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 23RD MAY 2011 / 2ND JYAISHTA 1933 MACA.No. 852 of 2010() ---------------------- OPMV.1191/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT/3RD RESPONDENT -------------- NATIONAL INSURANCE CO.LTD CHENNAI, REP BY THE MANAGER KOCHI REGIONAL OFFICE, M.G.ROAD,ERNAKULAM, COCHIN-335. BY ADV. SRI.E.M.JOSEPH RESPONDENTS/CLAIMANTS 1 TO 5 & RESPONDENTS 1 AND 2 --------------- 1. LAILA BEEGAM AGED 51, W/O.LATE K.M.ABDUL SALAM 3/622,POLLACHI ROAD, KOZHINJAMPARA PO CHITTUR TALUK, PALAKKAD DIST. 2. HAKEEM AGED 27, S/O.LATE K.M.ABDUL SALAM 3/622,POLLACHI ROAD, KOZHINJAMPARA PO CHITTUR TALUK, PALAKKAD DIST. 3. MOHAMMED RAFI, AGED 24, S/O.LATE K.M.ABDUL SALAM 3/622,POLLACHI ROAD, KOZHINJAMPARA PO CHITTUR TALUK, PALAKKAD DIST. 4. NIZAR @ NIZARRUDHEEN AGED 22, S/O.LATE K.M.ABDUL SALAM 3/622,POLLACHI ROAD, KOZHINJAMPARA PO CHITTUR TALUK, PALAKKAD DIST. 5. PATHUMA BEEVI, AGED 76, W/O.K.K.MOHAMMED 3/622,POLLACHI ROAD, KOZHINJAMPARA PO CHITTUR TALUK, PALAKKAD DIST. MACA.NO.852/2010 6. M/S. OMGO DIARY PRODUCTS 47 PATTAKARAR NILAYAM, ARTS COLLEGE ROAD, COIMBATORE -18 7. GANESAN AGED 24, S/O.RAJAN, MELEPADU VEEDU PERUBARACHALLA, KOZHINJAMPARA PO CHITTUR TALUK, PALAKKAD DIST. ADV. SRI.A.R.GANGADAS FOR R1 TO 5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/05/2011 ALONG WITH MACA NO. 470 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.852 OF 2010 & 470 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of May, 2011 JUDGMENT Barkath Ali, J. Both these appeals arise out of the same judgment and award of Additional Motor Accidents Claims Tribunal, Palakkad in O.P.(MV) No.1191/2001 dated May 16, 2009. In M.A.C.A.No.852/2010, the appellant is the third respondent Insurance company. In M.A.C.A.No.470/2011 appellants are the claimants in the O.P. 2. The claimants are the widow, children and mother of deceased Abdul Salam who died in a motor accident. The accident happened on April 6, 2001 at about 5.30 p.m. at Kozhinjampara in Palakkad district. While the deceased was riding his motor cycle bearing Reg.No.KL-09 C/8112 from Govt.U.P.School at Menonpara where he was working as the Headmaster, to Kozhinjampara, he was knocked down by a tempo van bearing Reg.No.TN-38H/7252 driven by the second respondent. The deceased sustained serious injuries and he died on the way to the hospital. Claimants filed the O.P. before the MACA.Nos.852/2010 & 470/2011 2 Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 15 lakhs. 3. Respondents 1 and 2, the owner and the driver of the offending tempo van remained absent before the Tribunal. The third respondent, the Insurance Company filed a written statement admitting the policy, but contended that there was also negligence on the part of the deceased. 4. Exts.A1 to A12 were marked on the side of the claimants before the Tribunal. No evidence was adduced on the side of the contesting third respondent. The Tribunal on an appreciation of evidence found that there was contributory negligence on the part of the deceased to the extent of 30% and assessed a compensation of Rs.11,18,276/- and after deducting 30% , awarded Rs.7,82,793/- with interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. The claimants have filed M.A.C.A.No.470/2011 challenging the finding of the Tribunal regarding contributory negligence on the part of the deceased and claiming enhancement of the compensation awarded. The Insurance Company has filed MACA.Nos.852/2010 & 470/2011 3 M.A.C.A.No.852/2010 contending that as the accident happened as a result of the collision between two vehicles, the Tribunal should have found 50% contributory negligence on the part of the deceased. 5. Heard the counsel for the Insurance Company and the counsel for the claimants. 6. The following points arise for consideration : 1. Whether the finding of the Tribunal fixing the negligence on the part of the deceased and the driver of the offending vehicle at the ratio of 30:70 can be sustained ? 2. Whether the claimants are entitled to any enhanced compensation ? Point No.1 7. The accident was not disputed. The Tribunal found 70% negligence on the part of the driver of the tempo van and 30% negligence on the part of the deceased on the ground that the deceased was on the wrong side of the road as seen from the copy of the scene mahazar Ext.A2. But nobody was examined either on the side of the claimants or on the side of the contesting third respondent. The police has charged the case against the driver of the tempo van. Therefore, MACA.Nos.852/2010 & 470/2011 4 the Tribunal is perfectly justified in holding that there was 70% negligence on the part of the driver of the tempo van and 30% negligence on the part of the deceased. The finding of the Tribunal on this point is confirmed. Point No.2 8. The Tribunal assessed a total compensation of Rs.11,18,276/-. The break up of the compensation assessed is as under : Loss of dependency - Rs.10,84,776/- Pain and suffering - Rs. 2,000/- Transportation - Rs. 2,000/- Damage to clothing - Rs. 500/- Funeral expenses - Rs. 4,000/- Mental shock and agony - Rs. 10,000/- Loss of consortium - Rs. 5,000/- Loss of love and affection - Rs. 10,000/- 9. Counsel for the claimants sought enhancement of compensation for loss of dependency and on other heads. 10. The deceased was working as a Headmaster in Govt.U.P.School, Menonpara drawing a salary of Rs.12,327/-. Ext.A12 is his last pay certificate. The Tribunal on the basis of MACA.Nos.852/2010 & 470/2011 5 Ext.A12 fixed the monthly income of the deceased as Rs.12,327/- which comes to Rs.1,47,924/- per annum. After deducting 1/3 for his personal expenses, the balance amount of Rs.98,616/- was taken as his annual contribution to his family and adopted a multiplier of 11 as the deceased was aged 51 and assessed a compensation of Rs. 10,84,776/- for loss of dependency. 11. Counsel for the Insurance Company would argue that as the deceased was aged 51 at the time of the accident and as he would have retired at the age of 55, the Tribunal should have adopted a lesser multiplier. We find no substance in the above contention. Even after retirement, the deceased would have obtained employment in some other private school or would have conducted tuition and earned substantial income. Therefore, we feel that the Tribunal is perfectly justified in adopting a multiplier of 11. Taking into consideration all these aspects, we feel that the compensation awarded by the Tribunal is just and reasonable and not excessive. That being so, the claimants are not entitled to any enhanced compensation. In the light of our above findings, both the appeals have to be MACA.Nos.852/2010 & 470/2011 6 dismissed. In the result, both the appeals are dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.Nos.852/2010 & 470/2011 7