IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 MACA.No. 2762 of 2008() ----------------------- OPMV.980/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANT(S): 3RD RESPONDENT ---------------------------- THE ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE, METRO PALACE, GROUND FLOOR, NORTH RAILWAY STATION ROAD, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORIZED OFFICER, MS.AJITHA KUMARI. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): RESPONDENTS 1 & 2 & PETITIONER --------------------------------------------- 1. THE SECRETARY, KOLLAM AUTOMOBILE EMPLOYEES CO-OPERATIVE SOCIETIES LTD., KADAMPANADU, ADOOR, PATHANAMTHITTA. 2. PRADEEP.G. S/O.GANESHAN, KURUPUMVEETTIL KIZAHKKETHIL VLIYAKOVIL, KOLLAM. 3. BABYKUTTY AMMA, W/O. DECEASED AYYAPPAN PILLAI, ARUNIMA, KALLUMTHAZHAM, KILIKOLLUR, KOLLAM, (PRESENTLY RESIDING AT THEKKEPUTHIYA VEEDU THAZHAM, KARUMPINPUZHA P.O., PANGODU KOTTARAKARA) 4. ANOOP,S/O.DECEASED AYYAPPAN PILLAI, THEKKEPUTHIYA VEEDU, THAZHAM, KARUMPINPUZHA P.O. PANGODU, KOTTARAKKARA. 5. ANUPAMA, S/O.DECEASED AYYAPPAN PILLAI, THEKKEPUTHIYA VEEDU, THAZHAM, KARUMPINPUZHA.P.O PANGODU, KOTTARAKKARA. ADV. SRI.R.ARUN RAJ FOR R3 SRI.R.ARUN RAJ FOR R4,5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2762 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of November, 2010 JUDGMENT Barkath Ali, J. Appellant is the third respondent Insurance Company in O.P.(MV)No.980/2004 on the file of Motor Accidents Claims Tribunal, Punalur. In this appeal the appellant challenges the judgment and award of the Tribunal dated March 11, 2008 awarding a compensation of Rs. 2,32,200/- to the claimants, who are respondents 3 to 5 in this appeal, for the loss caused to them on account of the death of deceased Ayyappan in a motor accident. 2. Claimants are the wife and the two children of deceased Ayyappan. The accident happened on May 28, 2004 at Kadappakkad in Kollam district while the deceased Ayyappan was riding the scooter, he was knocked down by the bus bearing Reg.No.KL/3/A/4149 driven by the second respondent on the Kollam-Chenkotta public road near Aaramar Hotel, Kadappakkad. Deceased sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the District Hospital, Kollam. Alleging negligence against the second respondent in the O.P., the claimants filed the O.P. before the Tribunal MACA.No.2762/08 2 claiming a compensation of Rs. 5,00,000/-. 3. Respondents 1 and 2 in the O.P., the owner and the driver of the offending bus remained absent before the Tribunal. The third respondent/appellant, the insurer of the offending bus filed a written statement admitting the policy . 4. Pws 1 to 3 were examined and Exts.A1 to A10 and Ext.X1 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked on the side of the third respondent. On an appreciation of evidence, the Tribunal awarded a compensation of Rs. 2,32,200/- with interest @ 7.5% per annum from the date of petition till realisation and a cost of Rs.1500/- The Tribunal has also found that there was violation of the condition of the policy as second respondent has no valid driving licence at the time of the accident and allowed the third respondent to recover the compensation amount from respondents 1 and 2. The third respondent Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the above finding of the Tribunal regarding the negligence on the part of the second respondent, the driver of the bus. 5. Heard the counsel for the appellant Insurance Company and MACA.No.2762/08 3 the counsel for the claimants. 6. The following points arise for consideration : 1. Whether the finding of the Tribunal that the accident occurred due to the negligence of the second respondent can be sustained ? 2. Whether the compensation awarded by the Tribunal is excessive ? Point No.1 7. The accident is not disputed. The fact that the deceased died as a result of the injury sustained in the accident is also admitted. The Tribunal found that the accident occurred due to the negligence of the second respondent, the driver of the offending bus. Counsel for the appellant/Insurance Company argued that as this is a case of collision between the two vehicles, there was also negligence on the part of the deceased who was riding the scooter. We find no merit in the above contention. On the side of the claimant, Exts.A1 to A10 were marked and Pws 1 to 3 were examined. It is admitted that police has charged the case against the second respondent which is also evidenced by Ext.A5, copy of the police charge. PW1, the first claimant has testified that the accident occurred due to the negligence of the second respondent . She was not even cross-examined by the counsel for the MACA.No.2762/08 4 third respondent. The evidence of PW1 coupled with Ext.A5 police charge clearly shows that the accident occurred due to the negligence of the second respondent, the driver of the offending bus. Therefore, we confirm the finding of the Tribunal on this point. 8. The next question for consideration is whether the compensation awarded by the Tribunal is excessive. The Tribunal awarded a total compensation of Rs.2,32,000/- . The break up of the compensation awarded is as under : Loss of dependency - Rs. 2,22,200/- Transportation - Rs. 2,000/- Funeral expenses - Rs. 3,000/- Pain and suffering - Rs. 5,000/- 9. Counsel for the claimant argued that the Tribunal fixed the monthly income of the deceased as Rs. 5555/- which is on the higher side as the first claimant would be receiving family pension as the deceased was an ex-military person. There is no substance in the above contention. It is not disputed that the claimant was a retired Subedar from Military Engineering Services. Ext.X1 the relevant documents show that he was drawing a pension of Rs. 2189/-. PW2 is the Manager of State Bank of Travancore, Kilikolloor branch who proved MACA.No.2762/08 5 Ext.X1. Further, Ext.A10 salary certificate issued by PW3, the Manager of the Boots and Boots Company, Kollam shows that deceased was drawing a salary of Rs.6,000/- per month. Taking into consideration all these aspects, we feel that the monthly income fixed by the Tribunal as Rs. 5555/- appears reasonable. After deducting 1/3 for his personal expenses, the balance amount of Rs. 44,440/- was fixed as his annual contribution to his family. The Tribunal adopted a multiplier of 5 as the deceased was aged 63 at the time of the accident and awarded Rs.2,22,200/- for loss of dependency. Taking into consideration the above facts and in the circumstances of the case, we feel that the compensation awarded by the Tribunal is just and reasonable and is not excessive. That being so, the appeal has to be dismissed. In the result, the appeal is dismissed. No cost. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.2762/08 6 MACA.No.2762/08 7