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 11TH FEBRUARY 2010 / 22ND MAGHA 1931 MACA.No. 1076 of 2004() ----------------------- OPMV.993/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANTS/PETITIONERS: ------------------------------------- 1. SMT.ANNAMMA LUKOSE, PUTHENPARAMBIL HOUSE, NEEZHOOR P.O. 2. MRS.THANKAMMA PHILIP, KIZHAKKE MAPPILATHUNDATHIL HOUSE, NEENDOOR P.O. 3. P.L.SIMON, PUTHENPARAMBIL HOUSE, NJEEZHOOR P.O. 4. MRS.MERCY CHACKO, VADAKKE CHURAVELIL HOUSE, PERUMTHURUTHU P.O. 5. MRS. LILA ABRAHAM, PRALEL HOUSE, MOOZHIKULANGARA P.O. 6. MRS.GRACY GEORGE @ DAISY, CHUNKATHARAYIL HOUSE, S.H.MOUNT P.O. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW SRI.JOSEPH GEORGE SRI.NIJU MATHEW RESPONDENT(S): RESPONDENTS: --------------------------- 1. A.JOHN, ATUKUZHIYIL VEEDU, AREEKARA P.O., VELIYANNOOR, KOTTAYAM DISTRICT. MACA.NO.1076/04 2. JOSE K.THOMAS, KANDATHIL HOUSE, NEENDOOR P.O., KOTTAYAM DISTRICT. 3. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, THODUPUZHA P.O. 4. PRASAD, S/O. CHELLAPPAN PILLA, PUTHENVEEDU, CHADAYAMANGALAM P.O., KOLLAM DIST. 5. RADHAKRISHNAN, C/O. PRASAD, PUTHENVEEDU, CHADAYAMANGALAM P.O., KOLLAM DIST. 6. THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, KOTTARAKKARA P.O. TO BE REPRESENTED BY ITS MANAGER. 7. P.K.THOMAS @ BABY, NO.43, KAUMUDI SOCIETY PT-II, B/H JALTARANG, JUHAPURA P.O., PIN-380 055, AHMEDABAD. 8. P.L.JAMES, NK/DVR (MT), 99TH BN RAF HQ COG, HAKRIMPEI P.O., SECUNDERABAD, RANGAREDOY DISTRICT, A.P., PIN-500 014. 9. P.L.MATHEWS, QTR.NO.36, DDR, LIG FLATS, HASTHAL, UTTAM NAGAR, NEW DELHI P.O., PIN-110 059. 10. ROY LUKOSE, 295 NORTH SERVICE RD A.D.T., 4 11, MISSISSANGA ONT, L5A IA5, CANADA. 11. CYRIL LUKOSE, 11 THRISHEELA, PARK SOCIETY, JIVRAJ PARK, AHMEDABAD, PIN-380 051. 12. ALEX LUKOSE, SALES OFFICER, AUTOMOTIVE MANUFACTURERS, MIRZAPUR ROAD, AHMEDABAD-380 001. ADV. SRI.K.C.PETER FOR R1 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.A.C.DEVY FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1076 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of February, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P.(MV)No.993/1997 of Motor Accidents Claims Tribunal, Kottayam challenges the award and judgment of the Tribunal awarding compensation of Rs. 3,69,900/- for the loss caused to them on account of the death of deceased Binoy Lukose, under Section 163A of Motor Vehicles Act. 2. The facts in brief are these : The first appellant/first claimant is the mother. Appellants 2 to 6/claimants 2 to 6 and respondents 7 to 12 are the brothers and sisters of deceased Binoy Lukose. At the time of his death, Binoy was employed as a soldier in the Indian Army and was aged 25. On September 4, 1995 while the deceased was travelling in a car bearing Reg.No. KEK 1503 driven by the second respondent and owned by first respondent, it dashed against the back side of a bus bearing MACA.No.1076/04 Page numbers Reg. No.KRU 2838 parked on the side of the road as a result of which the deceased sustained serious injuries and he succumbed to the injuries while undergoing treatment at Medical College Hospital, Thiruvananthapuram. Claimants claimed a compensation of Rs. 4,81,136/-. First respondent as the owner, second respondent as the driver and third respondent Insurer of the car are jointly and severally liable to pay the compensation to the claimants. Respondents 4 to 6 in the O.P. as well as in this appeal are the owner, driver and insurer respectively of the bus involved in the accident. 3. Before the Tribunal, respondents 1 and 2 filed a joint written statement denying the negligence on the part of the second respondent. Third respondent the insurer of the offending car filed a written statement admitting the policy. Respondents 4 and 5, the owner and driver of the bus involved in the accident remained absent, while 6th respondent, the insurer of the bus filed a written statement admitting the policy. 4. On the side of the claimants, Exts.A1 to A12 were marked. No evidence was adduced by the contesting third respondent. On an MACA.No.1076/04 Page numbers appreciation of evidence, the Tribunal awarded a compensation of Rs. 3,69,900/-. Dis-satisfied with the compensation awarded, the claimants have now come up in appeal. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the second respondent, the driver of the offending car, is not challenged in this appeal. It is not disputed that the deceased was travelling in the offending car at the time of the accident and that he died as a result of the injuries sustained in the accident. The Tribunal awarded a compensation of Rs. 3,60,400/- for the loss of dependency, Rs. 5000/- for pain and sufferings, Rs. 2500/- for the loss of estate and Rs. 2000/- for funeral expenses. 6. Heard learned counsel for the appellants and Insurance company. 7. The claimants mainly disputed the quantum of compensation awarded under the head loss of dependency. The Tribunal has taken the monthly income of the deceased as Rs. 2650/- out of which 1/3 was deducted for personal expenses and adopted a MACA.No.1076/04 Page numbers multiplier of 17. The deceased was a soldier in Indian Army and was drawing a salary of Rs. 3244/- as seen from Ext.A11, the certificate issued from the Army, copy of which is produced by the counsel for the appellant for perusal. The basic pay was Rs. 2647 and the allowance comes to Rs.597/-. The Tribunal has observed that in assessing the income of the individual, allowance should not be taken into account. But the deceased was aged only 25 and taking into account his future prospects , we feel that his monthly income can be assessed as Rs. 3244/- per month as shown in Ext.A11. After deducting 1/3 for his personal expenses, the balance amount of Rs. 2162/- can be taken as monthly contribution to his dependents/claimants. Regarding the multiplier adopted by the Tribunal, there is no challenge by the Insurance company. Thus calculated for the loss of dependency, claimants are entitled to Rs. 4,41,048/-. Thus on this count, the claimants are entitled to an additional compensation of Rs. 80,648/-. 8. Counsel for the appellants argued that the Tribunal has awarded only Rs. 50000/- for pain and sufferings, Rs. 2500/- for loss to MACA.No.1076/04 Page numbers the estate and Rs. 2000/- for funeral expenses which is very low. While fixing the multiplier, we have taken into consideration the above aspect also. Therefore no enhanced compensation is awarded under the above heads. In the result, the claimants are found entitled to an additional compensation of Rs. 80,648/-. They are entitled to interest @ 9% per annum from the date of petition till realisation. The third 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. Claimants are also entitled to proportionate costs. The award of the Tribunal is modified as found above. The Appeal is disposed of as above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1076/04 Page numbers