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. 1208 of 2007() ----------------------- OPMV.1715/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANTS/PETITIONERS ------------------------------ 1. P.V.KALYANI AMMA,D/O.LATE RAMUNNI, 75 YEARS,KRISHNAKUMARI SADHANAM, ODUNGODU. POST MAVILAYI. 2. N.PADMAJA,W/O LATE P.V.RAGHOOTHAMAN, D/O.K.NANU, PUTHENPURA HOUSE, MOVERI,PACHAPOYIKA P.O., 3. MITHUN P.V., 11YEARS (MINOR) REP.B MOTHER N.P.PADMAJA,MOWERI,PUCHAPOYIKA.P.O. 4. VARUN P.V. 7 YEARS (MINOR) REP.BY MOTHER N. PADMAJA MOVERI,PACHAPOYIKA P.O. BY ADV. SRI.M.SASINDRAN SRI.M.V.BIPIN RESPONDENTS/ RESPONDENTS: -------------------------- 1. C.PADMANABHAN,S/O.GOVINDAN, SHANTHIPUAM,SHANKARANALLOOR. 2. A. KUNHIKANNAN, S/O.KANNAN NAIR, ANGEVEETIL, VENGAD AMSOM,KELALLOOR. 3. THE NATIONAL INSURANCE CO. LTD., KANNUR. ADV. SRI.CIBI THOMAS FOR R1 SRI.LAL GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & B.Q. BARKATH ALI, JJ. ------------------------- M.A.C.A No.1208 of 2007 -------------------------- Dated this the 23rd February, 2010 J U D G M E N T Barkath Ali,J. Appellants/claimants have filed this appeal under Section 173 of the Motor Vehicles Act for enhancement of the amount of compensation awarded by the Motor Accidents Claims Tribunal, Thalassery in O.P. (MV) No.1715/2001 by award dated April 27, 2006 for the loss caused to them on account of the deceased Raghoothaman in a motor accident. 2. The facts in brief are these: The deceased Raghoothaman was a contractor and a diploma holder in Civil Engineering earning Rs.5000/- per month, according to the claimants. The claimants are the mother, wife and children of the deceased. On October 08, 2000, he was pillion riding on the the motor cycle bearing temporary Reg.No.KL-11//113393/2000D from Kannur to Kuthuparamba. When they reached at Mavilayi, a bus bearing Reg. No.KL13/5670 came from the opposite direction and dashed against the motor cycle of the M.A.C.A No.1208 of 2007 2 deceased. The deceased sustained serious injuries and succumbed to his injuries sustained there itself. According to the claimants, the accident occurred due to the negligence on the part of 2nd respondent, the driver of the offending bus. First respondent as the owner, 2nd respondent as the driver and 3rd respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimants who are the legal heirs and dependents of the deceased. The claimants claimed compensation of Rs.8 lakhs. 3. Respondents 1 and 2, the owner and driver of the offending bus remained absent and were set ex parte by the Tribunal. Third respondent, insurer of the offending vehicle filed a written statement admitting the policy and further contending that there was also negligence on the part of the rider of the motor cycle and that therefore the owner, driver and insurer of the motor cycle are necessary parties to this petition. 4. Second petitioner was examined as PW1. Exts.A1 to A7 were marked on the side of the claimants M.A.C.A No.1208 of 2007 3 before the Tribunal. No evidence was adduced on the side of the contesting 3rd respondent. On an appreciation of evidence, the Tribunal awarded a compensation of Rs.3,21,000/- with interest at 7% per annum from the date of petition till realisation. The claimants have 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 2nd respondent, the driver of the offending bus is not challenged in this appeal. Therefore, the only question which arise for consideration is whether the claimants are entitled to any enhanced compensation. The Tribunal awarded compensation as follows: Loss of dependency (16000x 17)- Rs.2,72,000 Loss of consortium to the 1st petitioner - 15,000 Loss of estate - 5,000 Pain and sufferings - 10,000 Loss of love and affection - 15,000 Transportation expenses - 2,000 Funeral expenses - 2,000 ----------------------- Total 3,21,000 ========= M.A.C.A No.1208 of 2007 4 6. The Tribunal fixed the monthly income of the deceased as Rs.2,000/- and adopted a multiplier of 17, considering the age of the deceased as 41 at the time of the accident. After deducting 1/3rd for his personal expenses Rs.16,000/- was taken as his personal contribution to his family and the Tribunal awarded Rs.2,72,000/- towards the loss of dependency. 7. The counsel for the claimants argued that as the deceased was a diploma holder in Civil Engineering, his monthly income should have been taken as Rs.3000/-. But no document is produced to show that the monthly income of the deceased. But as he was working as a contractor, we feel that his monthly income can be reasonably assessed at Rs.3,000/-. After deducting 1/3rd for his personal expenses, remaining Rs.2,000/- can be taken as his monthly contribution to the family. The multiplier adopted by the Tribunal is not seriously challenged in this appeal. Thus calculated for the loss of dependency, the claimants are entitled to compensation of Rs.4,08,000/-. Thus on this account, the claimants are entitled to additional M.A.C.A No.1208 of 2007 5 compensation of Rs.1,36,000/-. 8. Learned counsel for the claimants also disputed the compensation awarded under the heads loss of consortium and loss of love and affection. The Tribunal awarded Rs.15,000/- for the loss of consortium and Rs.5,000/- for loss of love and affection. PW1, the wife of the deceased was aged only 33 years at the time of the accident. Taking into consideration the above facts, we feel that compensation of Rs.25,000/- would be reasonable for the loss of consortium . Having regard to the tender age of the claimants 3 and 4, we feel that compensation of Rs.15,000/- would be reasonable for the loss of love and affection. The compensation awarded under other heads is not questioned before us. 9. Thus the claimants are entitled to additional compensation of Rs.1,56,000/-. They are entitled to interest at the rate of 9% from the date of petition till realisation. The Tribunal awarded interest at the rate of 7% per annum which appears to be very low. Therefore, for the compensation already awarded also, they are entitled to M.A.C.A No.1208 of 2007 6 interest at 9% per annum. Third respondent, insurer of the offending bus shall deposit the amount within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. The appeal is disposed of, as found above. A.K.BASHEER,JUDGE P.Q. BARKATH ALI, JUDGE ma M.A.C.A No.1208 of 2007 7 M.A.C.A No.1208 of 2007 8