IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1492 of 2005()
1. HEMALATHA.M.P., W/O.LATE
... Petitioner
2. THARA.R.NAMBOOTHIRI, D/O.LATE RAMAN
3. SREERAJ.R.NAMBOOTHIRI (MINOR) AGED 15,
Vs
1. JISHA JAYAN, W/O.ANILKUMAR,
... Respondent
2. P.A.JACOB, S/O.ABRAHAM, PULICHAMOOTTIL
3. THE MANAGER, ORIENTAL INSURANCE CO.LTD.,
For Petitioner :SRI.N.KRISHNANKUTTY PILLAI
For Respondent :SRI.GEORGE CHERIAN (THIRUVALLA)
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :05/04/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.No.1492 OF 2005
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Dated this the 5th day of April, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles Act, the
claimants in O.P.(MV)No.392/1999 of Motor Accidents Claims
Tribunal, Irinjalakkuda challenge the judgment and award of the
Tribunal dated March 21, 2005 awarding a compensation of
Rs. 2,53,565/- for the loss caused to them on account of the death of
deceased Raman Namboodir in a motor accident.
2. The facts leading to this appeal in brief are these :
Deceased Raman Namboodiri was aged 50 at the time of the
accident and used to earn Rs. 8,000/- per month as an Ottanthullal
artist. On January 1, 1999 at about 10.15 a.m., while he was walking
along the side of Thrissur-Ernakulam National Highway at South
Junction, Chalakkudy, he was knocked down by a lorry bearing
Reg.No.KL-7/E 5308. He sustained severe injuries and he succumbed
to the injuries sustained while undergoing treatment in the hospital on
the same day at 2 p.m. Claimants are the mother, wife and children of
MACA.No.1492/2005 2
deceased Raman Namboodiri. 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.
Claimants claimed a compensation of Rs. 5 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.
4. PWs 1,2 and 3 were examined and Exts.A1 to A12 were
marked on the side of the claimants. On the side of the contesting third
respondent, copy of the Insurance Policy was marked as Ext.B1. 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. 2,53,565/-. The
claimants have now come up in appeal challenging the quantum of
compensation awarded by the Tribunal.
MACA.No.1492/2005 3
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
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.
2,53,565/-. The break up of the compensation amount awarded is as
under :
Loss of dependency -Rs. 2,20,000/-
Funeral expenses -Rs. 2,000/-
Loss of estate -Rs. 2,500/-
Loss of consortium -Rs. 10,000/-
Expenses towards transport to
hospital -Rs. 1,000/-
Loss of love and affection -Rs. 10,000/-
Pain and suffering -Rs. 5,000/-
Medical expenses -Rs. 3,065/-
-------------------
Total -Rs. 2,53,565/-
===========
8. Counsel for the claimants sought enhancement of the
compensation awarded for the loss of dependency on the ground that
MACA.No.1492/2005 4
the Tribunal is not correct in taking the monthly income of the claimant
as Rs.2,500/- and that as an Ottanthullal artist, he used to earn
Rs. 8,000/- per month. There is force in the above contention. The
Tribunal took the monthly income of the deceased as Rs. 2,500/- and
after deducting 1/3 for his personal expenses, adopted a multiplier of
11 and awarded Rs. 2,20,000/- for the loss of dependency. Ext.A10
series shows that he was a professional Ottanthullal artist and has other
connected cultural activities. PW1, the wife of the deceased has also
testified to that effect. Taking into consideration all these aspects, we
feel that the monthly income of the deceased can be reasonably fixed at
Rs. 3,500/- which comes to Rs. 42,000/- per annum. After deducting
1/3 for his personal expenses, his annual contribution to his family
comes to Rs. 28,000/-. The Tribunal adopted a multiplier of 11 which
is not seriously challenged as the deceased was aged 50 at the time of
the accident. Thus calculated for the loss of dependency, the claimants
are entitled to a compensation of Rs. 3,08,000/-. Thus, on this count,
the claimants are entitled to an additional compensation of
Rs. 88,000/-.
MACA.No.1492/2005 5
9. Counsel for the claimants pointed out that for the loss of
consortium, only Rs. 10,000/- was awarded by the Tribunal which is
very low. In the present case, the second claimant/appellant who is the
widow was aged 39 at the time of the accident. Therefore, we feel that
a compensation of Rs. 15,000/- would be reasonable on this count.
Thus, on this count, the claimants are entitled to an additional
compensation of Rs. 5,000/-. Regarding the compensation awarded
under other heads, we find the same to be reasonable and therefore are
not disturbing the same.
10. There is another aspect in this case. The Tribunal awarded
interest only @ 6% per annum which is very low. Claimants are
entitled to interest @ 7.5% per annum for the compensation already
awarded as well as for the enhanced compensation.
11. Thus, the claimants are found entitled to an additional
compensation of Rs. 93,000/-. 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
MACA.No.1492/2005 6
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.
In line 2 of paragraph 11 of the judgment dated 05/04/2010 in
M.A.C.A.No.1492/2005, the rate of interest shown as “9%” is
corrected and substituted as “7.5%” vide order dated 21/07/2010 in
I.A.No.1694/2010 in M.A.C.A.No.1492/2005.
Sd/-
Registrar ( Judicial)
MACA.No.1492/2005 7