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 MARCH 2010 / 2ND CHAITHRA 1932 MACA.No. 127 of 2005() ----------------------------------- OPMV.470/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): /APPLICANTS 1 TO 3: ------------------------- 1. S.USHA, W/O. BALACHANDRAN NAIR, VISAKH, OORUTTUKALA, ATHIYANNOOR, NEYYATTINKARA, THIRUVANANTHAPURAM. 2. B.RAJESH, S/O. BALACHANDRAN NAIR, VISAKH, OORUTTUKALA, ATHIYANNOOR, NEYYATTINKARA, THIRUVANANTHAPURAM. 3. B.JAYESH, S/O. BALACHANDRAN NAIR, VISAKH, OORUTTUKALA, ATHIYANNOOR, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): RESPONDENTS & 4TH APPLICANT: -------------------------- 1. K.SUNIL KUMAR, SARO BHAVAN, MANNOOR, THATHIYOOR, MARAYAMUTTOM P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. 2. THE NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, SREEHARI BUILDINGS, 2ND FLOOR, NEAR BUSTAND JUNCTION, NEYYATTINKARA. 3. UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, NEYYATTINKARA P.O., THIRUVANANTHAPURAM. 4. B.DEVAKI AMMA, W/O. SIVASANKARAPILLAI, M/O. LATE BALACHANDRAN NAIR, VISAKH,OORUTTUKALA, ATHIYANNOOR, NEYYATTINKARA, THIRUVANANTHAPURAM. R2 BY ADVS. SRI.A.C.DEVY R3 BY MR. A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A. No. 127 of 2005 =-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 23rd day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimants 1 to 3 in O.P.(MV) No.470 of 2000 of the Motor Accidents Claims Tribunal, Neyyattinkara challenge the judgment and award of the Tribunal dated April 16, 2004 awarding a compensation of Rs.4,63,400/- for the loss caused to the claimants, on account of the death of one Balachandran Nair in a motor accident. 2. The facts leading to this appeal, in brief, are these:- Deceased Balalchandran Nair was aged 45 at the time of the accident and was employed as a Care Taker in K.S.E.Board, drawing a salary of Rs.13,179/-, according to the claimants. On August 17, 1999 deceased Balachandran Nair was riding his scooter bearing registration No. KL-01- G 4984 along with his relative Sasidharan Nair, as a pillion MACA 127/05 2 rider, from Neyyattinkara Railway Station to Ooruttukala on the Neyyttinkara – Balaramapuram National High Way road. At that time a motor cycle bearing registration No.KL- 01-L 5844, ridden by the first respondent, came at a high speed from the opposite side and dashed against the scooter. Balachandran Nair sustained serious injuries and succumbed to the injuries sustained on August 24, 1999, while undergoing treatment at the hospital. According to the claimants, the accident occurred due to the rash and negligent driving of the offending motor cycle bearing registration No.KL-01-L 5844 by the first respondent. The first respondent as the owner and rider of the offending motor cycle and second respondent as its insurer are jointly and severally liable to pay compensation to the claimants who are the dependents and legal heirs of the deceased. Claimants are the wife, sons and mother of the deceased. The claimants claimed a compensation of Rs.15,60,000/-. The fourth claimant, mother of the deceased, is shown as fourth respondent in this appeal. MACA 127/05 3 3. Respondents 1 and 2 filed separate written statements before the Tribunal, contending that the accident occurred due to negligence and admitting the policy. The third respondent is the insurer of the scooter of the deceased. The relief was claimed against the third respondent. 4. PWs.1 and 2 were examined and Exts. A1 to A5 were marked on the side of the claimants. Copy of the policy was marked as Ext.B1. On an appreciation of the evidence, the Tribunal awarded a compensation of Rs.4,63,400/- with interest at the rate of 9% p.a. from the date of petition till realization. The claimants 1 to 3 have come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the appellants and learned counsel for respondents 2 and 3 Insurance Companies. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence MACA 127/05 4 on the part of the first respondent is not challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimants are entitled to any enhanced compensation? 7. The Tribunal awarded a total compensation of Rs.4,63,400/-. The break up of the compensation awarded is as under:- Loss of dependency : Rs.4,13,400/- Pain and suffering : Rs.10,000/- Loss of consortium : Rs.15,000/- Loss of love and affection : Rs.10,000/- Loss of estate : Rs.10,000/- Transport to hospital : Rs.5,000/- and funeral expenses. ------------------ Rs.4,63,400/- ======== 8. The learned counsel for the appellants/claimants 1 to 3 has mainly sought enhancement of the compensation for loss of dependency. We find force in the above contention. The Tribunal took monthly income of the deceased as Rs.4,166/- per month for the first ten years and Rs.2,000/- per month for the remaining five years, as MACA 127/05 5 the deceased was aged 45 at the time of the accident and would have retired at the age of 55. Ext.A5 salary certificate issued by the Executive Engineer Civil Division, Vydyuthi Bhavan, Thiruvananthapuram shows that the claimant was working in the office of the Executive Engineer, Civil Division as Care Taken drawing a salary of Rs.10,167/-. The Tribunal deducted the recoveries and arrived at net pay as Rs.4,166/- which is not correct. His total salary has to be taken into account for assessing the loss of dependency. Therefore, we feel that his monthly income of the deceased can be reasonably estimated at Rs.10,000/- per month for the first 10 years and for the remaining three years at the rate of Rs.5,000/- per month. After deducting 1/3rd his personal expenses for the first ten years loss of dependency would come to Rs.8,00,000/- and for the remaining three years Rs.1,20,000/-. Thus, for the loss of dependency, the claimants are entitled to Rs.9,20,000/-. Therefore, on this count the claimants are entitled to an additional compensation of Rs.5,06,600/-. Regarding the compensation MACA 127/05 6 awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 9. In the result, the claimants are entitled to an additional compensation of Rs.5,06,600/-. They are entitled to interest at 9% per annum from the date of petition till realization and proportionate cost. The second respondent being the insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of copy of this judgment before the Tribunal. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn