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 9TH MARCH 2010 / 18TH PHALGUNA 1931 MACA.No. 156 of 2006() ---------------------- OPMV.810/1995 of IST ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE .................... APPELLANT(S): PETITIONERS:- ------------------------------------ 1. P.K.RAHIMA, AGED 26 YEARS, W/O.LATE KARIM @ ABDUL KARIM, ELAMBILATTU HOUSE, PUTHIYANGADI, CALICUT-21. 2. P.K.MUHAMMED ALI AKBAR, S/O.LATE KARIM @ ABDUL KARIM, ELAMBILATTU HOUSE, PUTHIYANGADI, CALICUT-21. 3. P.K.MUHAMMED ABULKLA, AGED 2/2 YEARS, S/O.LATE KARIM @ ABDUL KARIM, ELAMBILATTU HOUSE, PUTHIYANGADI, CALICUT-21. 4. E.KUNJEEBI, W/O.E.MOIDEEN KOYA, ELAMBILATTU HOUSE, PUTHIYANGADI, CALICUT-21. 5. MUHAMMED YOOSAF ALI, LATE KARIM @ ABDUL KARIM, ELAMBILATTU HOUSE, PUTHIYANGADI, CALICUT-21. (APPELLANTS 2 , 3 & 5 ARE MINORS AND ARE REPRESENTED BY THEIR MOTHER THE 1ST APPELLANT) BY ADV. SRI.JACOB ABRAHAM RESPONDENT(S): RESPONDENTS 1 & 3 -------------------------------- 1. P.M.GOPALAN, S/O.CHOYI, PUTHUMANNIL HOUSE, P.O.KAKKODI, KOZHIKODE DISTRICT. 2. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO LTD., 2ND FLOOR, V.K.BUILDINGS, CHEROOTTY ROAD, KOZHIKODE. ADV. SRI.RENIL ANTO KANDAMKULATHY FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No. 156 of 2006 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 9th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimants in O.P.(MV) No.810 of 1995 of the Motor Accidents Claims Tribunal, Kozhikode challenge the quantum of compensation awarded by the Tribunal for the loss caused to them, on account of the death of Karim @ Abdul Karim in a motor accident. 2. The facts leading to this appeal in brief are these:- Deceased Karim @ Abdul Karim, who was aged 32 at the time of the accident, was employed in Abu Dhabi as a Salesman, earning Rs.18,000/- per month. Claimants are his wife, children and other legal heirs. On December 6, 1994 at about 11. 30 a.m. while the deceased was pillion riding on a motor cycle bearing registration No.1356, a lorry bearing registration No. KLZ 1356, driven by the second respondent came at a high speed and knocked him down. He sustained serious injuries and he succumbed to the injuries sustained on that day itself while MACA 156/2006 2 undergoing treatment at Medical College Hospital, Kozhikode. First claimant is his wife; claimants 2 and 3 are his minor children. At the time of the accident, the first claimant was carrying. Supplemental sixth claimant is born thereafter. Claimants 4 and 5 are the father and mother of the deceased. The fifth claimant, father of the deceased, died during the pendency of the application. Supplemental claimants 7 & 8 are his legal heirs. According to the claimants, the incident occurred due to the negligence on the part of the driver of the offending vehicle. The first respondent as the owner and second respondent as the insurer of the vehicle are jointly and severely liable to pay the compensation to the claimants. The claimants claimed compensation of Rs.8 lakhs. 3. Respondents 1 and 2 remained absent and were set ex parte by the Tribunal. The second respondent insurer of the offending vehicle filed a written statement, admitting the policy and further contending that the incident occurred due to the negligence of the rider of the motor cycle. MACA 156/2006 3 4. Exts. A1 to A6 were marked on the side of the claimants. No evidence was adduced by contesting second respondent. The Tribunal, on an appreciation of the evidence, awarded a compensation of Rs.4,21,000/- with interest at the rate of 9% p.a. from the date of petition till realization and costs. The claimants have come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel appearing for the appellants and the learned counsel appearing for second respondent Insurance Company. 6. The Tribunal awarded a total compensation of Rs.4,21,000/-. The break up of the compensation awarded is as under:- Loss of dependency : Rs.4,08,000/- Transport to hospital : Rs.500/- Pain and suffering : Rs.5,000/- Loss of consortium : Rs.5,000/- Loss of estate : Rs.2,500/- ------------------ Rs.4,21,000/- ======== MACA 156/2006 4 7. The learned counsel for the appellants have mainly disputed the quantum of compensation awarded by the Tribunal for the loss of dependency. It is contended that as Ext.A1 salary certificate shows that the deceased was employed as a Salesman in a textile shop at Abu Dhabi and was earning a salary of 2150 dollars per month and the Tribunal went wrong in taking his monthly income as Rs.2,000/- per month. There is force in the above contention. The Tribunal took the monthly income of the deceased as Rs.2,000/- after deducting 1/3 for his personal expenses and took a multiplier of 17 and awarded a compensation of Rs.4,08,000/- for loss of dependency. Ext.A5 certificate issued from a textile shop at Abu Dhabi would show that on August 20, 1994 he was earning an income of 2150 dollars per month. Ext.A6 passport shows that immediately prior to the death he was working abroad. 2150 dollar is approximately Rs.18,000/-. Therefore, in our view, his monthly income can be reasonably fixed at Rs.6,000/-. After deducting 1/3rd for his personal expenses, the balance MACA 156/2006 5 Rs.4,000/- will be taken as his monthly contribution to his family. He was aged 32 at the time of the accident. The Tribunal took multiplier as 17, which is not seriously disputed. Thus, the compensation for the loss of dependency would come to Rs.8,16,000/- (Rs.4,000/- x 12 x 17). The claimants are entitled for the same. 8. There is another aspect. The total compensation including enhanced compensation comes to Rs.8,29,000/-. The claimant has claimed a compensation of only Rs.8 lakhs. Therefore, total compensation is restricted to Rs.8 lakhs. Further the compensation awarded under other heads appears to be reasonable and therefore, we are not disturbing the same. 9. In the result, the claimants 1 to 4 are entitled to additional compensation of Rs.3,79,000/- with interest at 9% p.a. from the date of petition till realization with proportionate costs. The order of the Tribunal is modified as found above. The third respondent Insurance Company shall MACA 156/2006 6 deposit the amount within two months from the date of receipt of a copy of this judgment. In the result, the appeal is disposed of as above. Sd/- A.K.BASHEER, JUDGE. Sd/- P.Q.BARKATH ALI, JUDGE. mn. /true copy/ P.S. to Judge.