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 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 MACA.No. 1437 of 2006() ----------------------- OPMV.285/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANTS/PETITIONERS: ------------------------------------- 1. MARYKUTTY MATHEW, W/O.LATE M.KUNHAPPY, AGED 55 YEARS, RESIDING AT KUTTIYIL PUTHEN VEEDU, PAIPPAD P.O., HARIPAD. 2. BIJI K.MATHEW, S/O.LATE M.KUNHAPPY, AGED 33 YEARS, RESIDING AT KUTTIYIL PUTHEN VEEDU, PAIPPAD P.O., HARIPAD. 3. BINDU MATHEW @ SARAMMA MATHEW, D/O. LATE KUNHAPPY, AGED 26 YEARS, RESIDING AT KUTTIYIL PUTHEN VEEDU, PAIPPAD P.O., HARIPPAD. BY ADV. SMT.SALLY THOMAS CHACKO SRI.P.T.THOMAS PERAKATH RESPONDENT(S): RESPONDENTS: --------------------------- 1. UNION OF INDIA, REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-3. 2. DHARMAPALAN, S/O. KUNHU KUNHU VIJAYA- VILASAM, EDAYARANMULA, ARANMULA, PATHANAMTHITTA. ( DELETED) 3. SASIDHARAN, S/O. SURENDRAN, AJI NIVAS, ASHRAMAM ROAD, KOLLAM. ( DELETED) 4. ABRAHAM PHILIP, S/O. K.PHILIP, PHILIP VILLA, FORT KOCHI. 5. THE ORIENTAL INSURANCE CO., EBENEZER GARDEN 1ST FLOOR, NEAR EDAPPALLY, COCHIN-24. MACA.NO.1437/2006 RESPONDENT NO.3 DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 15-6-10 IN I.A.NO.349/2010 RESPONDENT NO.2 DELETED FROM THE PARTY ARRAYAT THE RISK OF THE PETITIONER VIDE ORDER DATED 24/6/2010 IN I.A.N.1537/2010 ADV. SMT.SARAH SALVY FOR R4 SRI.P.JACOB MATHEW FOR R5 SRI.M.C.CHERIAN,SR.SC.,RAILWAYS FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1437 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of December, 2010 JUDGMENT Barkath Ali, J. Appellants are the claimant in OP(MV)285/1999 on the file of the Motor Accidents Claims Tribunal, Ernakulam. They are the wife, son and daughter of deceased Kunjappy who died in a motor accident. In this appeal they challenge the judgment and award of the Tribunal dated April 26, 2006 awarding a compensation of Rs.85,000/- for the loss caused to them on account of the death of deceased in that accident. 2. The accident happened on November 27, 2003 at 3.45 p.m.. The deceased was travelling in a Tata Sumo van bearing Reg.No.KL- 7/R-8667 along with four other persons along Karuvatta-Sasthamuri road. When they reached at Manghuzhi Ganapathiyamkulangara Railway Level Cross on the Kayamkulam-Alappuzha Coastal Railway line which was unmanned, the Trivandrum-Howrah Express train No.6323 coming from Trivandrum rammed into the van in the unmanned level cross. The van was entangled and was carried away by MACA.No.1437/2006 2 the train for about 600 metres. The deceased sustained serious injuries and she succumbed to the injuries sustained on the spot. Alleging negligence against the driver of the van as well as on the part of the Railways, the claimants filed the OP under Sec.166 of the Motor Vehicles Act claiming a compensation of Rs.2,50,000/-. 3. The first respondent is the Union of India represented by the General Manager, Southern Railways, Chennai. Respondents 2 and 3 are the driver and Assistant Driver of the Engine of the train involved in the accident. The fourth respondent is the owner of the van and fifth respondent is its insurer. 4. All the respondents appeared before the Tribunal and filed written statements. The Railways filed a written statement admitting the accident, but attributed negligence to the driver of the van. The owner of the van filed a written statement admitting the accident, but attributed negligence on the part of the Railways. The insurer of the van filed a written statement admitting the policy of the van 5. This O.P. was tried along with other O.P.s filed by the legal heirs of other deceased persons and a common award was passed. MACA.No.1437/2006 3 Pws 1 to 7 were examined and Exts.A1 to A39 were marked on the side of the claimants before the Tribunal. RW1 and RW2 were examined and Exts.B1 to B4 were marked on the side of the contesting respondents. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the driver of the offending van and awarded a total compensation of Rs.85,000/- with interest at the rate of 7% per annum from the date of petition till realisation and proportionate cost. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. Heard the counsel for the appellants/claimants and the counsel for the Insurance Company. 7. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the driver of the van is not challenged in this appeal. Therefore the only question which arises for consideration is whether the claimants are entitled to any enhanced compensation. 8. The Tribunal awarded a total compensation of Rs.85,000/- MACA.No.1437/2006 4 which appears to be very low. The break up of the compensation amount awarded is as under: Transportation - Rs. 5,000/- Pain and suffering - Rs. 5,000/- Loss of consortium - Rs. 5,000/- Loss of love and affection - Rs.10,000/- Loss of dependency - Rs.60,000/- 9. The counsel for the claimants sought enhancement of the compensation awarded for the loss of dependency and on other heads. 10. The Tribunal took the monthly income of the deceased as Rs.1,500/- and after deducting 1/3 for his personal expenses, the balance amount of Rs. 1,000/- was taken as his monthly contribution to his family. As the deceased was aged 61 at the time of the accident , a multiplier of 5 was adopted by the Tribunal and awarded Rs. 60,000/- for loss of dependency. According to the claimants, deceased used to earn a monthly income of Rs.3,000/- from his properties. The wife of the deceased, PW1 and PW2, the daughter of the deceased testified to that effect. Therefore, we feel that his monthly income can be reasonably fixed at Rs.3,000/- per month, as testified by them. After deducting 1/3 for his personal expenses, the balance amount of MACA.No.1437/2006 5 Rs. 2,000/- can be taken as his monthly contribution to his family, which comes to Rs. 24,000/- per annum. The Tribunal adopted a multiplier of 5 which is not seriously challenged. Thus, calculated for the loss of dependency, the claimants are entitled to a compensation of Rs. 1,20,000/- ( 24,000/- x 5). Thus on this count, the claimants are entitled to an additional compensation of Rs.60,000/-. 11. The Tribunal awarded Rs. 5,000/- for loss of consortium and Rs.10,000/- for loss of love and affection which in our view is quite inadequate. Taking into consideration the age of the deceased and the age of the claimants, we feel that a compensation of Rs. 10,000/- for loss of consortium and Rs. 15,000/- for loss of love and affection would be reasonable. 12. The Tribunal did not award any compensation for loss to the estate. In the circumstances of the case, we feel that a compensation of Rs. 10,000/- would be reasonable 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. 13. In the result, the claimant is found entitled to an additional MACA.No.1437/2006 6 compensation of Rs. 80,000/- with interest @ 7% per annum from the date of petition till realisation and proportionate cost. The fifth 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. 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 sv.