High Court Kerala High Court

Francina Lazar vs The Managing Partner on 24 June, 2010

Kerala High Court
Francina Lazar vs The Managing Partner on 24 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 241 of 2006()


1. FRANCINA LAZAR, W/O.C.JOSEPH,
                      ...  Petitioner
2. ANTONY.C.J,
3. MARY THERESIA, D/O.JOSEPH, DO.  DO.
4. C.J.SILCILLY JISA, D/O.JOSEPH, DO.  DO.

                        Vs



1. THE MANAGING PARTNER,
                       ...       Respondent

2. V.G.CHANDRAN, S/O.GOVINDAN,

3. M/S.THE UNITED INDIA INSURANCE CO. LTD.,

                For Petitioner  :SRI.VINOD VALLIKAPPAN

                For Respondent  :SRI.O.D.SIVADAS

The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI

 Dated :24/06/2010

 O R D E R
            A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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                  M.A.C.A.No. 241 of 2006
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           Dated this the 24th day of June, 2010

                        JUDGMENT

Barkath Ali, J.

In this appeal under section 173 of the Motor

Vehicles Act claimants in O.P.(MV) No.2385 of 1997 of the

Addl. Motor Accidents Claims Tribunal, Kozhikode who are

the mother, brother and sisters of deceased Vincent

challenge the judgment and award of the Tribunal dated

October 6, 2005 awarding a compensation of Rs.1,93,000/-

for the loss caused to them, on account of the death of

Vincent in a motor accident.

2. The facts leading to this appeal, in brief, are these:-

Deceased Vincent was aged 26 at the time of the accident

and was employed as a Peon-cum-Helper in St. Joseph’s

Boys’ High School, Kozhikode and was drawing a salary of

Rs.3,200/- per month. On October 12, 1997 at about 6. 15

p.m. deceased Vincent was travelling in a jeep bearing

registration No. KL-11/A-8188 along the byepass road

MACA 241/2006 2

towards Koduvally. When he reached in front of Co-operative

Hospital, Eranhipalam, a bus bearing registration No. KL-13/A-

4919, driven by the second respondent, came from the opposite

side and dashed against the jeep of the deceased. Deceased

Vincent sustained serious injuries and he succumbed to the

injuries while undergoing treatment in Medical College Hospital,

Kozhikode on October 13, 1997. Claimants are his mother,

brother and sisters. According to the claimants, the accident

occurred due to the negligence on the part of the second

respondent, driver of the offending bus. The first respondent as

the owner, second respondent as the driver and third respondent

as the insurer of the offending bus are jointly and severally liable

to pay the compensation to the claimants who are the legal heirs

and dependents of the deceased. The claimants claimed

compensation of Rs.3 lakhs.

3. Respondents 1 and 2, owner and driver of the offending

bus, remained absent before the Tribunal. The third respondent,

insurer of the offending bus, filed a written statement, admitting

the policy and further contended that there was also negligence

MACA 241/2006 3

on the part of the driver of the jeep.

4. Exts. A1 to A7 were marked on the side of the claimants.

No evidence was adduced by contesting third respondent. The

Tribunal, on an appreciation of the evidence, awarded a

compensation of Rs.1,93,000/- with interest at the rate of 6% p.a.

from the date of petition till realization and costs. The claimants

have come up in appeal, challenging the quantum of

compensation awarded by the Tribunal.

5. Heard the learned counsel for the claimants and the

learned counsel for 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, driver of the offending bus, 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.1,93,000/-. Break up of the compensation awarded is as

under:-

MACA 241/2006 4

       Loss of dependency            :    Rs.1,80,000/-
       Funeral expenses              :    Rs.     3,000/-
       Pain and suffering            :    Rs. 5,000/-
       Loss of estate                :    Rs. 5,000/-
                                          ------------------
           Total                     :    Rs.1,93,000/-
                                          ========

8. The learned counsel for the appellants mainly sought

enhancement of compensation awarded by the Tribunal for the

loss of dependency, pain and suffering and loss of love and

affection. He submitted that no compensation was awarded for

loss of love and affection.

9. The Tribunal took the income of the deceased as

Rs.15,000/- per annum and after deducting 1/3 for his personal

expenses, took Rs.10,000/- as his annual contribution to his

family and adopted a multiplier of 18 and awarded a

compensation of Rs.1,80,000/- for loss of dependency. The

deceased was working as a Peon in St. Joseph’s Boys’ High

School, Kozhikode. Therefore, we feel that his monthly income

can reasonably be fixed at Rs.2,500/-, which works out

Rs.30,000/- per annum. After deducting 1/3rd for his personal

expenses, balance amount of Rs.20,000/- per annum can be taken

MACA 241/2006 5

as his contribution to his family. The multiplier adopted by the

Tribunal is 18, which appears to be slightly higher. The deceased

was aged 26 at the time of the accident. The first claimant

mother was aged 47 at that time. Claimants 2 to 4 were aged 27,

21 and 19 respectively at that time. Therefore, we feel that a

multiplier of 15 would be reasonable in this case. Thus

considered the compensation for the loss of dependency would

come to Rs.3,00,000/- (Rs.20,000/- x 15). The claimants are

entitled an additional compensation of Rs.1,20,000/- on this

count.

10. For pain and suffering a compensation of Rs.5,000/-

was awarded by the Tribunal, which appears to be very low.

Taking into consideration the fact that only on the next day the

deceased died, we feel that a compensation of Rs.10,000/- would

be reasonable on this count.

11. No compensation was awarded towards the loss of love

and affection. Taking into consideration the age of the deceased,

we feel that a compensation of Rs.15,000/- would be reasonable

for loss of love and affection. As regards the compensation

MACA 241/2006 6

awarded under other heads, we find the same to be reasonable

and therefore,we are not disturbing the same.

12. In the result, the claimants are entitled to an additional

compensation of Rs.1,40,000/-. The Tribunal awarded interest @

6% per annum, which appears to be very low. The claimants are

entitled to interest at 7.5% per annum for the compensation

already awarded and for the enhanced compensation from the

date of petition till realization. They are also entitled to

proportionate cost. The third respondent Insurance Company

shall deposit the amount within two months from the date of

receipt of a copy of this judgment.

In the result, the appeal is disposed of as above.

A.K.BASHEER, JUDGE.

P.Q.BARKATH ALI, JUDGE.

mn.