IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 39 of 2008()
1. FAMY JOHNSON, W/O. LATE JOHNSON,
... Petitioner
2. JOFFERY (MINOR), S/O. LATE JOHNSON.
3. JOSHI (MINOR), S/O. LATE JOHNSON.
Vs
1. MRS. JEEJA PRAKASAN, W/O. PRAKASAN,
... Respondent
2. SHAJI, S/O. ARAVINDAKSHAN,
3. THE UNITED INDIA INSURANCE COMPANY LTD.,
4. IYYUNNI,
5. LILLY, W/O. IYYUNNI.
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.SIBY MATHEW
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :21/05/2010
O R D E R
A.K. BASHEER & P.Q. BARKATH ALI, JJ.
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M.A.C.A. 39 of 2008
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Dated: MAY 21, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under sec.173 of the Motor Vehicles Act the claimant
in OP(MV) 1670/2002 on the file of the Motor Accidents Claims
Tribunal, Thrissur, challenges the judgment and award of the
Tribunal dated March 23, 2006 awarding a compensation of
Rs.3,27,000/- for the loss caused to the claimants on account of the
death of deceased Johnson in a motor accident.
2. The facts leading to this appeal in brief are these: Deceased
Johnson was a businessman earning Rs.6000/- per month, according
to the claimants, and was aged 42 at the time of the accident. On
February 26, 2002 at about 7.30 p.m. deceased Johnson was pillion
riding on the motorcycle bearing registration No.KLH 3700 along
Thrissur – Wadakkancherry public road and when he reached at
Pudukkad it collided head on with the bus KL8/9570 driven by the 2nd
respondent. The claimant sustained serious injuries and he
succumbed to the injuries while undergoing treatment in the hospital.
The bus also dashed against an autorickshaw in the incident in which
the driver of the autorickshaw and the passenger were injured. The
claimants are the wife and two minor children of deceased Johnson.
M.A.C.A. 39 of 2008
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According to the claimants the accident occurred due to the rash and
negligent driving of the offending bus by the 2nd respondent. The
1st respondent as the owner, the 2nd respondent as the driver and the
3rd respondent as the insurer of the offending bus are jointly and
severally liable to pay compensation to the claimants.
3. This O.P. was jointly tried along with other two O.Ps. filed by
the driver of the autorickshaw and the passenger of the autorickshaw
involved in the accident and a common award was passed.
4. Respondents Nos. 1 and 2 remained absent and they were
set ex parte by the Tribunal. The 3rd respondent, insurer of the
offending bus filed a written statement admitting the policy and further
contending that there was negligence on the part of the driver of the
autorickshaw and the rider of the motorcycle.
5. Exts.A1 to A18 were marked on the side of the claimants
before the Tribunal. No evidence was adduced by the contesting
3rd respondent. On an appreciation of evidence the Tribunal awarded
a compensation of Rs.3,27,000/- with interest at 7% per annum from
the date of petition till realisation and proportionate costs. The
claimants have now come up in appeal challenging the quantum of
compensation awarded by the Tribunal.
6. Heard the counsel for the appellants/claimants and the
M.A.C.A. 39 of 2008
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counsel for the Insurance Company.
7. The accident is not disputed. The finding of the Tribunal that
the accident occurred due to the negligence on the part of the 2nd
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.
8. The Tribunal awarded a total compensation of Rs.3,27,000/-.
The break up of the compensation awarded is as under:-
Expense for transportation - Rs.1,000/-
Damages to clothing - 1,000/-
Expense for funeral - 5,000/-
pain and suffering - 10,000/-
loss of love and affection - 20,000/-
loss of consortium - 25,000/-
loss of estate - 25,000/-
loss of dependency - 2,24,000/-
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Total - 3,27,000/-
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9. The Counsel for the appellants/claimants sought
enhancement of the compensation for the loss of dependency. The
Tribunal took the monthly income of the deceased as Rs.2000/-,
adopted a multiplier of 15 and after deducting one-third for his
M.A.C.A. 39 of 2008
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personal expenses, awarded Rs.2,24,000/- for the loss of
dependency. Taking into consideration the contention of the
claimants that the deceased was a businessman aged 42, we feel that
his monthly income can be reasonably fixed at Rs.3000/-. After
deducting one-third for his personal expenses, the balance amount of
Rs.2000/- can be taken as his monthly contribution to his family. The
multiplier adopted by the Tribunal as 15 is not seriously challenged.
Thus calculated, for the loss of dependency the claimants are entitled
to a compensation of Rs.3,60,000/-. Thus on this count the claimants
are entitled to an additional compensation of Rs.1,36,000/-. As
regards the compensation awarded under other heads, we find the
same to be reasonable and therefore we are not disturbing the same.
10. There is another aspect. The Tribunal awarded interest
only at the rate of 7% per annum which appears to be very low. The
claimants will be entitled to interest at the rate of 7.5% per annum.
11. In the result, the claimants are entitled to an additional
compensation of Rs.1,36,000/-. They are entitled to interest @ 7.5%
per annum from the date of petition till realisation for the
compensation already awarded as well as for the enhanced
compensation. The 3rd respondent being the insurer of the offending
vehicle shall deposit the amount before the Tribunal within two months
M.A.C.A. 39 of 2008
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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
mt/-