IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 MACA.No. 2052 of 2007() ----------------------- OPMV.1929/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANTS/PETITIONERS ---------------- 1. ROSAMMA KURIAN, WIDOW OF KURIAN, 2. LORANCE KURIAN, S/O LATE KURIAN, 3. LOBINEE KURIAN, S/O LATE KURIAN, APPELLANTS 1 TO 3 ARE RESIDING AT SRAMBIKAL KORATHARA HOUSE, KURUSUMMOODU P.O., CHANGANACHERRY. 4. LOLITHA GEORGE, W/O GEORGE, RESIDING AT KALARICKAL HOUSE, ELAPPARA, IDUKKI. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENT(S): RESPONDENTS ------------------- 1. ROBIN XAVIER, RESIDING AT PONMALA KUNNEL HOUSE, MURINJAPUZHA, KOKKAYAR. 2. FR. AUGUSTINE, THE SECRETARY, MALANADU TEA FAMERS'S SOCIETY, PARATHODU, KANJIRAPPALLY. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, KOTTAYAM. BY ADV. SRI.K.M.FIROZ FOR R.1,2 SRI.JACOB E SIMON FOR R.1,2 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ. ------------------------------- M.A.C.A.No.2052 of 2007 ------------------------------- Dated this the 24th November, 2009 J U D G M E N T Raman, J. Appellants are the wife, children and mother of deceased Kurian who died in a motor accident on 3.9.2003. He was a person retired from Air Force and was aged 57 years at the time of accident. While the deceased was proceeding in his Maruti Van along with his family, a mini lorry bearing Registration No.KL-5/N-6388, coming from the opposite direction came and dashed against the maruti van. Due to the accident, all the passengers sustained very serious injuries. Though deceased and his child by name Tom George were immediately taken to the hospital, they succumbed to the injuries. Alleging negligence on the part of the lorry driver and claiming an amount of Rs.8 lakhs as compensation under various heads, the claim petition was preferred. M.A.C.A.No.2052 of 2007 2 2. The Tribunal found that the accident occurred not solely due to the negligence on the part of the driver of the lorry, but attributed some negligence on the part of the deceased also, and the blame was apportioned in the ratio 3:1. The total compensation found payable was Rs.4,13,000/-, and 25% was deducted due to contributory negligence and the balance amount of Rs.3,09,750/- was awarded as compensation with interest at the rate of 7%. 3. The appellants contended that there was no justifiable reason for finding any negligence on the part of the deceased. Going by the mahazar, the road where the accident took place was having a width of 7.25 metres and the accident occurred at 3.5 metres north of the southern tar end of the road. The maruti van was proceeding from west to east. PW.1, the wife of the deceased gave evidence in support of her contention and said that the lorry was coming in a rash and negligent manner, over took another vehicle and dashed against their maruti van. Going by the point at which the accident occurred; M.A.C.A.No.2052 of 2007 3 taking note of the fact that the entire front portion of the Maruti Van was completely damaged; and further fact that the deceased was travelling along with his wife and minor children, there is no reason to think that the deceased would have been negligent. Further, as against positive evidence on the part of PW.1, who witnessed the accident, there is no other contra evidence. Though the lorry driver was impleaded as a party, he remained ex parte. The police case also shows that there was no negligence on the part of the deceased. 4. On a totality of the facts and circumstances as discussed above, we are of the opinion that the finding of the Tribunal that the deceased was negligent in some way is not supported by the materials and the evidence on record. Hence, we find that the total negligence is on the part of the lorry driver. If that be so, the appellant is entitled for the whole of the compensation as awarded by the Tribunal, viz., a sum of Rs.4,13,000/=. M.A.C.A.No.2052 of 2007 4 5. Coming to the compensation awarded under different heads, we find that the only head under which the compensation granted is inadequate is towards the 'loss of love and affection'. Wife, two children and the mother are the claimants. The Tribunal has granted an amount of Rs.5000/- as compensation under this head to the wife, and a sum of Rs.2000/- each to the children and mother. We do not disturb the said finding. But, we find that the children and the mother are also entitled to get the same amount of compensation as of wife. Hence, we award a sum of Rs.5000/- each also to the two children and mother under the head 'loss of love and affection'. Thus, the total amount under this head comes to Rs.20,000/-, of which a sum of Rs.11,000/- is already awarded. Accordingly, the appellants are entitled to get a balance sum of Rs.9000/- under this head. 6. Further, we find that no amount is awarded towards 'the loss of consortium' . Accordingly, we grant a sum of Rs.10,000/- under this head. M.A.C.A.No.2052 of 2007 5 7. In this result, the appellants are entitled to get a further sum of Rs.19,000/- as additional compensation, which will carry interest at the rate of 7% from the date of petition till payment, and this amount is in addition to the total amount awarded by the Tribunal without anything there being deducted therefrom. The third respondent, Insurance Company, shall deposit the balance amount, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. The appeal is allowed in part, as above. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.