON GARDENS, BANGALORE-560 027. ADV. SRI.A.R.GEORGE FOR R3 SRI.K.M.FIROZ FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/02/2010, ALONG WITH MACA NO. 471 OF 2005 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.92 & 471 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of February, 2010 JUDGMENT Barkath Ali, J. In both these appeals under Section 173 of Motor Vehicles Act, the judgment and award of the Motor Accidents Claims Tribunal, Irinjalakkuda dated October 7, 2004 in O.P.(MV)No.173/1999 is challenged. In M.A.C.No.92/2005, the claimants have challenged the quantum of compensation awarded by the Tribunal for the loss caused to them on account of the death of deceased Tony in a motor accident. In M.A.C.A.No.471/2005, the Insurance Company has challenged the quantum of compensation awarded by the Tribunal. 2. The facts in brief are these : Deceased Tony aged 21 was an Assistant Manager in City Motors, Edappilly earning a monthly income of Rs. 3,300/-. On January 3, 1999 at about 8.p.m., he was riding his motor cycle bearing Reg.No.KER 2379 along Chalakkudy Tramway Lane from east to west. When he reached near Chalakkudy Tramway junction, a tourist vehicle bearing Reg.No.KA-01/B 6000 MACA.No.92/05 Page numbers driven by the second respondent in the O.P. came at a high speed and knocked down the motor cycle, which the deceased was riding. Deceased Tony sustained serious injuries and died on the way to hospital. According to the claimants, the accident occurred due to the rash and negligent driving of the tourist vehicle by the second respondent in the O.P.. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending vehicle are jointly and severally liable to pay compensation to the claimants. 3. Respondents 1 and 2 in the O.P., the owner and driver of the offending tourist vehicle remained absent before the Tribunal. Third respondent, the insurer of the offending vehicle filed a written statement admitting the policy, but contending that there was also negligence on the part of the deceased. Before the Tribunal, PW1 was examined and Exts.A1 to A10 were marked on the side of the claimants. No evidence was adduced by the contesting third respondent, the Insurance Company. 4. The Tribunal on an appreciation of evidence found that the MACA.No.92/05 Page numbers accident occurred due to the negligence on the part of the second respondent and awarded a compensation of Rs. 2,29,000/- with interest @ 6% per annum from the date of petition till realisation and proportionate cost. The claimants as well as Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the second respondent is not challenged in both these appeals. In M.A.C.A.No.92/2005, the appeal filed by the claimants, the only question which arises for consideration is whether the claimants are entitled to any enhanced compensation. In M.A.C.A.No.471/05 the main dispute is whether the Tribunal is justified in adopting a multiplier of 17 in assessing the loss of dependency and also awarding compensation for love and affection and pain and suffering as the O.P. was filed before the Tribunal under Section 163A of Motor Vehicles Act. 6. The claimants have claimed compensation under Section MACA.No.92/05 Page numbers 163 A of Motor Vehicles Act. Therefore, compensation has to be worked out as provided under second schedule to Motor Vehicles Act. Ext.A7, the extract of the third page of SSLC book of the deceased shows the date of birth of the deceased as February 20, 1978. The accident occurred on January 3, 1999. Therefore, he has almost completed the age of 21 at the time of the accident which is not seriously disputed. The claimants have contended that deceased Tony used to earn Rs. 3300/- per month as a coolie worker. The Tribunal took his monthly income as Rs. 1500/- as no document was produced to show his income. But deceased was aged only 21 at the time of accident. So even as a coolie he would have been earning Rs. 100/- per day. Therefore, we feel that the income of the deceased Tony can be reasonably fixed at Rs. 3000/- per month. After deducting 1/3 ie. Rs. 1000/- per month, his contribution to the family can be taken as Rs. 2000/- per month. The Tribunal adopted a multiplier of 17 . The claimants are the parents and sisters of deceased Tony. The appellants are aged 49, 45 respectively while the sisters are aged 19 and 12. Counsel for the Insurance company argued that as the appellants are MACA.No.92/05 Page numbers aged more than 45 and the sisters would get married soon, the multiplier adopted by the Tribunal is much higher. There is force in the above contention. But there is another aspect. Deceased is the only son of claimants 1 and 2. Therefore, during the old age, he would have looked after them. Therefore, a multiplier of 15 would be reasonable in this case. Adopting the said multiplier, for the loss of dependency, claimants are entitled to compensation of Rs. 3,60,000/-. Thus towards loss of dependency, claimants are entitled to an additional compensation of Rs. 1, 56,000/-. 7. The Tribunal awarded Rs. 500/- towards hospital expenses, Rs. 500/- towards transport to hospital, Rs. 2000/- for funeral expenses and Rs. 2500/- towards loss of estate. The compensation awarded under the above heads is not questioned before us. 8. The Tribunal also awarded Rs. 10,000/- towards loss of love and affection, Rs. 10,000/- towards pain and suffering. Counsel for the Insurance Company pointed out that second schedule of Motor Vehicles Act does not provide for awarding such a compensation. On going through the second schedule of the Motor MACA.No.92/05 Page numbers Vehicles Act, we find that no such compensation is provided therein. Therefore, the claimants are not entitled to the above compensation awarded by the Tribunal. In the result, both these appeals are disposed of as found above. The claimants are entitled to an additional compensation of Rs. 1,36,000/- . They are entitled to interest @ 6% per annum from the date of petition till realisation . In the circumstances, appellants in both the cases shall bear their own costs. Insurance Company shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.92/05 Page numbers