Sunitha w/o Late Prakasan and others v. K.R. Mohanan, P.R. Selvaraj and The National Insurance Company Limited

## 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 8TH FEBRUARY 2011 / 19TH MAGHA 1932 MACA.No. 2149 of 2010() ----------------------OPMV.3148/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... ## APPELLANTS/ PETITIONERS ------------------------- 1. SUNITHA,W/O.LATE PRAKASAN. 2. KRISHNAPRAKASH(MINOR),S/O.LATE PRAKASAN. 3. JISHNUPRAKASH(MINOR),S/O.LATE PRAKASAN. (MINOR APPELLANTS 2 AND 3 ARE REPRESENTED BY THEIR GUARDIAN MOTHER THE IST APPELLANT HEREIN). 4. VELAYUDHAN,S/O.AYYAPPAN,ALL ARE RESIDING AT THATTARAPURAKKAL HOUSE,NEAR ALINGAL TEMPLE, (VIA)CHILANKA BEACH,P.O.VATANAPPILLY, THRISSUR DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.C.A.ANOOP ## RESPONDENTS/RESPONDENTS -------------------------- 1. K.R.MOHANAN,RESIDING AT 2/631,KALLAYIL HOUSE,P.O.KANJANI,THRISSUR-680612. 2. P.R.SELVARAJ,S/O.RAMANKUTTY,RESIDING AT PERATH HOUSE,P.O.KANJANY,MANALUR VILLAGE, THRISSUR-680612. 3. THE NATIONAL INSURANCE COMPANY LIMITED, KOLLANNUR DEVASSY SMARAKA BUILDING, THRISSUR-680 001. ADV. SRI.N.P.SAMUEL FOR R1 & R2 SRI.B.V.BALAKRISHNAN FOR R1 & R2 SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.2149 OF 2010** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of February, 2011 ## **JUDGMENT** ## Barkath Ali, J. Appellants are the claimants in OP(MV)3148/2003 on the file of the Motor Accidents Claims Tribunal, Thrissur. They are the wife, children and father of deceased Prakasan who died in a motor accident. In this appeal they challenge the judgment and award of the Tribunal dated October 23,2008 awarding a compensation of Rs. 3,44,500/- for the loss caused to them on account of the death of deceased in that accident. 2. On August 25, 2003 at about 7.30 p.m., the deceased was travelling in the autorickshaw bearing Reg.No.KL 8/L 817 along Alappad - Kundolikkadavu public road. When he reached at Munayam, the second respondent who was driving the autorickshaw suddenly swerved the vehicle and as a result of which the autorickshaw dashed against a guard stone and a cashew nut tree on the side of the road. The deceased sustained serious injuries and he succumbed to the MACA.No.2149/2010 2 injuries sustained while undergoing treatment in the hospital. Alleging negligence against the driver of the autorickshaw, the claimants filed the O.P. under Sec.166 of the Motor Vehicles Act claiming a compensation of Rs.6,50,000/-. 3. Respondents 1 and 2, the owner and the driver of the offending autorickshaw filed written statements admitting the accident, but denied the liability. The third respondent, the insurer of the offending autorickshaw filed a written statement admitting the policy. 4. This O.P. was jointly tried along with other O.P. filed by the another injured person in the accident who was also travelling in the autorickshaw and a common award was passed by the Tribunal. Exts.A1 to A16 were marked on the side of the claimants before the Tribunal. Exts.B1 to B4 were marked on the side of the contesting third respondent. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the second respondent and awarded a total compensation of Rs.3,44,500/- with interest at the rate of 7% per annum from the date of petition till realisation. The claimants have now come up in appeal challenging MACA.No.2149/2010 3 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 driver of the autorickshaw 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.3,44,500/- The break up of the compensation amount awarded is as under: |Expenses for transportation|- Rs. 1000/-| |---|---| |Damage to clothing|- Rs. 500/-| |Expenses for funeral|- Rs. 5000/-| |Pain and suffering|- Rs. 10,000/-| |Loss of love and affection|- Rs. 10,000/-| |Loss of dependency|- Rs.2,88,000/-| |Loss of estate|- Rs. 10,000/-| |Loss of consortium|- Rs. 20,000/-| 8. Counsel for the claimants sought enhancement of compensation for loss of dependency and on other heads. 9. The Tribunal took the monthly income of the deceased as MACA.No.2149/2010 4 Rs.2,000/- which comes 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 18 and awarded Rs. 2,88,000/- for the loss of dependency. According to the claimants, the deceased was a Panthal worker earning Rs.5,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the deceased can be reasonably fixed at Rs. 3,000/- which comes to Rs. 36,000/- per annum. As there are four dependents, in the light of the principles laid down in **Sarala Varma v. Delhi Transport Corporation and another** ( 2009(6) SCC 121), only ¼ need be deducted for personal expenses. Thus the balance amount of Rs.27,000/- can be taken as his annual contribution to his family. The Tribunal adopted a multiplier of 18 which is not seriously challenged. Thus calculated for the loss of dependency, the claimants are entitled to a compensation of Rs. 4,86,000/- ( 27,000 x 18). Thus on this count, the claimants are entitled to an additional compensation of Rs.1,98,000/-. 10. For loss of love and affection, Rs. 10,000/- was awarded by MACA.No.2149/2010 5 the Tribunal which appears to be quite inadequate. Taking into consideration the age of the widow and the minor children, we feel that a compensation of Rs. 20,000/- would be reasonable on this count. Thus, on this count, the claimants are entitled to an additional compensation of Rs.10,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 11. In the result, the claimants are found entitled to an additional compensation of Rs. 2,08,000/-. They are entitled to interest @ 7% 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.2149/2010 6 MACA.No.2149/2010 7