IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 971 of 2004()
1. ELSY, W/O.CHATHELY PAULOSE,
... Petitioner
2. BINDU C.P., D/O.LATE CHATHELY PAULOSE,
3. BEENA C.P., D/O.LATE CHATHELY PAULOSE,
Vs
1. MERCY BABY, W/O.BABY, NEYYAN HOUSE,
... Respondent
2. RAVI P.K., S/O.KUTTAPPAN,
3. THE MANAGER,
For Petitioner :SRI.P.V.BABY
For Respondent :SRI.R.KIRAN
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :11/06/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.No.971 OF 2004
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Dated this the 11th day of June, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles Act, the
claimants in O.P.(MV)No.324/1998 of Motor Accidents Claims
Tribunal, Irinjalakkuda challenges the judgment and award of the
Tribunal dated November 28, 2003 awarding a compensation of
Rs. 1,98,900/- for the loss caused to them on account of the death of
deceased Baiju in a motor accident.
2. The facts leading to this appeal in brief are these :
The deceased Baiju was aged 24 at the time of accident and used
to earn Rs. 3,000/- per month by conducting a travel agency by name
M/s. Sangeetha Travels at Vellikulangara. Claimants are the mother
and sisters of the deceased. On November 6, 1997 at about 3.15 p.m,
the deceased was riding his scooter bearing Reg.No. KL-8/J 595 along
National Highway 47. When he reached at Mamangalam near
Palarivattom, a lorry bearing Reg.No.KCF 365 driven by second
respondent came at a high speed and dashed against the scooter of the
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deceased. Deceased sustained serious injuries and he died on the spot.
According to the claimants, accident occurred due to the rash and
negligent driving of the offending lorry by 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
dependents and legal heirs of the deceased. The claimants claimed a
compensation of Rs. 3 lakhs.
3. Respondents 1 and 2, the owner and driver of the offending
lorry remained absent and were set ex-parte by the Tribunal. The third
respondent the insurer of the offending lorry filed a written statement
admitting the policy and further contended that the accident occurred
due to the negligence on the part of the deceased.
4. The claimant was examined as PW1 and Exts.A1 to A12
were marked on the side of the claimants before the Tribunal. No
evidence was adduced by the contesting third respondent. 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. 1,67,700/- with
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interest @ 9% per annum from the date of petition till realisation. The
claimants have now come up in appeal challenging the quantum of
compensation awarded by the Tribunal.
5. Heard the counsel for the appellant/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
second 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.
7. The Tribunal awarded a total compensation of
Rs.1,67,700/- ( mistakenly noted as Rs. 1,98,900/-). The break up of
the compensation awarded is as under :
Loss of dependency - Rs. 1,63,200/-
Funeral expenses - Rs. 2,000/-
Pain and suffering - Rs. 2,500/-
8. Counsel for the claimants sought enhancement of
compensation for the loss of dependency. The Tribunal took the
monthly income of the deceased as Rs. 1,200/- and after deducting 1/3
towards his personal expenses, his contribution to the family was taken
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as Rs. 800/- and adopted a multiplier of 17 as the deceased was aged 25
at the time of the accident and awarded Rs. 1,63,200/- for the loss of
dependency.Counsel for the claimants submitted that as the deceased
was conducting a travel agency and earning more than Rs. 3,000/- per
month, the monthly income of the deceased taken by the Tribunal is
very low.
9. There is force in the above submission. Ext.A9 is the
certificate issued by the President of Mattathur Grama Panchayath
certifying that the deceased Baiju was running Sangeetha Travels in
Mattathur panchayath. Ext.A10 is the certificate of the Manager, Blue
Sky Travels certifying that the deceased was conducting a travel
agency by name M/s. Sangeetha Travels. Ext.A11 series are certain
receipts issued to the deceased by Blue Sky Travels. Taking into
consideration all these aspects, we feel that the monthly income of the
deceased can be reasonably estimated at Rs. 2,500/- which works out to
Rs. 30,000/- per annum. After deducting 1/3 for his personal expenses,
the balance amount of Rs. 20,000/- per annum can be taken as his
contribution to the family. As the deceased was aged 25 at the time of
the accident, the proper multiplier that can be adopted in this case as
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per the Second Schedule to Motor Vehicles Act is 18. Thus calculated
for the loss of dependency, the claimants are entitled to a compensation
of Rs. 3,60,000/- ( 20,000 x 18). Thus on this count, the claimants are
entitled to an additional compensation of Rs. 1,96,800/-. As regards
the compensation awarded under other heads, we find the same to be
reasonable and therefore are not disturbing the same.
10. In the result, the claimants are found entitled to an
additional compensation of Rs. 1,96,800/-. The award of the Tribunal
is corrected as Rs. 1,67,700/-. 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 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.
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