Fathima W/o Late Ibrahim and Others v. V.K. Viswanathan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE A.K.BASHEER** **& THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI** **MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932** **MACA.No. 820 of 2004()** **---------------------OPMV.2985/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ....................** ## **APPELLANT(S): PETITIONERS 1 TO 5 AND 7 IN M.V.O.P.** **-------------------------------------** ## **1. FATHIMA W/O LATE IBRAHIM,** **PANIKKARUKANDANTHIL HOUSE, DESOM P.O., PURAYAR.** **2. ASMABI D/O. LATE IBRAHIM, PANIKKARUKANDANTHIL HOUSE, DESOM P.O., PURAYAR.** **3. FOUSIA D/O. LATE IBRAHIM, PANIKKARUKANDANTHIL HOUSE, DESOM P.O., PURAYAR.** **4. SUNEER S/O. LATE IBRAHIM, PANIKKARUKANDANTHIL HOUSE, DESOM P.O., PURAYAR** **5. FASEELA D/O. LATE IBRAHIM, PANIKKARUKANDANTHIL HOUSE, DESOM P.O., PURAYAR.** **6. AISHA, PANIKKARUKANDANTHIL HOUSE, DESOM P.O., PURAYAR.** **BY ADV. SRI.DINESH MATHEW J.MURICKEN** ## **RESPONDENT(S): RESPONDENTS IN M.V.O.P.& 6TH PETITIONER IN O.P.** **--------------------------------------** **1. V.K.VISWANATHAN, VALAPARAMBU HOUSE, KUDAVECHOOR P.O., VAIKOM.** **2. RAJEEV, VETTOOR HOUSE, KUDAVECHOOR P.O., VAIKOM.** ## **MACA.NO.820/04** ## **3. UNITED INDIA INSURANCE CO.LTD.,** **JOSE JUNCTION, ERNAKULAM.** ## **4. MOHAMMED, PARIKKARUKANDANTHIL HOUSE,** **DESOM P.O., PURAYAR.(DIED)** **ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.820 OF 2004** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31[st] day of May, 2010 ## **JUDGMENT** ## Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P.(MV)No.2985/1996 of Motor Accidents Claims Tribunal, Ernakulam challenge the judgment and award of the Tribunal dated October 20, 2003 awarding a compensation of 2,47,000/- for the loss caused to them on account of the death of deceased Ibrahim in a motor accident. 2. The facts leading to this appeal in brief are these : Deceased Ibrahim was aged 44 at the time of the accident and was conducting a tea shop earning Rs.4,000/- per month, according to the claimants. Claimants are his wife, children and parents. On July 21, 1996 at about 11.45 a.m., deceased was walking along the side of National Highway 47 at Desom. At that time he was knocked down by a mini lorry bearing Reg.No.KL-5D-5113 driven by the second respondent. Deceased sustained severe injuries and he succumbed to MACA.No.820/04 2 the injuries sustained on the way to the hospital. According to the claimants, accident occurred due to the rash and negligent driving of the offending mini lorry by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending mini are jointly and severally liable to pay compensation to the claimants, who are the dependents and legal heirs of the deceased. 3. Respondents 1 and 2, the owner and driver of the offending mini lorry did not file any written statement before the Tribunal. The third respondent the insurer of the offending mini lorry filed a written statement admitting the policy, but attributed contributory negligence on the part of the deceased. 4. Pws 1 and 2 were examined and Exts.A1 to A8 were marked on the side of the claimant 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 mini lorry by second respondent and awarded a compensation of Rs. 2,47,000/- with interest MACA.No.820/04 3 @ 9% per annum from the date of petition till realisation and cost. 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 second 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.2,47,000/-. The break up of the compensation awarded is as under : |Loss of dependency|- Rs. 2,16,000/-| |---|---| |Transportation expenses|- Rs. 3,000/-| |Funeral expenses|- Rs. 3,000/-| |Pain and suffering|- Rs. 5,000/-| |Loss of consortium|- Rs. 10,000/-| |Loss of love and affection|- Rs. 10,000/-| 8. Counsel for the claimants sought enhancement of the MACA.No.820/04 4 compensation for the loss of dependency, loss of love and affection and for loss of consortium. 9. The Tribunal took the monthly income of the deceased as Rs.1800/- and after deducting 1/3 for the personal expenses of the deceased, took Rs. 1200/- per month as his contribution to his family and adopted a multiplier of 15 and awarded a compensation of Rs. 2,16,000/- for loss of dependency. PW1, the daughter of the deceased testified that deceased was conducting a tea shop and was earning Rs. 4,000/- per month and that the entire family including the aged parents were completely dependant on the income of the deceased. There is no evidence to show that claimants have any other income of their own. 10. Under these circumstances, we feel that the monthly income of the deceased can be reasonably fixed at Rs.3,000/- per month. The number of dependents in this case is 7. The 7[th] claimant, the father of the deceased was shown as 4[th] respondent in this appeal and he died subsequently. Therefore, at present, claimants 1 to 6 are the dependents of the deceased. In the light of the principles laid down MACA.No.820/04 5 ## in **Sarala Varma v. Delhi Transport Corporation and another** ( 2009(6) SCC 121), only 1/5[th] need be deducted for his personal expenses. That being so, his monthly contribution to his family will come to Rs. 2,400/-. The multiplier of 15 adopted by the Tribunal is not seriously challenged. Thus calculated for the loss of dependency, claimants are entitled to a compensation of Rs. 4,32,000/- ( 2400 x 12 x 15). Thus on this count, claimants are entitled to an additional compensation of Rs. 2,16,000/-. 11. The Tribunal awarded a compensation of Rs. 10,000/- for loss of consortium and Rs. 10,000/- for loss of love and affection. The widow was aged 40 at the time of the accident and the children, claimants 2 to 5 were aged 21, 18, 14 and 11 respectively. Therefore, towards loss of consortium, we feel that a compensation of Rs. 15,000/- and for loss of love and affection, a compensation of Rs. 20,000/would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 12. In the result, the claimants are found entitled to an MACA.No.820/04 6 additional compensation of Rs. 2,31,000/-. They are entitled to interest @ 9% per annum from the date of petition till realisation 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 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** sv. MACA.No.820/04 7