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 17TH JUNE 2010 / 27TH JYAISTHA 1932 MACA.No. 322 OF 2004() ------------------------------- OPMV.708/1996 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANTS/PETITIONERS: -------------------------------------------------------------- 1. ANGUS D., S/O. DEVA RAJ, DHANYA HOUSE, ATHIRAMPUZHA VILLAGE, MANNANAMKARA, AMANCHERI DESOM, P.O. AMALAGIRI, KOTTAYAM DISTRICT. 2. MINOR BENNET LISAM, S/O. ANGUS D., REPRESENTED BY THE FIRST APPELLANT - FATHER. BY ADV. SRI.JIJO PAUL RESPONDENT(S): RESPONDENTS: ----------------------------------------------- 1. RADHAKRISHNAN NAIR, S/O.KRISHNAN NAIR, PADINJARANILAKKAL VEETTIL, NEAR PRAYAR, KIDANGOOR. 2. E.J.JOSE, S/O. JOSEPH, EDAPILLY CHIRAYIL HOUSE, P.O. NEENDOOR, KOTTAYAM. 3. NEW INDIA ASSURANCE COMPANY LTD., BRANCH, ETTUMANOOR. ADV. SRI.N.S.MOHAMMED USMAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. -------------------------------------------------- M.A.C.A No. 322 OF 2004 ---------------------------------- DATED THIS THE 17TH DAY OF JUNE, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in OP(MV)No. 708/96 of Motor Accidents Claims Tribunal, Kottayam challenge the judgment and award of the Tribunal dated April 5, 2003 awarding a compensation of Rs. 4,31,000/- for the loss caused to them on account of the death of deceased Lizy Amma in a motor accident. 2. The facts leading to this appeal in brief are these: Deceased Lizy Amma was a lady doctor aged 24 and used to earn Rs. 7,000/- per month, according to the claimants. Claimants are the husband and minor children of deceased Lizy Amma. On November 25, 1995 at about 4.15 P.M. deceased Lizy Amma was pillion riding on a motor cycle bearing registration No.TN 3120 along the M.C Road, which was driven by her husband, the first respondent. When they reached Neelimangalam, a bus bearing M.A.C.A No. 322 OF 2004 2 registration No. KEK 1888 came at a high speed from the opposite direction and dashed against the motor cycle, in which the first claimant and the deceased were travelling. She sustained serious injuries and she succumbed to the injuries sustained while undergoing treatment at the hospital. According to the claimants, accident occurred due to the rash and negligent driving of the bus by first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimants. Claimants claimed a compensation of Rs. 25,00,000/-. 3. Respondents 1 and 2, the driver and owner of the offending bus remained absent and were set ex-parte by the Tribunal. The third respondent, the insurer of the offending bus filed a written statement admitting the policy and further contended that there was also negligence on the part of the 1st claimant. 4. Exts.A1 to A29 were marked on the side of the claimants M.A.C.A No. 322 OF 2004 3 before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending bus by first respondent and awarded a compensation of Rs. 4,31,000/- with interest @ 9% per annum from the date of petition till realization. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellants/claimants and the 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 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. 4,31,000/-. The break up of the award amount is as under: M.A.C.A No. 322 OF 2004 4 Loss of dependency :Rs. 4,08,000 Loss of love and affection :Rs. 15,000 Pain and suffering :Rs. 5,000 Transport expense :Rs. 1,000 Funeral expenses :Rs. 2,000 ------------ Total :Rs. 4,31,000 ========= 8. Counsel for the claimant sought enhancement of the compensation awarded for loss of dependency as well as for the loss of love and affection and for loss of consortium. The Tribunal took the monthly income of the deceased as Rs.3,000/- and after deducting for her personal expenses, took Rs. 2,000/- per month as her contributions to her family and adopted a multiplier of 17 as she was aged 24 at the time of accident and awarded a compensation of Rs. 4,08,000/- for loss of dependency. The deceased was an alopathic Doctor. Ext.A12 certificate shows that the deceased was drawing monthly salary of Rs. 7,000/-. Further she is expecting appointment in the State medical service. She was aged only 24 at the time of accident. Therefore she had a very bright future. Taking into consideration all these aspects, we feel M.A.C.A No. 322 OF 2004 5 that her monthly income can be reasonably fixed at Rs. 6,000/-. After deducting 1/3 of her personal expenses, an amount of Rs.4,000/- per month can be taken as her monthly contribution to her family. As she was aged 24 at the time of accident, we feel that a multiplier of 16 would be reasonable in this case. Thus calculated for the loss of dependency, the claimants are entitled to a compensation of Rs.7,68,000/- (4000x12x16). Thus on this count, the claimants are entitled to an additional compensation of Rs. 3,60,000/-. 9. The Tribunal awarded a compensation of Rs. 15,000/- for loss of love and affection. The 2nd respondent, the child was aged only 11 months at the time of accident, therefore, we feel that a compensation of Rs. 25,000/- would be reasonable for love and affection. 10. No compensation was awarded by the Tribunal for loss of consortium. Taking into consideration of the age of the deceased and the first petitioner, we feel that a compensation of Rs. M.A.C.A No. 322 OF 2004 6 20,000/- would be reasonable for loss of consortium. As regards compensation awarded under other heads, we find the same to be reasonable. Therefore, we are not disturbing the same. Thus,the claimants are entitled to an additional compensation of Rs. 4,05,000/-. They are entitled to interest @ 9% per annum from the date of petition till realization and proportionate cost. 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 copy of this judgment. The award of the Tribunal is modified to the above extent. The Appeal is disposed of as found above. Sd/- A.K. BASHEER (JUDGE) sd/- P.Q. BARKATH ALI (JUDGE) PKK The figure “Rs.4,05,000/-” occurring in the first M.A.C.A No. 322 OF 2004 7 sentence of last paragraph of the judgment dated 17/06/2010 in M.A.C.A. No. 322/2004 is corrected and substituted as “Rs. 3,90,000/-” as per order dated 3.3.2011 in R.P. No. 61/2011 in M.A.C.A. No. 322/2004. Sd/- Registrar (Judicial)