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Judgment
R. Sudhakar, J.—This civil miscellaneous appeal is filed against the award dated 01.09.2004, made in M.A.C.O.P. No. 49 of 1997, on the file of Motor Accident Claims Tribunal, (Sub Court), Padmanabhapuram.
Claimants have filed this appeal seeking proper, just and fair compensation stating that various deductions made by the Tribunal are totally misconceived, erroneous and contrary to law.
It is the case of fatal accident. The accident in this case happened on 24.12.1996 and the deceased Muralidharan Nair, aged 46 years old was a Revenue Inspector. When he was travelling as a pillion rider in a two wheeler, he was hit by an Ambassador car driven by one Raveendran Nair. In that accident, both the passengers in the two wheeler were thrown out and at that time, a lorry bearing registration No. KL 7E 3629 driven by one K.Subburaj, the fourth respondent before the Tribunal, hit the two persons who were lying on the road and as a consequence, the said Muralidharan Nair suffered grievous injuries and died. On his death, his wife aged 43 years, son aged 19 years and daughter aged 16 years filed claim for compensation in a sum of Rs. 7,00,000/-.
In support of the claim, the son of the deceased was examined as P.W.1 and the documents Exs.P-1 to P-5 were marked which are as follows;
Ex.P-1: Death certificate of Muralidharan Nair
Ex.P-2: Legal heir certificate of the claimants
Ex.P-3: Postmortem certificate of Muralidharan Nair
Ex.P-4: S.S.L.C. book of Muralidharan Nair
Ex.P-5: Income Certificate of Muralidharan Nair
On behalf of the respondents before the Tribunal, the driver of the Ambassador car, Raveendran Nair was examined as R.W.1. However, no document was marked on the side of the respondents.
Before the Tribunal, the respondents are arrayed as follows;
State of Kerala, represented by Chief Secretary to Government of Kerala, Secretariate, Thiruvanathapuram, Kerala State.
General Manager, M/s. South India Corporation Limited, Vellington Island, Cochin, Kerala.
Raveendran Nair, the driver of the Ambassador Car
K. Subburaj, the driver of the lorry owned by the second respondent.
The Oriental Insurance Co. Ltd., Divisional Officer, P.L.A. Building 12A, Kovai Road, Karur, represented by Branch Manager, the insurer of the lorry owned by the second respondent
The Director, of Agricultural Department, SC Unit, Thiruvananthapuram, Kerala State.
It is pertinent to point out that the respondents 1, 2, 4 to 6 were set ex parte. The driver of the Ambassador car alone contested the matter. The Tribunal found that the driver of the Ambassador car and the driver of the lorry were equally rash and negligent and are responsible for the accident resulting the death of one Muralidharan Nair.
Insofar as the compensation, the Tribunal came to the conclusion that based on Ex.A5, the income of the deceased was Rs. 6,164/- per month. The Tribunal, however, relying upon the decision of the Hon''ble Apex Court in Asha and Ors. v. United India Insurance Co. Ltd. and Anr. in Civil appeal No. 7897 of 2001, fixed the income at Rs. 5,600/- per month stating that certain deductions have to be made. The Tribunal thereafter adopted 13 multiplier and fixed the total loss of income as follows;
5600 � 12 � 13 = 8,73,600
1/3rd was thereafter deducted towards personal expenses of the deceased from Rs. 8,73,600/- leaving a balance of Rs. 5,82,400/-. The Tribunal did not rest with this. Thereafter, it proceeded to deduct further amount as follows;-1) Rs. 1,00,000/- was deducted stating that the said amount has been given by the State Government as gratis on the death of Muralidharan Nair
2) Rs. 2,00,000/- was deducted stating that the said amount would accrued as gratuity payment.
In the end, the Tribunal awarded Rs. 2,82,400/- towards pecuniary loss. Thereafter, the Tribunal granted Rs. 2,000/- towards funeral expenses and Rs. 5,000/- towards loss of consortium. In all a sum of Rs. 2,89,400/- was granted with 9% interest.
The only contesting respondent before the Tribunal, Sreekumaran Nair, the third respondent herein, has been noticed. However, he has not chosen to appear before this Court. He was represented by a Counsel before the Tribunal. Insofar as the other respondents, notice was dispensed with, as they remained ex parte before the Tribunal.
The contention on behalf of the appellants counsel seeking just compensation by setting aside the erroneous deductions is justified for the following reasons;-The income fixed by the Tribunal at Rs. 5,600/- can be taken as it is since the deduction is only marginal. The 13 multiplier adopted in this case is not challenged by the respondents. Therefore the sum of Rs. 8,73,600/- granted towards pecuniary loss can be accepted. A sum representing 1/3rd of the above amount by way of deduction towards personal expenses is also justified. Therefore, the total sum arrived as pecuniary loss is Rs. 5,82,400/- is proper. This amount should have been granted by the Tribunal without any further deduction. A sum of Rs. 1,00,000/- granted by the Government for the death of the Government Servant in harness cannot be deducted from the compensation payable as it has nothing to do with the claim by the dependants as it is beyond the scope of the Motor Vehicles Act. A sum of Rs. 2,00,000/- is deducted towards gratuity. There is no provision under the Motor Vehicles Act which enables the Tribunal to deduct the amount that accrues to the legal heirs by way of gratuity on the death of the Government Servant and it is governed by a separate law and that entitlement cannot be denied under the provisions of the Motor Vehicles Act. Therefore a sum of Rs. 2,00,000/- deducted towards gratuity is totally unjustified, improper and opposed to law. Hence, the above said amount will enure to be benefit of the claimants.
Further, the claimants also entitled for compensation under the head of loss of love and affection and the third claimant is entitled to higher compensation for loss of consortium on the death of her husband. No amount has been granted for transport expenses by the Tribunal. The claimants are entitled for compensation under those headings also. Considering all these factors, the award stands modified and enhanced as follows;
Sl. No. Heads Amount granted by this Court 1. Loss of Pecuniary benefits Rs. 5,82,400 2. Loss of consortium to the wife Rs. 15,000 3. Loss of love and affection to the two Rs. 20,000/- (Rs. 10,000/- children each) 4. Funeral expenses Rs. 2,000/- 5. Transport expenses Rs. 2,000/- Total Rs. 6,21,400
The enhanced compensation now awarded will also bear interest at 9% from the date of filing of the claim petition till the date of payment. Insofar as the negligence and the apportionment of liability, the orders of the Tribunal stands confirmed.
The civil miscellaneous appeal is allowed as above. No costs.