IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 MACA.No. 747 of 2009() ---------------------- O.P.(M.V.)NO.2676/2001 OF FIRST ADDL.M.A.C.T, KOZHIKODE APPELLANT(S): PETITIONERS/CLAIMANTS ----------------------------------- 1. ABOOBACKER P.P, S/O LATE AHAMMED KUTTY, PUTHUYAPARAMBIL HOUSE, KEERANGADATH PARAMBA, VENGERI AMSOM DESOM, KOZHIKODE-10. 2. ABDULASEES P.P, S/O LATE AHAMMEDKUTTY, PUTHUYAPARAMBIL HOUSE, KEERANGADATH PARAMBA, VENGERI AMSOM DESOM, KOZHIKODE-10. 3. SHAREEFA P.O., D/O LATE AHAMMEDKUTTY, PUTHUYAPARAMBIL HOUSE, KEERANGADATH PARAMBA, VENGERI AMSOM DESOM, KOZHIKODE-10. 4. SALEEM P.O., S/O LATE AHAMMEDKUTTY, PUTHUYAPARAMBIL HOUSE, KEERANGADATH PARAMBA, VENGERI AMSOM DESOM, KOZHIKODE-10. 5. RAHEED P.O., S/O LATE AHAMMEDKUTTY, PUTHUYAPARAMBIL HOUSE, KEERANGADATH PARAMBA, VENGERI AMSOM DESOM, KOZHIKODE-10. 6. SALEENA P.P, D/O LATE AHAMMEDKUTTY, PUTHUYAPARAMBIL HOUSE, KEERANGADATH PARAMBA, VENGERI AMSOM DESOM, KOZHIKODE-10. 7. NIZAR P.P., S/O LATE AHAMMEDKUTTY, PUTHUYAPARAMBIL HOUSE, KEERANGADATH PARAMBA, VENGERI AMSOM DESOM, KOZHIKODE-10. 8. DUMSHEEK P.P, S/O LATE AHAMMEDKUTTY, PUTHUYAPARAMBIL HOUSE, KEERANGADATH PARAMBA, VENGERI AMSOM DESOM, KOZHIKODE-10. BY ADV. SRI.P.P.THAJUDEEN RESPONDENT(S): RESPONDENTS -------------------------- 1. K.M.USMAN RIYALU, ILLATH HOUSE, ERANJIPALAM P.O, CALICUT-6. 2. THE ORIENTAL INSURANCE CO. LTD., KINGSWAY BUILDING, MAVOOR ROAD, CALICUT. 3. KUNHATHAY, AGED 60 YEARS, D/O LATE UMMAYYAKUTTY, CHERUKATTUTHAZAM, HOUSE NO.26/1388, KOMMERI P.O., KOZHIKODE-673007. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * M.A.C.A.No.747 of 2009 ---------------------------------------- Dated this the 1st day of April 2009 J U D G M E N T BASANT,J The claimants before the Tribunal are the appellants before us. They are the wife and adult children of the deceased person aged about 71 years who suffered injuries in a motor accident which took place on 21/8/2001 and succumbed to those injuries on the same day. Before the tribunal, PW1 was examined and Exts.A1 to A7 were marked. The tribunal on an anxious consideration of all the relevant inputs came to the conclusion that the appellants are entitled to a total amount of Rs.1,24,500/- as compensation as per the details shown below: 1. Loss of dependency Rs.1,00,000/- (Rs.2,500/- x 12 x 2/3 x 5) 2. Pain and suffering Rs.10,000/- 3. Loss of consortium Rs.10,000/- 4. Funeral expenses Rs.2,500/- 5. Expenses for transportation Rs.2,000/- Total Rs.1,24,500/- M.A.C.A.No.747/09 2 2. The appellants claim to be aggrieved by the impugned award. Called upon to explain the precise nature of the challenge which the appellants want to mount against the impugned award, the learned counsel for the appellants contends that the multiplicand adopted to arrive at the quantum of compensation for loss of dependency is too inadequate and meager. The deceased was a person aged about 71 years. It was contended that he was employed in a saw mill. Ext.A7 certificate was produced to show that monthly income of the deceased was Rs.7,000/-. PW1 was examined to prove Ext.A7 certificate. The tribunal before which PW1 was examined and Ext.A7 was proved found it not possible to draw inspiration from the oral evidence of PW1. The self-serving evidence of PW1 and Ext.A7 was found by the tribunal to be insufficient to accept the contents of Ext.A7. The tribunal, on the totality of circumstances, drew the presumption of prudence that the notional income of the deceased can be safely reckoned at Rs.2,500/- per mensum. Accordingly, accepting the multiplier correctly as 5 as stipulated under the 2nd schedule, the tribunal worked out the amount and awarded an amount of Rs.1,00,000/- as compensation for loss of dependency. M.A.C.A.No.747/09 3 3. We are not persuaded to agree that the tribunal committed any error in not swallowing the oral evidence of PW1 and Ext.A7. The appellants were called upon to tender evidence about the income of the deceased who was beyond 70 years in age. If they have a case that the deceased was earning an income of Rs.7,000/- per mensum, in the very nature of the assertion, satisfactory evidence must have been placed before the tribunal. We find no fault with the tribunal in not accepting the income as Rs.7,000/- per mensum. The tribunal cannot be found fault with for drawing the presumption of prudence that the income can be reckoned at atleast Rs.2,500/- per mensum. The burden to prove rests on the shoulders of the claimants who assert that the deceased aged 71 years was getting an income exceeding Rs.2,500/- per mensum. They have not discharged the burden. We are not persuaded to agree that the award warrants appellate interference. Challenge is not advanced on any other ground. 4. This M.A.C.A is hence dismissed. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.747/09 4 M.A.C.A.No.747/09 5 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009