IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 MACA.No. 111 of 2004(D) ----------------------------------- OP(MV).NO.1247/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL. .................... APPELLANT/ 2ND RESPONDENT: ----------------------------------------------- HASHIM, SON OF MUHAMMED HANEEFA, MULAKUVILAKOM VEEDU, VILBHAGOM DESOM, VETTOOR VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.S.M.PREM, ADV. SMT.K.P.SANTHI. RESPONDENTS/ APPLICANTS AND RESPONDENTS 1 AND 3: -------------------------------------------------------------------------------------- 1. SARASWATHY, DAUGHTER OF SREEDHARAN, AZHUKKANVILA LAKSHAM VEEDU, VETTOOR DESOM, VETTOOR VILLAGE. 2. BABY, DAUGHTER OF SREEDHARAN, AZHUKKANVILA LAKSHAM VEEDU, VETTOOR DESOM, VETTOOR VILLAGE. 3. INDIRA, DAUGHTER OF SREEDHARAN, AZHUKKANVILA LAKSHAM VEEDU, VETTOOR DESOM, VETTOOR VILLAGE. 4. SAKUNTHALA, DAUGHTER OF GOPI, AZHUKKANVILA LAKSHAM VEEDU, VETTOOR DESOM, VETTOOR VILLAGE. 5. RAJU, SON OF GOPI, AZHUKKANVILA LAKSHAM VEEDU, VETTOOR DESOM, VETTOOR VILLAGE. M.A.C.A. NO. 111/2004-D: 6. SANTHOSHKUMAR, SON OF NADESAN, CHAKKY, MUNDAYIL, VARKALA, THIRUVANANTHAPURAM. 7. THE ORIENTAL INSURANCE COMPANY LIMITED, ROHINI BUILDING, THAKARAPARAMBU ROAD, PAZHAVANGADI, THIRUVANANTHAPURAM. R1 TO R5 ADV. SRI.B.JAYASURYA, R7 BY ADV. SRI.V.P.K.PANICKER. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. NO. 111/2004-D: ORDER ON I.A. NO. 250/04 IN M.A.C.A. NO. 111/2004-D DISMISSED 21/11/2008. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. prv. M.N.KRISHNAN, J ===================== MACA No.111 OF 2004 ===================== Dated this the 21st day of November 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Attingal in O.P.(MV)No.1247 of 1998. Claimants are the legal representatives of deceased Sarasamma, who succumbed to the injuries sustained in a road accident on 27.3.1997. The Tribunal found that she has contributed 30% to the accident and the rider of the bike 70% and held respondents 1 and 2 jointly and severally liable for the claim. It awarded a sum of Rs.71,750/- with 9% interest. It is against that decision, the 2nd respondent has come up in appeal before this Court challenging the question of negligence as well as the quantum. 2. Admittedly the deceased was a passenger in a bus. She got down from the bus and through front side of the bus. While she was crossing the road and at that time the accident took place. It is seen from the scene mahazar that the accident had taken place 88 cms. east of the western tar end in a road which is having a width of 5.40 metres and straight vision of 250 metres to the south and 300m metres to the north. Learned counsel MACA 111/2004 -:2:- would contend that the deceased was a blind lady and she did not take care at all and it was on account of her negligence the accident took place. It has to be stated that the rider of the bike was coming behind the bus and when the bus stopped for alighting passengers he attempted to overtake the bus and in that process he met with the accident. It is not known how the accident had taken place on the other extremity of the road which is indicative of one factor that the deceased had almost crossed the road. There was a duty cast upon the deceased as well to wait and see whether any vehicles are coming from the two directions before crossing the road. So also a rider of a vehicle especially when a vehicle like a bus is parked for alighting passengers should be very cautious and must slow down the vehicle so that these type of unfortunate incident does not take place. But unfortunately the rider did not take that much care which he is expected and therefore that has resulted in the accident. The duty of a rider is more towards pedestrians especially under the above mentioned circumstances. Therefore I do not propose to disturb the negligence apportioned as 70% and 30% respectively. Now turning to the quantum of compensation. The Tribunal itself had opined that the deceased was only a pensioner having a monthly pension of Rs.75 to Rs.100/-. Though it is stated that she was a blind person no MACA 111/2004 -:3:- evidence has been produced to prove the same. The Tribunal should have taken a nominal income of Rs.1000/- at least. Similarly the Tribunal need not have awarded Rs.15,000/- as compensation for pain and suffering and Rs.15,000/- towards loss of estate. When dependency is allowed again adding loss of estate as a huge amount will be a duplication and a nominal amount need be awarded in such cases. The claimant had a head injury. She did not survive long after the accident. Towards love and affection the same compensation can be retained. The award passed by the Tribunal is modified as follows. Towards loss of dependency I award Rs.40,000/-, transport expenses Rs.2,000/-, damage to clothing Rs.500/-, funeral expenses Rs.5,000/-, pain and suffering Rs.5,000/-, loss of estate Rs.2,000/-, loss of love and affection Rs.15,000/- making a total of Rs.69,500/- of which the claimants are entitled to 70% of the amount which would come to Rs.45,650/-. In the result, MACA is partly allowed and a revised award is passed whereby claimants 1 to 4 are entitled to realise a sum of Rs.45,650/- with 9% interest from 5.10.1998 till realisation from respondents 1 and 2. They shall take the amount in equal shares. If any amount is deposited that shall be given credit to and disbursed to them. Respondents 1 and 2 are directed to deposit the amount within a period of 90 days from the date of receipt of MACA 111/2004 -:4:- a copy of this judgment. M.N.KRISHNAN, JUDGE Cdp/-