Seethi and others v Hamza and others (MACA No. 318 of 2007; OPMV.772/2003, MACT Tirur)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE A.K.BASHEER** **& THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI** **WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932** **MACA.No. 318 of 2007()** **---------------------OPMV.772/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR** **....................** ## **APPELLANTS/PETITIONERS** **------------------------------------** **1. SEETHI, AGED 58 YEARS, S/O.MAMMUTTY MOLLA, PANANCHERY HOUSE, PANTHARANGADI P.O., THRIKKULAM, MALAPPURAM DISTTRICT.** ## **2. MUTTICHIRAKKAL KHADEEJA,** **AGED 52 YEARS,W/O.SEETHI,** **-DO- -DO-** ## **3. ZUHRABI, AGED 36 YEARS,** **W/O.M.UBAIS, -DO- -DO-** ## **4. ARIFA, AGED 34 YEARS,** **W/O. K.T.ALAVI,KAZHUNGUMTHOTTATHIL HOUSE, OLAKARA P.O., KOOMANNA.** ## **5. ABOOBAKKAR SIDDEQUE,** **31 YEARS, S/O.SEETHI,** - **-DO- -DO-** ## **6. ABIDA, 26 YEARS,** **W/O.MELARAKKAL MUSTHAFA, P.O.TIRURANGADI, CHANTHAPADI, MALAPPURAM DISTRICT.** **7. ZEENATH, 23 YEARS, D/O.SEETHI,-DO- -DO-** **8. UMAIBAN, 21 YEARS, D/O. -DO- -DO-** **9. JAMSHEER ALI, 18 YEARS, S/O -DO- -DO-** ## **BY ADV. SRI.K.P.SUDHEER SMT.PRIYA VIJAYAN** ## **MACA.NO.318/2007** ## **RESPONDENT(S): RESPONDENTS** **--------------------------** **1. HAMZA, AGED 25 YEARS, S/O.ASSANKUTTY, PAREDATH HOUSE, APPADA, OZHUR P.O., MALAPPURAM DISTRICT-DRIVER.** **2. KUNHIMOIDEEN,S/O KOYAKUTTY, PULLUNI HOUSE, MEENADATHUR, THANALUR P.O., MALAPPURAM DISTRICT.- OWNER** **3. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, THAZHEPPALAM, TIRUR, MALAPPURAM DISTRICT - INSURER.** **4. P.ABDUL AZEEZ,S/O.MOHAMMED, PUTHIYA OTTAYIL HOUSE,PUTHARIKKAL, PARAPPANANGADI(PO),MALAPPURAM DISTRICT. OWNER.** **5. NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, MAVOOR ROAD, KOZHIKODE,INSURER.** **ADV. SRI.LAL GEORGE FOR R5 SRI.E.NARAYANAN FOR R4 SRI.A.R.GEORGE FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.318 OF 2007** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of April, 2010 ## **JUDGMENT** ## Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P.(MV)No.772/2003 of Motor Accidents Claims Tribunal, Tirur challenge the judgment and award of the Tribunal dated November 8, 2006 awarding a compensation of Rs. 1,56,000/- for the loss caused to them on account of the death of deceased Mohammed Manzoor in a motor accident. 2. The facts leading to this appeal in brief are these : Deceased Mohammed Manzoor was aged 22 at the time of the accident and he used to earn Rs. 4,000/- per month as a driver. Claimants are the parents, brothers and sisters of the deceased. On February 26, 2003, deceased was pillion riding on the motor cycle bearing Reg.No.KL-1 0M-9449. His friend Mujeeb Rahman was riding the motor cycle. At about 2. p.m. when they reached at Pathirungal in Chemmad-Parappanangadi public road, a bus bearing M.A.C.A.No.318/2007 2 Reg.No.KL-10N-2621 driven by the first respondent came from the opposite side and dashed against the motor cycle of the claimant. Deceased as well as the rider of the motor cycle sustained serious injuries and they succumbed to the injuries sustained while undergoing treatment in the hospital. According to the claimants, accident occurred due to the rash and negligent driving of the offending 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, who are the legal heirs and dependents of the deceased. Claimant claimed a compensation of Rs. 5 lakhs. 3. Respondents 4 and 5 are the owner and insurer of the motor cycle of the deceased. Respondents 1 and 4 remained absent and were set ex-parte by the Tribunal. The second respondent though entered appearance did not file any written statement. The third respondent, the insurer of the offending bus, filed a written statement admitting the policy, but contending that there was also negligence on the part of the rider of the motor cycle. The fifth respondent filed a written statement 3 M.A.C.A.No.318/2007 admitting the policy and further contending that the accident occurred due to the negligence on the part of the first respondent. 4. Pws 1 and 2 were examined and Exts.A1 to A7 were marked on the side of the claimants before the Tribunal. No evidence was adduced on the side of the respondents. 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. 1,56,000/-. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. 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 ? 6. The Tribunal awarded a total compensation of Rs. 1,56,000/-. The break up of the compensation awarded is as follows : |M.A.C.A.No.318/2007|4| |---|---| |Transport to hospital|- Rs. 3,000/-| |Loss of dependency|-Rs. 1,32,000/-| |Pain and suffering|-Rs. 8,000/-| |Loss of love and affection|-Rs. 10,000/-| |Funeral expenses|-Rs. 3,000/-| ||---------------| |Total|-Rs.1,56,000/-| ||===========| 7. Counsel for the claimants sought enhancement of the compensation for the loss of dependency and for the loss of love and affection. The Tribunal took the monthly income of the deceased as Rs. 3,000/- and after deducting 2/3 for his personal expenses took only Rs. 1,000/- per month as his contribution to his family and adopted a multiplier of 11 and awarded Rs. 1,32,000/- for the loss of dependency. The deceased was a driver by profession which is proved by Ext.A4, the copy of the driving licence. Therefore, we feel that the monthly income of the deceased can be reasonably fixed at Rs. 4,000/-. The deceased was admittedly a bachelor. Further, claimants 3 to 5 are the married sisters of the deceased and therefore they are not the dependents of the deceased. Claimants 4 to 9 are unmarried sisters and brothers of the deceased. Taking into consideration all these aspects and in the light of the principles laid down by the Apex Court in **Sarala** M.A.C.A.No.318/2007 5 ## **Varma v. Delhi Transport Corporation and another** ( 2009(6) SCC 121), we feel that half of his monthly income can be deducted for his personal expenses and his monthly contribution to his family can be taken as Rs.2,000/- per month. The Tribunal is not justified in deducting 2/3 for his personal expenses. The multiplier adopted by the Tribunal as 11 is not seriously challenged. Thus calculated for the loss of dependency, claimants are entitled to Rs. 2,64,000/-. Thus, on this count, claimants are entitled to an additional compensation of Rs. 1,32,000/-. 8. For the loss of love and affection, the Tribunal awarded a compensation of Rs. 10,000/- which appears to be very low. Taking into consideration the fact that deceased was aged only 22 at the time of the accident and that claimants 6 to 9 are unmarried brothers and sisters of the deceased, we feel that a compensation of Rs. 25,000/would be reasonable on this count. Thus, on this count, the claimants are entitled to an additional compensation of Rs. 15,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. M.A.C.A.No.318/2007 6 9. In the result, the claimants are entitled to an additional compensation of Rs. 1,47,000/-. 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 enhanced compensation shall be disbursed to claimants 1 and 2. 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. M.A.C.A.No.318/2007 7