IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 MACA.No. 2309 of 2009() ----------------------- AGAINST THE ORDER DATED 14/02/2006 IN O.P (MV) 1221 OF 2002 & 985/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/3RD RESPONDENT --------------------------------- NATIONAL INSURANCE COMPANY LIMITED, THIRUVANANTHAPURAM NOW REPRESENTED BY ITS ASSISTANT MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD,KOCHI-35. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENTS/PETITIOENRS --------------------------------- 1. K.SUMATHI,W/O.LATE SOMAN, MYLAMOODU VEEDU, NELLIVILA, BALARAMAPURAM P.O., THIRUVANANTHAPURAM DISTRICT. 2. S.SUDHEER, S/O.LATE SOMAN, -DO- -DO- 3. MRS.SHIBI,D/O.LATE SOMAN, -DO- -DO- 4. MRS.SHEEBA,D/O.LATE SOMAN, -DO- -DO- 5. SANKARAN NADAR, S/O. VELAYUDHAN NADAR, NELLIVILA THEKKARIKU PUTHEN VEEDU, ANTHIYOOR, BALARAMAPURAM P.O., THIRUVANANTHAPURAM DISTRICT. 6. KARNNASHI,W/O.SANKARAN NADAR, -DO- -DO- MACA.No. 2309 of 2009 -2- 7. S.PRABHAVATHI,W/O.LATE SOMAN, PRABHA COTTAGE, CHERUKARI CHANALKARA, PUTHENKADA, THIRUPPURAM P.O.,NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. (RESPONDENTS 1 TO 6 ARE THE PETITIONERS IN OP 1221/02,AND R7 IS THE PETTIONER IN OP 985/2003) ADV. SRI.S.M.PREM FOR R-7 SMT.K.P.SANTHI FOR R7 SRI.P.K.NIJOY FOR R7 SMT.NISHA G.THARAMAL FOR R7 SRI.NAGARAJ NARAYANAN FOR R1 TO 6 SRI.RAJAN VELLOTH FOR R1 TO 6 SRI.SAIJO HASSAN FOR R1 TO 6 SRI.A.S.SABU FOR R1 TO 6 SRI.RAFEEK. V.K. FOR R1 TO 6 SRI.PRATHAP PILLAI FOR R1 TO 6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. ------------------------- M.A.C.A No.2309 of 2009 -------------------------- Dated this the 4th March, 2010 J U D G M E N T Barkath Ali,J. In this appeal under Section 173 of Motor Vehicles, Act, the 3rd respondent, the Insurance Company in O.P. (MV) Nos.1221 of 2002 and 985 of 2003 of Motor Accidents Claims Tribunal, Neyyattinkara challenges the judgment and common award of the Tribunal dated February 14, 2006 awarding a compensation of Rs.10 lakhs to the claimants for the loss caused to them on account of the deceased Soman in a motor accident. 2. The facts leading to this appeal in brief are these: The claimants in O.P ( MV) 1221 of 2002 are the wife, children and parents of the deceased Soman. The claimant in O.P. (MV) 985 /2003 is another wife of the deceased Soman claiming that the 1st petitioner in the O.P No.1221/02 has been divorced by Soman as per the judgment and decree passed by the Family Court, Thiruvananthapuram. The deceased Soman was aged 52 M.A.C.A No.2309 of 2009 -:2:- and was employed as a Telephone Mechanic in the office of the B.S.N.L, Neyyattinkara earning Rs.8,000/- per month as salary. On August 01, 2002 at about 7 p.m. the deceased was riding the motor cycle bearing Reg. No.KL-01-C 2825 along Pazhayakada-Olathanni public road. When he reached near Olathanni RC church, a lorry bearing Reg. No. KEC 7848 driven by the 2nd respondent came at a high speed and dashed against the motor cycle of the deceased. The deceased Soman sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment at Medical College Hospital, Thiruvananthapuram on the next day at 6.45 p.m. According to the claimant, the accident occurred due to rash and negligent driving of the offending lorry by the 2nd respondent. Respondents 1 to 3 are the registered owner, driver cum present owner and the insurer of the offending lorry respectively. Respondents 4 and 5 are the present owner as well as the registered owner of the motor cycle involved in the accident. 3. Respondents 1 and 4 in O.P.(MV) No.1221/2002 M.A.C.A No.2309 of 2009 -:3:- remained absent and were set exparte by the Tribunal. Second respondent, the driver cum present owner of the lorry filed a written statement denying the negligence on his part. Third respondent, the insurer of the offending lorry filed a written statement admitting the policy and further contended that the accident occurred due to negligence on the part of the deceased. Fifth respondent, the registered owner of the motor cycle, filed a written statement contending that the accident occurred due to negligence on the part of the deceased. 