IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 MFA.No. 263 of 1996() --------------------- OP.MV.911/1993 of M.A.C.T.,NEYYATTINKARA .................... APPELLANT(S): -------------- RAJAMMA, KOCHUVILANGARATHALA MELE PUTHEN VEEDU, VADAKODE DESOM, PERUMPAZHUTHOOR VILLAGE, TRIVANDRUM DIST. BY ADV. SRI.R.T.PRADEEP RESPONDENT(S): --------------- 1. MANAGING DIRECTOR, K.S.R.T.C, HEAD OFFICE, TRIVANDRUM (OWNER). 2. THANKARAJ @ THANKAN, S/O.LAZAR NADAR, KALLUVILA KADAYARA THEKKE PUTHEN VEEDU, NEAR PIRAYUMMOODU, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE (DRIVER). R1 BY ADV. SRI.JOHNSON P. JOHN, SC THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. .................................................................... M.F.A. No.263 of 1996 .................................................................... Dated this the 24th day of March, 2009. JUDGMENT Ramachandran Nair, J. The appeal is filed for enhancement of compensation for the death of husband of the appellant in a road accident. The accident occurred on 30.6.1993 at 10.50 p.m. in the Trivandrum-Neyyattinkara Road. The victim suffered injuries on account of hit by a KSRTC bus and he died in the Medical College Hospital after four days of the accident. While the case of the appellant is that the accident is on account of negligence of the bus driver, the driver gave oral evidence to the effect that the victim under the influence of alcohol was carelessly crossing the road and inspite of his efforts, the vehicle hit him leading to injury and consequent death. Even though the driver stood prosecuted for offences punishable under Section 279 and 304A IPC, the MACT disbelieved the case of the appellant and partly believed the evidence given by the driver. This led to disallowance of 50% of the compensation amount on account of contributory negligence. It is 2 against this judgment this appeal is filed for enhancement of compensation and for denial of 50% towards contributory negligence. We have heard counsel appearing for the appellant and Standing Counsel appearing for KSRTC and have gone through the award. 2. The bus obviously has not gone out of road and the accident happened in the tarred portion of the road. Therefore, the case of the bus driver that the victim entered the road in a drunken state cannot altogether be overruled. Since the road is National Highway, there was enough road margin for a pedestrian to walk and therefore, if the pedestrian enters the road, he is running a risk of being hit by the vehicle. However, we feel deduction of 50% towards contributory negligence is on the high side. It is not known why appeal remained undisposed of for such a long time in this court. Standing Counsel for KSRTC submitted that victim was 65 years of age at the time of death and therefore, the multiplier of 5 applied is correct. Moreover, in 1993 his income was taken at Rs.1,000/- per month which is also quite reasonable. Considering all this, we enhance the compensation by a further sum of Rs.15,000/- which the KSRTC is directed to pay without 3 any interest to the appellant through a Demand Draft on production of copy of this judgment, within a period of two months from date of receipt of copy of this judgment. C.N.RAMACHANDRAN NAIR Judge K.SURENDRA MOHAN Judge pms