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 MARCH 2010 / 2ND CHAITHRA 1932 MACA.No. 1735 of 2007() ------------------------------------ OPMV.884/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT/3RD RESPONDENT ----------------------------------------------- NATIONAL INSURANCE COMPANY LTD., REP. BY ITS MANAGER, KOCHI REGIONAL OFFICE, T.P.CELL, M.G.ROAD, ERNAKULAM. BY ADV. SMT.RAJI T.BHASKAR RESPONDENTS/PETITIONERS 1 TO 3 & RESPONDENTS 1 & 2 RESPECTIVELY ----------------------------------------------------------------------------------------------------------------- 1. CHANDY N.V., S/O. VARKEY, NALLOOKUNNEL, KADANADU VILLAGE, KURUMANNU P.O. 2. ELSY CHANDY, W/O CHANDY, -DO- -DO- 3. SHAINY. N.C., D/O. CHANDY, -DO- -DO- *4. ANILKUMAR, THEKKILLATHU VEEDU, MANNANAM KARA, ATHIRAMPUZHA VILLAGE. *(DELETED) * THE NAME OF THE 4TH RESPONDENT IS DELETED FROM THE PARTY ARRAY, AS PER ORDER DATED 19/08/2009 IN I.A.2341/2009. 5. RAMESH. N.V., AYODYA (H), PUNNATHARA WEST, ETTUMANOOR, KOTTAYAM. R1 TO R3 BY ADV. SRI.JACOB SEBASTIAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No. 1735 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 23rd day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act third respondent (Insurance Company) in O.P. (MV) No.884 of 2003 of the Motor Accidents Claims Tribunal, Pala challenges the judgment and award of the Tribunal dated February 27, 2006, awarding a compensation of Rs.3,16,196/- to the claimants for the loss caused to them, on account of the death of Shaiju in a motor accident. 2. The facts leading to this appeal in brief are these:- Deceased Shaiju was a Salesman in Sulabha Super Market, conducted by the Pala Marketing Co-operative Society and used to earn Rs.3,575/- per month, according to the claimants. On July 19, 2003 deceased Shaiju was travelling in an auto-rickshaw bearing registration No. KL- 5/2413 along Ettumanoor - Pala road. When the auto- MACA 1735/2007 2 rickshaw reached in front of the Kottaramattom Bus Terminal, a bus bearing registration No.KL-5/M-7806, driven by the first respondent came at a high speed and dashed against the auto-rickshaw in which the deceased was travelling. He sustained serious injuries and he succumbed to the injuries sustained on that day itself while undergoing treatment at Medical College Hospital, Kottayam. First claimant is his father, second petitioner is his mother and third petitioner is his sister. According to the claimants, the accident occurred due to the negligence on the part of the driver of the offending bus. The first respondent as the driver and second respondent as the registered owner and third respondent as the insurer of the offending bus are jointly and severely liable to pay the compensation to the claimants. 3. Respondents 1 and 2 before the Tribunal, the driver and owner of the offending bus, remained absent and were set ex parte by the Tribunal. The third respondent insurer of the offending bus (appellant) filed a written MACA 1735/2007 3 statement, admitting the policy and further contending that the incident occurred due to the negligence of the driver of the auto-rickshaw in which the deceased was travelling. 4. The driver of the auto-rickshaw involved in the accident filed O.P. (MV) No. 987 of 2003 claiming compensation. The owner of the auto-rickshaw has field O.P. (MV) No. 988 of 2003 claiming compensation for the damage caused to the auto-rickshaw. All these original petitions were jointly tried and disposed of by a common award by the Tribunal. 5. Exts. A1 to A22 were marked on the side of the claimants in all these original petitions. No evidence was adduced by contesting third respondent, the appellant in this appeal. The Tribunal, on an appreciation of the evidence, awarded a compensation of Rs.3,16,196/- with interest at the rate of 7.5% p.a. from the date of petition till realization and costs. The Insurance Company has come up in appeal, contending that the compensation awarded by the Tribunal is excessive and challenging the finding of the MACA 1735/2007 4 Tribunal that the accident occurred due to the negligence of the driver of the bus. 6. Heard the learned counsel appearing for the appellant and the learned counsel appearing for respondents 1 to 3. 7. The following points arise for consideration in this appeal:- 1) Whether the finding of the Tribunal that the accident occurred due to negligence on the part of the driver of the bus can be sustained? 2) Whether the compensation awarded by the Tribunal is excessive ? 8. The learned counsel for the appellant argued that the finding of the Tribunal that the accident occurred solely due to the negligence of first respondent is not correct and that there was also negligence on the part of the driver of the auto-rickshaw. We find no merit in the above contention of the appellant Insurance Company. There is MACA 1735/2007 5 absolutely no evidence adduced by the appellant to prove the same before the tribunal. On the other hand, the police has charge-sheeted the case against the driver of the bus, the first respondent, which is proved by Ext.A2 final report submitted before the learned Magistrate, which prima facie shows that the negligence was on the part of the first respondent, driver of the bus. The appellant Insurance Company could have examined the first respondent, driver of the offending bus, to prove that there was also negligence on the part of the driver of the auto-rickshaw. The appellant did not take any steps to examine him as a witness. Therefore, the tribunal is perfectly justified in finding that the accident occurred due to negligence on the part of the offending bus by the first respondent. 9. The Tribunal awarded a total compensation of Rs.3,16,196/-. The break up of the compensation awarded is as under:- Transport to hospital : Rs.2,000/- Funeral expenses : Rs.3,000/- Damage to clothing : Rs.250/- MACA 1735/2007 6 Medical expenses : Rs.2,946/- Pain and suffering : Rs.10,000/- Loss of love and affection : Rs.10,000/- Loss of estate : Rs.2,88,000/- ------------------ Total : Rs.3,16,196 ======== 10. The tribunal took the monthly income of the deceased as Rs.4,000/- and adopted a multiplier of 18. As the deceased was aged 28 at the time of his death and deducted 2/3rd for his personal expenses and awarded a compensation of Rs.2,88,000/- for the loss of estate and for the loss of dependency. 11. The learned counsel for the appellant argued that as claimants 1 and 2, father and mother of the deceased, were aged 52 and 50 respectively and the Tribunal should have adopted a multiplier of 13, as shown in Second Schedule of the Motor Vehicles Act. There is no substance in the above contention. The third respondent, the unmarried sister of the deceased was only aged 20 at the time of the accident. Further, the learned counsel for the appellant submitted that the first claimant, father of the MACA 1735/2007 7 deceased, was blind and second claimant, mother of the deceased, was laid up with due to illness. That apart, the tribunal has taken the monthly income of the deceased as Rs.4,000/- and deducted 2/3rd for his personal expenses instead of 1/3rd. Taking into consideration all these aspects, we feel that the tribunal is perfectly justified in adopting the multiplier of 18 in this case. That apart, we find that the compensation awarded by the tribunal is just and reasonable and therefore, we are not disturbing the same. That being so, we find no merit in the appeal and the same is liable to be dismissed. In the result, the appeal is dismissed No costs. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.