4. As both these petitions arose out of the same accident, the Tribunal jointly tried both these petitions and a common award was passed. First claimant in O.P. (MV) No.1221/2002 was examined as PW1 and Exts. A1 to A14 were marked on their side in that O.P. The claimant in O.P. (MV) No.985 of 2003 was examined as PW1 and Exts. A1 to A2 were marked on their side in that O.P. No evidence was adduced by the contesting respondents. 5. On an appreciation of evidence, the Tribunal awarded a compensation of Rs.10 lakhs with interest at the M.A.C.A No.2309 of 2009 -:4:- rate 7.5% per annum from the date of petition till realisation. The Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. The accident is not disputed. The finding of the Tribunal that the accident happened due to the negligence of the second respondent, the driver of the lorry, is not challenged in this appeal. Therefore the only question for consideration is whether the compensation awarded by the Tribunal is excessive. 7. The Tribunal awarded a total compensation of Rs.10 lakhs. The break up of the amount awarded is as under: Loss of dependency : Rs.10,38,180/- Loss of estate : Rs. 15,000/- Loss of love and affection : Rs. 20,000/- Loss of consortium : Rs. 10,000/- Funeral expenses : Rs. 7,000/- Pain and suffering : Rs. 20,000/- M.A.C.A No.2309 of 2009 -:5:- The total compensation awarded by the Tribunal comes to Rs.11,18,180/-. As the claimants claimed only Rs.10 lakhs, the compensation was limited to Rs.10,00,000/-. 8. Sri.Mathews Jacob, the learned Senior Counsel for the appellant/Insurance Company disputed the compensation awarded under the head disability caused. The Tribunal took the monthly income of the deceased as Rs.9,982/- and deducted 1/3 for his personal expenses and found that his monthly contribution to his family would be Rs.6,655/- and adopted a multiplier 13 and assessed total loss of dependency as Rs.10,38,180/-. The Tribunal awarded the total compensation as Rs.11,18,180/-. As the claimants claimed a compensation of Rs.10 lakhs, the Tribunal limited the compensation to Rs.10 lakhs. The learned Senior Counsel for Insurance Company pointed out that as the deceased was aged 52 at the time of accident, the proper multiplier that can be adopted is 11 and that the Tribunal wrongly took the age of the deceased as 47. There is force in the above contention. In the O.P, the age M.A.C.A No.2309 of 2009 -:6:- of the deceased is shown as 52 at the time of accident. PW1 has also testified to that effect. The Tribunal took the age of the deceased as 47, as in the postmortem certificate the age is shown as 47, which appears to be not correct. As the case of the claimants themselves is that the deceased was aged 52, the same can be accepted. Therefore the multiplier that has to be adopted is 11. Thus calculated for the loss of dependency the claimants are entitled to Rs.8,78,460/- (Rs.6,655 X 12 X 11) instead of Rs.10,38,180/- awarded by the Tribunal. Regarding the compensation awarded under the other heads, it appears to be reasonable. 9. Thus the claimants are found entitled to Rs.9,50,400/- instead of Rs.10,00,000/- as compensation on account of the death of Soman, the son of claimants 1 and 2. They are entitled to interest at the rate of 9% per annum from the date of petition till realisation. They are entitled to proportionate cost. The third respondent shall deposit the amount before Tribunal with notice to claimants within 2 months from the date of receipt of copy M.A.C.A No.2309 of 2009 -:7:- of this judgment. The award of the Tribunal is modified to that effect. Appeal is disposed of as above. A.K.BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE ma M.A.C.A No.2309 of 2009 -:8:- A.K.BASHEER,JUDGE M.A.C.A No.2309 of 2009 -:9:- P.Q. BARKATH ALI, JUDGE ma M.A.C.A No.2309 of 2009 -:10:-