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 24TH JUNE 2010 / 3RD ASHADHA 1932 MACA.No. 1582 of 2004() ----------------------- OPMV.309/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): CLAIMANT/PETITIONER NO.1: ------------------------------------------------- FATHIMA, AGED 59 YEARS, W/O.KUNJI, PUTHIYAVEETTIL HOUSE, P.O.CHALINGAD, KAIPAMANGALAM, THRISSUR DISTRICT. BY ADV. SRI.S.RAJEEV RESPONDENT(S): RESPONDENTS & PETITIONER 2 TO 8: --------------------------------- 1. SARALA DEVI, SURABHI, LOKAMALESWARAM, KODUNGALLUR, THRISSUR DISTRICT. 2. PETER, S/O.OUSEPH, CHIRAYATH HOUSE, ATTARA DESOM, MOOKKANNUR P.O. ALUVA TALUK. 3. THE MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, KOZHIKODE BRANCH. 4. AYSHABI IBRAHIM, D/O.KUNJI MARAKKAR, PUTHIYAVEETTIL HOUSE, P.O.CHALINGAD, KAIPAMANGALAM, THRISSUR DISTRICT. 5. SAKEENA S.HAMEED, D/O.KUNJI MARAKKAR, PUTHIYAVEETTIL HOUSE, P.O.CHALINGAD, KAIPAMANGALAM, THRISSUR DISTRICT. 6. SUHARA ABOOBACKER, D/O.KUNJI MARAKKAR, PUTHIYAVEETTIL HOUSE, P.O.CHALINGAD, KAIPAMANGALAM, THRISSUR DISTRICT. 7. RAJUALA NAZEER, D/O.KUNJI MARAKKAR, PUTHIYAVEETTIL HOUSE, P.O.CHALINGAD, KAIPAMANGALAM, THRISSUR DISTRICT. 8. RAHEELA SHAJAHAN, D/O.KUNJI MARAKKAR, PUTHIYAVEETTIL HOUSE, P.O.CHALINGAD, MACA.No. 1582 of 2004 -2- KAIPAMANGALAM, THRISSUR DISTRICT. 9. ABOOBACKER, S/O.KUNJIMARAKKAR AND ELDER BROTHER OF DECEASED NOUSHAD, PUTHIYAVEETTIL HOUSE, P.O.CHALINGAD, KAIPAMANGALAM, THRISSUR DISTRICT. 10. ABDULKHADER, S/O.KUNJI MARAKKAR, PUTHIYAVEETTIL HOUSE AND ELDER BROTHER OF DECEASED NOUSHAD, P.O.CHALINGAD, KAIPAMANGALAM, THRISSUR DISTRICT. ADV. SRI.K.SANDESH RAJA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 1582 of 2004 ------------------------------------------------------ Dated: JUNE 24, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act, the first claimant in OP(MV) 309/1997 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, challenges the judgment and award of the Tribunal, dated, December 30, 2003 awarding a compensation of Rs.2,08,500/- for the loss caused to the claimants on account of the death of Noushad in a motor accident. 2. The facts leading to this appeal in brief are these: The deceased Noushad was aged 26 at the time of the accident and was working as an A/C and Refrigeration Mechanic in Abudhabi earning a salary of Rs.20,000/- per month. On February 26, 1997 at about 7.30 a.m. the deceased was riding his motorcycle bearing registration No.KED 8950 from south to north along NH 17. When he reached near Puthiyakavu junction near Mathilakam, a bus bearing registration No.KL-10/C 644 driven by the 2nd respondent came at a high speed and dashed against the motorcycle of the deceased. The deceased sustained serious injuries and he succumbed to the injuries while undergoing treatment in the Modern Hospital, Kondungallur, on the same day. The claimants are his mother, brothers and sisters. M.A.C.A. 1582 of 2004 2 According to the claimants the accident occurred due to the negligence on the part of the 2nd respondent. The 1st respondent as the owner, the 2nd respondent as the driver and the 3rd respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimants, who are the dependants of the deceased. They claimed a compensation of Rs.5 lakhs. 3. Respondents 1 and 2, the owner and the driver of the offending bus, remained absent and were set ex parte by the Tribunal. The 3rd respondent, insurer of the offending bus, filed a written statement admitting the policy and further contended that the accident occurred due to the negligence of the deceased. 4. Pws.1 and 2 were examined and Exts.A1 to A10 were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting 3rd respondent. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence on the part of the 2nd respondent and awarded a compensation of Rs.2,08,500/- with interest @ 6% per annum from the date of petition till realisation and proportionate cost. The first claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the M.A.C.A. 1582 of 2004 3 counsel for the Insurance Company. 6. 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 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.2,08,500/-. The break up of the compensation awarded is as under:- loss of dependency - Rs.2,04,000/- funeral expenses - 2,000/- pain and sufferings - 2,500/- 8. The Counsel for the appellant/claimant sought enhancement of the compensation awarded for the loss of love and affection and for pain and sufferings. The Tribunal took the monthly income of the deceased as Rs.1500/-. After deducting 1/3rd for his personal expenses,the balance Rs.1000/- was taken as his monthly contribution to his family. The Tribunal adopted a multiplier of 17 as the deceased was aged 28 at the time of the accident and awarded a compensation of Rs.2,04,000/- for the loss of dependency. As the deceased was employed abroad as an A/C. Mechanic as revealed from Ext.A10 salary certificate, we feel that his monthly income can be M.A.C.A. 1582 of 2004 4 reasonably fixed as Rs.4000/- which works out to Rs.48,000/- per annum. After deducting 1/3rd for his personal expenses, the balance amount of Rs.32,000/- can be taken as his annual contribution to his family. As the deceased was aged 26 at the time of the accident, the Tribunal took 17 as the multiplier. The 1st claimant mother was aged 53 at the time of the accident. The other claimants are also major and married. Therefore we feel that a multiplier of 10 would be reasonable in this case. Thus calculated, for the loss of dependency, the claimants are entitled to a compensation of Rs.3,20,000/- (32000 x 10). Thus on this count, the claimants are entitled to an additional compensation of Rs.1,16,000/-. 9. For loss of love and affection, no compensation was awarded by the Tribunal. Taking into consideration the age of the deceased and that of the 1st claimant, we feel that a compensation of Rs.15,000/- would be adequate on this count. 10. For pain and suffering only a compensation of Rs.2500/- was awarded by the Tribunal which appears to be very low. Taking into consideration the nature of the injuries sustained, we feel that a compensation of Rs.5000/- would be reasonable on this count. 11. Thus the claimants are entitled to an additional compensation of Rs.1,33,500/-. They are entitled to interest @ M.A.C.A. 1582 of 2004 5 7.5% per annum from the date of petition till realisation and proportionate cost. The 3rd 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 mt/-