MACA No. 539 of 2004

## **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 28TH JUNE 2010 / 7TH ASHADHA 1932** **MACA.No. 539 of 2004()** **---------------------OPMV.1283/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA ....................** ## **APPELLANT(S): APPELLANT/PETITIONER.** **-----------------------------------** **1. KHADEEJA, W/O.LATE E.IBRAHIMKUNJU, VELLOR HOUSE, KAKKAZHAM P.O. AMBALAPPUZHA, VILLAGE, AMABALAPPUZHA TALUK, ALAPPUZHA DIST.** ## **2. AFSAL.E. S/O.LATE** **E.IBRAHIMKUNJU,VELLOR HOUSE, KAKKAZHAM P.O. AMBALAPPUZHA VILLAGE, AMABALAPPUZHA TALUK, ALAPPUZHA DISTRICT.** ## **3. JUBAIRIYATH.E,** **D/O.LATE IBRAHIMKUNJU, VELLOR, HOUSE, KAKKAZHAM,PO AMBALAPPUZHA VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DIST.** ## **4. MAHSOOR.E.** **S/O.LATE E.IBRAHIMKUNU, VELLOOR HOUSE, KAKKAZHAM P.O. AMBALAPPUZHA VILLAGE AND TALUK, ALAPPUZHA DISTRICT.** ## **5. RAZEENA, D/O.LATE** **E.IBRAHIM KUNJU, VELLOOR HOUSE, KAKKAZHAM P.O. AMBALAPPUZHA VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT.** **6. SAPHIYATH, W/O.MUHAMMED KUNJU, VELLOOR HOUSE, KAKKAZHAM P.O. AMBALAPPUZHA VILLAGE AND TALUK, ALAPPUZHA DISTRICT.** **BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B.** ## **MACA.No.539/04** ## **RESPONDENT(S):** - **---------------** **1. J.NAZAR, KARIPPEVELIYIL HOUSE, PUNNAPRA P.O. ALAPPUZHA DISTRICT.** **2. THE PROPRIETOR, M/S.SHRIMPEX INTERNATIONAL CC XVI-1342, KOCHUPALLY ROAD, KOCHI.** **3. THE UNITED INDIA INSURANCE CO.LTD., ERNAKULAM BRANCH, KOCHI.** **ADV. SRI.S.SANAL KUMAR FOR R1 SMT.BHAVANA VELAYUDHAN FOR R1 SRI.A.R.GEORGE FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.539 OF 2004** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of June, 2010 ## **JUDGMENT** ## Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P.(MV)No.1283/1999 of Motor Accidents Claims Tribunal, Alappuzha challenge the judgment and award of the Tribunal dated August 28,2003 awarding a compensation of Rs. 2,78,000/- for the loss caused to them on account of the death of deceased E.Ebrahim Kunju in a motor accident. 2. The facts leading to this appeal in brief are these : Deceased Ebrahim Kunju was aged 40 at the time of the accident and was drawing a salary of Rs.4,500/- per month as a Supervisor under second respondent. On December 11, 1997 at about 8 p.m., deceased was travelling in a mini lorry bearing Reg.No.KL 7/R 239 from Honavar to Kochi. The lorry was loaded with fish and was driven by the first respondent. When they reached near Applotta junction in Kalangnoor village, the first respondent lost control of the vehicle due to high speed and hit on an electric post on the side of the road and MACA.No.539/04 2 capsized. The deceased sustained serious injuries and he succumbed to the injuries while undergoing treatment in the hospital. Claimants are his wife, four minor children and mother. According to the claimants, accident occurred due to the negligence on the part of the driver of the mini lorry, first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending mini lorry are jointly and severally liable to pay compensation to the claimants, who are the dependants and legal heirs of the deceased. Claimants claimed a compensation of Rs. 10 lakhs. 3. Respondents 1 and 2, the driver and the owner of the offending mini lorry remained absent and were set ex parte by the Tribunal. The third respondent, the insurer of the offending mini lorry filed a written statement admitting the policy. 4. This O.P. was jointly tried along with O.P.(MV) No.1282/1996 filed by the injured person in the accident and a common award was passed. Pws 1 to 4 were examined and Exts.A1 to A12 were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting third respondent. The MACA.No.539/04 3 Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending mini lorry by first respondent and awarded a compensation of Rs. 2,78,000/- with interest @ 6% per per annum from the date of petition till realisation and a cost of Rs.1,000/-. 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.2,78,000/-. The break up of the compensation awarded is as under : Loss of dependency - Rs. 2,40,000/Loss of consortium - Rs. 10,000/Loss of love and affection - Rs. 10,000/Pain and suffering - Rs. 5,000/- MACA.No.539/04 4 Loss of estate - Rs. 5,000/Transportation expenses - Rs. 5,000/Funeral expenses - Rs. 3,000/- 8. Counsel for the claimants sought enhancement of compensation for the loss of dependency. 9. The Tribunal took the monthly income of the deceased as Rs.2,000/- which works out to Rs. 24,000/- per annum. After deducting 1/3 for his personal expenses, the balance amount of Rs. 16,000/- was taken as his annual contribution to his family. The Tribunal adopted a multiplier of 15 and awarded Rs. 2,40,000/- for the loss of dependency. Deceased was working as a Supervisor in the firm of second respondent and was drawing a salary of Rs. 4,500/- as seen from Ext.A19 salary certificate. Taking into consideration the above fact, we feel that the monthly income of the deceased can be reasonably fixed at Rs. 2,500/- which works out to Rs. 30,000/- per annum. In the present case, there are six dependents. Therefore, in the light of the principles laid down in Sarala Varma v. Delhi Transport Corporation and another ( 2009(6) SCC 121), only 1/6 of the income need be deducted for his personal expenses. After deducting 1/6, the balance MACA.No.539/04 5 amount of Rs.25,000/- can be taken as his annual contribution to his family. The multiplier adopted by the Tribunal as 15 is not disputed. Thus calculated for the loss of dependency, the claimants are entitled to Rs. 3,75,000/- ( 25,000 x 15). Thus on this count, the claimants are entitled to an additional compensation of Rs.1,35,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 10. There is another aspect in this case. The Tribunal awarded interest only @ 6% per annum which appears to be very low. The claimants are entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. 11. In the result, the claimants are entitled to an additional compensation of Rs. 1,35,000/-. They are entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. They are also entitled to proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal MACA.No.539/04 6 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.539/04 7