IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 MACA.No. 350 of 2004(D) ----------------------- OPMV.725/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT/IST RESPONDENT -------------------------------------- V.P.MOIDUKUTTY HAJI, S/O.V.P.K. MANDARI HAJI, ARAKKUPARAMBA.P.O. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.I.V.PRAMOD RESPONDENT(S): PETITIONERS AND 2ND RESPONDENT --------------------------------------------- 1. CHOLAYIL MOHAMMEDUPPA, 70 YEARS, S/O.KUNHAYMU, THAZHEKODE.P.O. 2. CHOLAYIL NABEESA, 58 YEARS, W/O. MOHAMMEDUPPA, THAZHEKODE.P.O. 3. CHOLAYIL RAMLA, 25 YEARS, W/O.LATE USMAN. 4. CHOLAYIL MUHAMMED MUZAMMIL, 6 YEARS, MINOR. 5. CHOLAYIL MUSADDIQUE, 5 YEARS, MINOR. 6. UNITED INDIA INSURANCE COMPANY LTD., P.O.MANNARKAD, PALAKKAD. ADV. SRI.K.P.MUJEEB FOR R1TOR5 ADV. SMT.P.A.REZIYA FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.5.2009, THE COURT ON 1.6.2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No. 350 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of June, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by the first respondent in O.P.(MV) No. 725 of 1999, on the file of the Motor Accidents Claims Tribunal, Manjeri. That is a petition filed under Section 166 of the M.V. Act by the parents, wife and children of one Usman, who died in a motor accident. The allegation is that on 4.5.1998 a motor cycle driven by Usman collided with a jeep driven by the appellant and Usman died due to the injuries sustained in the accident. The learned Claims Tribunal awarded an amount of Rs.3,21,100/- as compensation together with 9% interest p.a. and the appellant was made liable to pay that amount, as there was no valid policy for the jeep at the time of the accident. Aggrieved by the said award, the first respondent filed this appeal. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents. M.A.C.A.No. 350 of 2004 2 3. The learned counsel for the appellant submitted that the accident was caused due to the rash and negligent driving of Usman, who was driving the motor cycle and that the compensation awarded is excessive. The learned counsel for the respondents/petitioners submitted that the accident was caused due to the rash and negligent driving of the jeep by the appellant. Ext.B1 is the copy of the judgment in C.C. 404 of 1998 on the file of the J.F.C.M.-I, Perinthalmanna, showing that the appellant was acquitted on finding that the accident was not due to the rash and negligent driving of the jeep by the appellant. In that case, the first informant, who was an eye witness to the incident, gave evidence to the effect that the accident was due to the rash and negligent driving of the motor cycle by Usman. In Ext.A1, copy of the F.I.R., the first informant has given a statement that the motor cycle driven by Usman hit against the jeep. Subsequently that statement was corrected and it was stated that the accident was due to the rash and negligent driving of the jeep. 4. Before the Claims Tribunal no eye witness was examined to prove the rash and negligent driving of Usman or the appellant. It is M.A.C.A.No. 350 of 2004 3 true that the finding of the Criminal court that the appellant was not negligent in driving the jeep is not binding on the Claims Tribunal. Nonetheless it has got some persuasive value to take into account the act of negligence. 5. Considering the facts and circumstances of the case, we are of the view that deceased Usman also contributed to the negligence and the liability has to be apportioned by applying the theory of contributory negligence in the ratio, 75% towards the driver of the jeep (appellant herein) and 25% on the part of deceased Usman. 6. It has come out in evidence that deceased Usman was aged 30 years. He was an Engineering Mechanic. His monthly income was assessed by the Claims Tribunal at Rs.2,100/- Deducting half towards his personal expenses, the monthly dependency was assessed at Rs.1,400/- 17 is taken as the multiplier. Loss of dependency was assessed at Rs.2,85,600/- Rs.10,000/- was awarded as loss of consortium and Rs.10,000/- was awarded for loss of love and affection. Rs.10,000/- was awarded as compensation for the pain and sufferings. M.A.C.A.No. 350 of 2004 4 7. Considering the evidence on record, we are of the view that the Claims Tribunal has awarded only a just and reasonable compensation. Since deceased Usman is also contributed to the accident by 25%, that percentage has to be deducted from the compensation awarded. 8. This appeal is, therefore, allowed in part. The compensation is reduced to Rs.2,40,825/- and respondents 1 to 5 (petitioners in OP (MV) No.725 of 1999) are allowed to realise that amount together with 9% interest from the date of the petition till the date of realisation and cost of Rs.3,500/- from the first respondent in the Original Petition. The learned Claims Tribunal is directed to apportion the compensation among respondents 1 to 5. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm M.A.C.A.No. 350 of 2004 5