IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 MACA.No. 112 of 2003(D) ----------------------------------- O.P(MV).NO.1880/1997 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL. .................... APPELLANT/ 2ND RESPONDENT: ----------------------------------------------- NAZEERKHAN, KUNNUMPURATHU VEEDU, KIZHAKKEPURAM P.O., AYIROOR, VARKALA, REPRESENTED BY HIS WIFE AND POWER OF ATTORNEY HOLDER, SMT.SAIFUNNISSA. BY ADV. SRI.B.S.SWATHY KUMAR, ADV. SRI.K.HARILAL. RESPONDENTS/ APPLICANTS 1 TO 4 & 1ST RESPONDENT: ------------------------------------------------------------------------------------ 1. NAZIMA, W/O. ABDUL GAFFOOR, CHARUVILA PUTHEN VEEDU, AYIROOR, KIZHAKKEPURAM P.O., VARKALA, AYIROOR VILLAGE. 2. NADIYA (MINOR), D/O. ABDUL GAFFOOR, REPRESENTED BY HER MOTHER NAZIMA OF -DO-. 3. NAINA (MINOR), D/O. ABDUL GAFFOOR, REPRESENTED BY HER MOTHER NAZIMA OF -DO-. 4. MOHAMMED FATHIMA, W/O. UBAIDATH, THERUVIL THAIVILAKAM, NEAR MAITHANAPALLY, PERUMATHUR P.O. 5. JALESHKUMAR, S/O. KUNJAN, K.P.SADANAM, PERUNGUZHI P.O., AZHOOR VILLAGE. R1 TO R3 BY ADV. SRI.T.M.ABDUL LATHEEF, ADV. SRI.K.ABDUL JAWAD, ADV. SMT.P.RESHMA KABIR, ADV. SRI.P.M.SHAMEER, R5 BY ADV. SRI.A.AHZAR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- prv. J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.A.C.A.NO.112 OF 2003 () ----------------------------------- Dated this the 16th day of October, 2008 J U D G M E N T KOSHY,J. On 16.11.1997, husband of the 1st respondent sustained fatal injuries in a motor accident while he was travelling as a pillion rider in a motor cycle, the above motor cycle bearing Registration No.KCT-3378 capsized and on the next day, he died. The 1st respondent along with two minor children and old mother filed an application for compensation claiming an amount of Rs.5 lakhs. Tribunal awarded an amount of Rs.2,98,300/-. Deceased was a manual worker, aged 35 and he was getting Rs.3,000/- per month. But Tribunal took only Rs.1,800/- as the monthly income and deducted 1/3 rd and Rs.1,200/- was fixed as the monthly income. Considering his age, 17 was taken as the multiplier and compensation was awarded. The 1st respondent in the original petition was named as the owner of the vehicle and 1st respondent filed a written statement stating that he sold the vehicle to another person called Sunil Kumar. He also produced evidence to MACA.112/03 2 show that the matter was intimated to the R.T.O. The said Sunil Kumar was not made a party and he is not aware whether Sunil Kumar has transferred the vehicle again. The deceased died while he was travelling as a pillion rider and the rider of the vehicle was alleged to be the appellant. Apart from the above, no other oral evidence was adduced. Wife of the deceased deposed that the accident occurred while her husband was travelling as a Pillion rider. Ext.A1 is the copy of the F.I.Statement. Ext.A2 is the F.I.R. Ext.A3 is the scene mahazar. Ext.A4 is the AMVI report, Ext.A5 is the copy of the post mortem certificate and Ext.A6 is the charge sheet (final report). Final report shows that after investigation, the Police came to the conclusion that the appellant was the owner cum rider at the time of accident. The appellant though filed written statement to deny his liability thereafter remained ex parte. No evidence was adduced on behalf of the appellant. Based on the evidence in this case and considering the scene mahazar, charge sheet etc., the Tribunal found that the accident occurred due to the negligence of the appellant and directed the appellant to pay the compensation and exonerated the 1st respondent, alleged owner as he has MACA.112/03 3 transferred the vehicle much before the accident. It is contended that there is no evidence to show that the 1st respondent was the owner or rider of the vehicle. F.I.R was registered. He was observed as the rider of the vehicle. It is also stated that he was also the owner of the vehicle. Though it was stated that the rider was acquitted in a criminal case, judgment of the criminal case was not produced before the Tribunal or before this Court. There is no positive averment in the appeal that he was not the owner or rider though it is stated that there is no evidence to prove that he was the owner or rider. It is also stated that there is no evidence to prove that he was riding the vehicle in a rash and negligent manner. There were only general averments. On the basis of the evidence adduced in this case, Tribunal held that the accident occurred due to the negligence of the appellant who was riding the vehicle. Even if the appellant's case that he was not the owner of the vehicle is accepted, the owner has got only vicarious liability, and therefore, the appellant's liability as the driver of the vehicle will stand. Primary liability is on the tort feasor driver who caused the accident due to the negligent driving. MACA.112/03 4 Now with regard to the amount of compensation, the deceased was 35 years old and as per the 2nd schedule, if the motor accident victim's age is between 35 and 40, the apt multiplier is 16 and not 17. Therefore, compensation payable will be Rs.1,200 x 12 x 16 = Rs.2,30,400/- instead of Rs.2,44,800/-. Therefore, total amount is reduced by Rs.14,400/-. So, the total compensation payable is Rs.2,83,900/-. The above amount should be deposited by the appellant with interest as awarded by the Tribunal from the date of application till its deposit after deducting the compensation, if any, paid by the appellant and it can disburse it to the claimants as decided by the Tribunal. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.A.C.A.NO.112 OF 2003 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 16th October, 2008