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Kerala High Court
Elsamma Jose vs K.J.Joseph on 16 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1089 of 2004()


1. ELSAMMA JOSE, W/O. JOSEPH JOSE,
                      ...  Petitioner
2. JOICE JOSE, AGED 20,
3. JOBY JOSE, S/O. JOSEPH JOSE,
4. JOSSY JOSE, D/O. JOSEPH JOSE,

                        Vs



1. K.J.JOSEPH,
                       ...       Respondent

2. THE UNITED INDIA INSURANCE CO. LTD.,

3. JOSEPH P.C., S/O. CHACKO,

                For Petitioner  :SRI.P.RAVINDRA BABU

                For Respondent  :SRI.P.JACOB MATHEW

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

 Dated :16/06/2010

 O R D E R
            A.K.BASHEER & P.Q.BARKATH ALI, JJ.
             =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=
                   M.A.C.A.No. 1089 of 2004
             =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=
            Dated this the 16th 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.1601 of 1996 of the

Motor Accidents Claims Tribunal, Kottayam challenge the

judgment and award of the Tribunal dated April 16, 2003

awarding a compensation of Rs. 3,23,000/- for the loss

caused to them, on account of the death of Joseph Jose in a

motor accident.

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

Deceased Joseph Jose was aged 40 at the time of the

accident and was earning Rs.5,000/- per month as a

Contractor. Claimants are his wife and minor children. On

May 12, 1996 at 8.30 p.m. deceased Joseph Jose was

travelling in a jeep bearing KL-5C/5112, driven by the third

respondent. When the jeep reached at Kuzhithura, it dashed

against the back side of a bullock cart. Deceased Joseph

MACA 1089/2004 2

Jose sustained serious injuries and he succumbed to the

injuries sustained while undergoing treatment in the

hospital. According to the claimants, the accident occurred

due to the negligence on the part of the third respondent,

driver of the jeep. The first respondent as the owner, second

respondent as the insurer and third respondent as the

driver of the offending jeep are jointly and severally liable to

pay the compensation to the claimants who are the legal

heirs and dependents of the deceased.

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

offending jeep, remained absent and were set ex parte by

the Tribunal. The second, respondent insurer of the

offending vehicle, filed a written statement, admitting the

policy.

4. PW1 was examined and Exts. A1 to A6 were

marked on the side of the claimants. No evidence was

adduced by contesting second respondent. The Tribunal, on

an appreciation of the evidence, awarded a compensation of

Rs.3,23,000/- with interest at the rate of 9% p.a. from the

MACA 1089/2004 3

date of petition till realization and proportionate 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 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 third respondent, driver of the offending

jeep, is not challenged in this appeal. Therefore, the only

question which arises for consideration is whether the

claimant is entitled to any enhanced compensation ?

7. The Tribunal awarded a total compensation of

Rs.3,23,000/-. Break up of the compensation awarded is as

under:-

      Loss of dependency                 :    Rs.3,00,000/-
      Pain and suffering                 :    Rs.      5,000/-
      Loss of consortium,                :    Rs.     15,000/-.
      Funeral expenses                   :    Rs.       2,000/-
      love and affection.
      Transportation                     :    Rs        1,000/-
                                              ------------------
          Total                          :    Rs.3,23,000/-
                                              ========

MACA 1089/2004               4

8. The learned counsel for the appellants mainly

sought enhancement of compensation awarded by the

Tribunal for the loss of dependency, loss of consortium and

loss of love and affection.

9. The Tribunal took the monthly income of the

deceased as Rs.2,500/- and after deducting 1/3 for his

personal expenses, took Rs.20,000/- as his annual

contribution to his family and adopted a multiplier of 15

and awarded a compensation of Rs.3 lakhs for loss of

dependency. As the claimant was a ‘C’ class Contractor, as

evidenced by Ext.A1,we feel that his monthly income can

reasonably estimated at Rs.3,500/-, which comes to

Rs.42,000/- per annum. In the light of the principles laid

down in Sarala Varma V. Delhi Transport Corporation (AIR

2009 SC 3104), as there are four dependents in this case,

1/4th of the income can be deducted for his personal

expenses. Hence, balance amount of Rs.31,500/- can be

taken as his annual contribution to his family. The

multiplier adopted by the Tribunal as 15 is not seriously

MACA 1089/2004 5

disputed. Thus, the compensation for the loss of

dependency would come to Rs.4,72,500/- (Rs.31,500/- x 15).

Thus, the claimants are entitled an additional compensation

of Rs.1,72,500/- on this count.

10. For loss of consortium and loss love and affection,

the Tribunal awarded a compensation of Rs.15,000/-, which

appears to be very low. Taking into consideration the age of

the widow, we feel that a compensation of Rs.10,000/-

would be reasonable for loss of consortium. Having regard

to the age of the children, we feel that a compensation of

Rs.20,000/-would be reasonable for loss of love and

affection. 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.

11. In the result, the claimants are entitled to

additional compensation of Rs.1,87,500/- with interest at 9%

p.a. from the date of petition till realization with

proportionate costs. The second respondent Insurance

MACA 1089/2004 6

Company shall deposit the amount within two months from

the date of receipt of a copy of this judgment with notice to

the claimants. The award of the Tribunal is modified to the

above extent.

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

A.K.BASHEER, JUDGE.

P.Q.BARKATH ALI, JUDGE.

mn.


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