MACA.No.597 OF 2010

## **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 30TH MARCH 2010 / 9TH CHAITHRA 1932** **MACA.No. 597 of 2010()** **---------------------OPMV.738/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ....................** ## **APPELLANT(S): 2ND RESPONDENT;** **-----------------------------** **UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, NAGARCOIL, REPRESENTED BY ITS BRANCH MANAGER.** **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENT(S): CLAIMANTS:** **-------------------------** **1. LALITHA GIREESAN, W/O.GIREESAN, RANDUTHAYYIL HOUSE, PARAVOOR, PUNNAPRA VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT.** **2. GIREESAN K.H., S/O.LATE BHASKARAN, AGED 47 YEARS, -DO-.** ## **3. MANU G., S/O.GIREESAN, AGED 23 YEARS,** **-DO-.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.597 OF 2010** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of March, 2010 ## **JUDGMENT** ## Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the third respondent in O.P.(MV)No.738/2005 of Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated October 6, 2009 awarding a compensation of Rs. 4,69,100/- for the loss caused to the claimants on account of the death of Anoop G in a motor accident. 2. The facts leading to this appeal in brief are these : The deceased was aged 21 at the time of accident and was employed as a technician in Fox Developers and Systems earning Rs. 5,000/- per month, according to the claimants. On October 6, 2004 at about 10.45 a.m. the deceased was pillion riding on the motor cycle bearing Reg.No.KL-7/A8 949 which was ridden by one Arun Kumar, the claimant in O.P.(MV)No.3156/2004. When they reached near Vyttila, a lorry bearing Reg.No.KL-01/7578 came at a high speed from MACA.No.597/2010 2 the opposite side and dashed against the motor cycle of the claimant. Deceased sustained serious injuries. He succumbed to the injuries sustained while undergoing treatment in the hospital. Claimants are parents and brother of the deceased. According to them, the accident occurred due to the rash and negligent driving of the offending lorry by its driver, the second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimants, who are the legal heirs and dependents of the deceased. 3. Respondents 1 and 2, the owner and driver of the offending lorry filed a written statement admitting the accident, but contending that the accident occurred due to the negligence on the part of the rider of the motor cycle. Third respondent, insurer of the motor cycle, filed a written statement admitting the policy. The owner and insurer of the motor cycle were subsequently impleaded as additional respondents 4 and 5. The fourth respondent remained absent and was set ex parte by the Tribunal. The fifth respondent is the same Insurance Company. MACA.No.597/2010 3 4. The rider of the motor cycle filed O.P.(MV)No.3156/2004 before the Tribunal. Both these O.Ps were jointly tried by the Tribunal and a common award was passed. PW1 was examined and Exts.A1 to A14 were marked on the side of the claimants before the Tribunal. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending lorry by second respondent and awarded a compensation of Rs. 4,69,100/-. The Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/Insurance Company. No notice was issued to the respondents/claimants as on going through the judgment and award of the Tribunal, we are satisfied that even without notice to the respondents, this appeal can be disposed of. 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 compensation awarded is excessive ? MACA.No.597/2010 4 7. The Tribunal awarded a total compensation of Rs. 4,69,100/-. The break up of the compensation awarded is as under : Loss of dependency - Rs. 4,16,000/Pain and suffering - Rs. 10,000/Medical expenses -Rs. 27,100/Funeral expenses, transport and other miscellaneous expenses -Rs. 5,000/Loss of estate -Rs. 5,000/Loss of love and affection -Rs. 6,000/-------------Total -Rs. 4,69,100/- 8. Counsel for the appellant/Insurance Company submitted that the Tribunal went wrong in deducting only 1/3 from the income of the deceased towards his personal expenses while assessing the compensation for loss of dependency and that in view of the principles laid down in **Sarala Varma v. Delhi Transport Corporation and another** ( 2009(6) SCC 121) and as the deceased was a bachelor, 50% of the income of the deceased has to be deducted towards personal expenses. We are not able to agree. 9. According to the claimants, deceased used to earn Rs. 5,000/- per month as he was employed as a technician in Fox Developers & Systems. Ext.A9 is the certificate issued from the 5 MACA.No.597/2010 Institute of Information Technology, Alappuzha which is a unit of Canara Bank Centenary Rural Development Trust showing that deceased was a trainee in that institution and completed course on July 7, 2004. Ext.A10 is the salary certificate issued from Fox Developers and System to the effect that deceased was earning a salary of Rs. 5,000/- per month. Taking into consideration all these aspects, the Tribunal fixed the monthly income of the deceased as Rs. 4,000/which is not seriously challenged in this appeal. The Tribunal deducted 1/3 towards his personal expenses which is disputed by the appellant/Insurance Company. But even in Sarala Varma's case (Supra) referring an earlier decision of the Apex Court in **Fakeerappa v. Karnataka Cement Pipe Factory** (2004(2) SCC 473, has observed that what would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application and that it would depend upon circumstances of each case. Therefore, in the present case, the deceased was aged 21 at the time of the accident. The parents i.e. the father and mother of the deceased were aged 42 and 47 respectively at the time of the accident. MACA.No.597/2010 6 That being so, he would have looked after them in their old age. Further, the future prospects of the deceased in his profession has also to be considered. 10. Taking into consideration all these aspects and the circumstances of the case, we feel that the Tribunal is perfectly justified in deducting only 1/3 towards the personal expenses of the deceased and awarding a compensation of Rs. 4,16,000/- for loss of dependency. As regards the multiplier adopted by the Tribunal, the appellant has not challenged the same. As regards the compensation awarded under other heads, we find the same to be just and proper. That being so, we find no merit in the appeal and the same has to be dismissed. In the result, the Appeal is dismissed. No cost. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** sv. MACA.No.597/2010 7