IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 MACA.No. 1586 of 2007() ------------------------------------ OPMV.1114/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/THIRD RESPONDENT ------------------------------------------------ THE NATIONAL INSURANCE COMPANY LTD., KOLENCHERRY. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS/PETITIONERS 1 TO 6 AND R1 ----------------------------------------------------------------- 1. SOBHA SIVAN, W/O. LATE SIVAN, THADIYITTAMOLAYIL HOUSE, KANINADU POST, KUTTA KARA. 2. SEENA T.S., D/O. LATE SIVAN, (D.O.B. 27.1.1987), -DO- 3. ASHA SIVAN (MINOR), D.O.B. 14.7.1988, D/O. LATE SIVAN, -DO-, REP. BY MOTHER SOBHA SIVAN, FIRST RESPONDENT HEREIN. 4. AKHIL SIVAN (MINOR), D.O.B. 7.3.1991, -DO- REP. BY MOTHER SOBHA SIVAN, FIRST RESPONDENT HEREIN. 5. T.A. NARAYANAN, FATHER OF LATE SIVAN, AGED 75 YEARS, -DO- 6. KAMALAKSHY @ KALIKUTTY, W/O. NARAYANAN, AGED 70 YEARS, -DO- 7. V.T. RAMESAN, VADAKKEPUTHANPURA HOUSE, KINGINIMATTOM POST, KOLENCHERY. R1 TO R4 & R6 BY ADV. SRI.T.K.KOSHY, SRI.P.GIREESHKUMAR, SMT.V.V.RISANI. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 1586 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 6th day of December, 2010 JUDGMENT Barkath Ali, J. Appellant is the 3rd respondent Insurance Company in O.P.(MV) No.1114 of 2003 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. In this appeal the appellant challenges the judgment and award of the Tribunal dated January 31, 2007 awarding a compensation of Rs.9,67,000/- for the loss caused to the claimants on account of death of one Sivan in a motor accident. 2. Deceased Sivan was a Mechanic in BSNL earning a salary of Rs.8,500/- per month and was aged 43 at the time of the accident. On July 6, 2003 at about 3 p.m. while he was riding his scooter bearing registration No.KL-TU-7354 along Ernakulam – Muvattupuzha road and reached at Karukappilly junction, he was knocked down by a motor cycle bearing registration No.KL-7L-5182 driven by the 2nd respondent in the O.P. Sivan sustained serious injuries and he succumbed to the injuries sustained while undergoing MACA 1586/2007 2 treatment in the hospital. Claimants who are the wife, minor children and parents of the deceased filed the OP. before the Tribunal under section 166 of the Motor Vehicles Act, claiming a compensation of Rs.14 lakhs, alleging negligence against the 2nd respondent in the O.P. 3. Respondents 1 and 2 in the O.P., the owner and rider of the offending motor cycle, remained absent and were set ex parte by the Tribunal. The 3rd respodnent, insurer of the offending motor cycle, filed a written statement admitting the policy . 4. Exts.A1 to A10 were marked on the side of the claimants. Ext.B1 was marked on the side of the respondents in the O.P. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the 2nd respondent in the O.P. and awarded a compensation of Rs.9,67,000/- with interest @ 6.5% per annum from the date of petition till realization. Respondent No.3 in the O.P., insurer of the offending motor cycle, has come up in appeal challenging the quantum of MACA 1586/2007 3 compensation awarded by the Tribuna as well as the finding of the Tribunal regarding the negligence of second respondent in the O.P. 5. The Tribunal awarded a compensation of Rs.9,67,,000/-. Break up of the compensation awarded is as under:- Loss of dependency : Rs.9,18,000 Pain and suffering : Rs. 10,000 Loss of estate : Rs. 2,500 Transport to hospital : Rs. 1,500 Funeral expenses : Rs. 5,000 Loss of consortium : Rs. 10,000 Loss of love and affection : Rs. 20,000 ------------------ Total : Rs.9,67,000 ======= 6. Heard the learned counsel for the appellant Insurance Company and the learned counsel for the claimants. 7. The following points arise for consideration in this appeal:- “1) Whether the finding of the Tribunal that the accident occurred due to negligence of the 2nd respondent in the O.P. can be sustained? 2) Whether the compensation awarded by the MACA 1586/2007 4 Tribunal is excessive ?” 8. The Tribunal found that the accident occurred due to negligence of the 2nd respondent in the O.P., driver of the offending motor cycle. The appellant challenges the above finding of the Tribunal on the ground that the respondent No.2 had reached to the extreme right side of the road for taking a right turn and that therefore there was no negligence on his part. We find no merit in the above contention. The accident happened while the 2nd respondent negligently took a right turn without giving any signal. Therefore there is clear negligence on the part of the 2nd respondent in the O.P. in causing the accident. That apart the police has charged the case against the 2nd respondent in the O.P. There was no contra evidence on the side of the contesting 3rd respondent in the O.P. Therefore we confirm the finding of the Tribunal that the accident occurred due to the negligence of the 2nd respondent in the O.P. 9. The next question for consideration is whether the compensation awarded by the Tribunal is excessive. The MACA 1586/2007 5 learned counsel for the appellant Insurance Company argued that the Tribunal awarded a compensation of Rs.9,18,000/- towards loss of dependency, which is excessive. We find no force in the above contention. The deceased was working as a Mechanic in BSNL earning Rs.8,284/-, which is proved by Ext.A9 series employment certificate and salary certificate. The certificates also show his date of birth November 5, 1959. The Tribunal took the monthly income of the deceased as Rs.8,284/- as shown in the salary certificate. After deducting 1/3rd for his personal expenses, balance amount of Rs.5,100/- was taken as his monthly contribution to his family, which comes to Rs.61,200/- per annum and adopted multiplier of 15 and awarded Rs.9,18,000/- for the loss of dependency, which appears to be reasonable and not excessive. As regards the compensation awarded under other heads, we find the same also to be reasonable and not excessive. That being so, the appeal has to be dismissed. 10. We make it clear that the claimants are entitled to MACA 1586/2007 6 challenge the adequacy of the compensation awarded by the Tribunal. 11. In the result, the appeal is dismissed without prejudice the right of the claimants to challenge the adequacy of the compensation awarded by the Tribunal. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn