IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 MACA.No. 1037 of 2004() ----------------------- OPMV.2268/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANTS/PETITIONER. ------------------------------------ 1. SIMON JOSEPH, MANNAKULATHIL HOUSE, ATHIRAMPUZHA P.O. KOTTAYAM. 2. AKHIL SIMON (MINOR) REP. BY HIS NEXT FRIEND-FATHER SIMON JOSEPH OF DO. DO. 3. NIKHIL SIMON,(MINOR) REP. BY HIS NEXT FRIEND-FATHER SIMON JOSEPH OF DO. DO. BY ADV. SRI.RAJEEV V.KURUP RESPONDENT(S): RESPONDENT. -------------------------- 1. SEKHARAN NAIR, MUNDACKAL HOUSE, ARUNAPURAM P.O. PALA. 2. DASSAN WARRIER, ANTHIND WARRIAM, ANTHINAD. 3. THE NATIONAL INSURANCE COMPANY LTD., DIVISI0NAL MANAGER, KOTTAYAM. ADV. SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1037 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of July, 2010 JUDGMENT Barkath Ali, J. One Nirmala, a lady, aged 27, died in a motor accident which occurred on October 22, 1998 at about 11.20 a.m. when the bus bearing Reg.No.KRK 7356 in which she was travelling hit on a telephone post on the side of the road and capsized at Ainkomb on the Pala- Thodupuzha road. Appellants/claimants, the husband and the two minor children of the deceased filed the O.P. before the Tribunal under Section 166 of the Motor Vehicles Act claiming a compensation of Rs. 15 lakhs alleging negligence against the second respondent, the driver of the offending bus. 2. Respondents 1 and 2, the owner and the driver of the offending bus remained absent before the Tribunal. The third respondent, the insurer of the offending bus filed a written statement admitting the policy of the offending bus. 3. This O.P. was jointly tried along with other O.Ps. filed by MACA.No.1037/2004 2 the other injured persons and a common award was passed. First claimant was examined as PW1 and another claimant as PW2 and Exts.A1 to A25 were marked on the side of the claimants. No evidence was adduced by the contesting third respondent. On an appreciation of evidence, the Tribunal awarded a compensation of Rs. 2,72,800/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. Claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the appellants/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 the negligence of the second respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation. 6. The break up of the compensation awarded by the Tribunal is as under : Loss of dependency - Rs. 2,44,800/- Loss of love and affection - Rs. 15,000/- MACA.No.1037/2004 3 Pain and suffering - Rs. 10,000/- Funeral expenses - Rs. 2,000/- Transportation - Rs. 1,000/- 7. Counsel for the claimants sought enhancement of compensation for the loss of dependency, for pain and suffering endured and for loss of love and affection. Counsel for the claimants also submitted that only Rs. 30,000/- was ordered to be given to the first claimant/husband by the Tribunal and that atleast 10% of the award amount may be disbursed to the first claimant husband. 8. The Tribunal took the monthly income of the deceased as Rs. 1,700/- and deducted 1/3 for her personal expenses and adopted a multiplier of 18 and awarded Rs. 2,44,800/- for loss of dependency. According to the claimants, deceased was doing tailoring work and conducting poultry farm and earning Rs. 5,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the deceased can be reasonably estimated at Rs. 2,500/- which comes to Rs. 30,000/- per annum. After deducting 1/3 for her personal expenses, the balance amount of Rs. 20,000/- can be taken as her annual contribution to her family. The multiplier adopted by the Tribunal as MACA.No.1037/2004 4 18 is not seriously challenged. Thus calculated for the loss of dependency, the claimants are entitled to a compensation of Rs. 3,60,000/- ( Rs. 20,000 x 18). Thus on this count, the claimants are entitled to an additional compensation of Rs. 1,15,200/-. 9. The Tribunal awarded Rs. 10,000/- for pain and suffering endured by the deceased. Taking into consideration the fact that deceased succumbed to the injury sustained while undergoing treatment in the hospital, we feel that a compensation of Rs. 25,000/- would be reasonable on this count. Thus on this count, the claimants are entitled to an additional compensation of Rs. 15,000/-. 10. For the loss of love and affection, Rs. 15,000/- was awarded by the Tribunal. Taking into consideration the tender age of the children, we feel that a compensation of Rs. 30,000/- would be reasonable on this count. Thus on this count, the claimants are entitled to an additional compensation of Rs. 15,000/-. As regards the compensation awarded under other heads we find the same to be reasonable and therefore are not disturbing the same. 11. In the result, the claimants are found entitled to an MACA.No.1037/2004 5 additional compensation of Rs. 1,45,200/-. They are entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. 12. The Tribunal ordered to disburse only Rs. 30,000/- to the first claimant husband as he has remarried. But in the circumstances of the case, we feel that 10% of the compensation amount awarded shall be disbursed to the first claimant. The balance amount shall be equally shared by the two minor children. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1037/2004 6