IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 MACA.No. 771 of 2005() ---------------------- OPMV.380/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): APPELLANTS/PETITIONERS ------------------------------------ 1. KAMALAM W/O PRABHAKARAN, AGED 34 YEARS KADAMGOD, ANCHUMURTHY P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 2. BABY ALIAS MANIKANDAN, AGED 7 YEARS, S/O. PRABHAKARAN, KADAMGOD, ANCHUMURTHY P.O., ALATHUR TALUK, PALAKKAD DISTRICT. 3. PREETHA, AGED 3 YEARS, D/O PRABHAKARAN, KADAMGOD, ANCHUMURTHY P.O., ALATHUR TALUK, PALAKKAD DISTRICT (1ST PETITIONER IS REPRESENTING THE 2ND AND 3RD PETITIONERS) BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): RESPONDENTS -------------------------- 1. HARIHARAN, S/O. BALAKRISHNAN NAIR, VALLIYODI HOUSE, ANCHUMURTHY P.O., ALATHUR TALUK, PALAKKAD (DRIVER OF THE VAN KL 7 C 2016) 2. A.M.SARASWATHY DEVI, VALLIYOLI KALAM, ANCHUMURTHY P.O., ALATHUR TALUK. PALAKKAD (OWNER OF THE VVN KL 7C 2016) 3. NATIONAL INSURANCE CO.LTD., THRISSUR DIVISION, KOLLANNUR DEVASSY SMARAK BUILDING ROUND EAST, THRISSUR 680 001 (POLICY NO.570700/97/6701276 (NEW). THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. .................................................................... M.A.C.A. No.771 of 2005 .................................................................... Dated this the 22nd day of September, 2008. JUDGMENT Ramachandran Nair, J. The appeal remains defective for failure to take steps by the appellants to serve notice on respondents. Since the appeal is pending for the last three years, by order dated 15.9.2008 we directed counsel for the appellants to serve notice on Standing Counsel for the Insurance Company. However, counsel reported that counsel to whom notice was offered for the Insurance Company, declined to receive the same. We have gone through the award and we feel there is no need to serve notice on the Insurance Company because even before the MACT, the Insurance Company did not take any serious steps even to prove the nature of the accident, which on the face of it does not appear to us to be in the way stated in the claim petition and sought to be proved through evidence. Since notice is served on the Insurance Company, we feel the appeal has to be decided based on available evidence and going by the relief we propose, which is only marginal increase of compensation for loss of love and affection and for loss of consortium, we do not think appearance of Insurance Company will make 2 any difference for our decision. We, therefore, proceed to dispose of the case. 2. The case of the appellants that the deceased died of electrocution while sitting inside the cabin of a mini lorry on account of the live electric wire lying across the road is unbelievable. The appellants have stated that even after receiving the electric shock and sustaining burn injuries by the deceased, the driver drove the vehicle one kilometre beyond the place of accident. In the first place, if vehicle ran over a live electric cable, there is no likelihood of those sitting inside getting electric shock because the only contact the vehicle has with the road is tyres which are not conducting materials. Moreover, if shock was experienced in the cabin, in the normal course the driver would have been the bigger victim than the passenger. Therefore, the likelihood is that the deceased while sitting above the goods which is stated to be hay under transport, would have got electric shock from a hanging electric line which would not have been noticed by the driver. To our mind, this is the only way the accident would have been happened and if this has happened, there is obviously contributory negligence on the part of the deceased for traveling above the goods exposing himself to dangers. If the case of the appellants that the deceased 3 was a traveler in a goods vehicle is accepted, then going by the decision of the Supreme Court, appellants are not entitled to get compensation from the Insurance Company. In any case since the Insurance Company has not made any serious effort to establish genuineness of the the case before the MACT, we do not wish to go into the same. 3. Counsel for the appellants prayed for enhancement of compensation under various heads for the reason that deceased was the only bread winner of the family. We find that no evidence was produced to prove income of the decease who was stated to be a headload worker. Therefore, MACT rightly took the income at Rs.1,500/- per month, reduced one third therefrom and fixed the compensation by adopting the multiplier 16. We feel the fixation of compensation under this head is quite reasonable because in the absence of any evidence, the Act provides for taking the annual income at Rs.15,000/- as against which the MACT has fixed Rs.18,000/- as income of the deceased. However, we find force in the contention of the appellants that the compensation awarded for loss of love and affection and for consortium is quite low because the deceased had two minor children and a fairly young wife left behind. We, therefore, increase the compensation for loss of love and affection to the children and 4 for loss of consortium to the wife by Rs.33,500/- thereby enhancing total compensation to Rs.2,50,000/-. The Insurance Company is directed to deposit the additional compensation with interest at 7.5% p.a. from date of application till date of deposit. The appeal stands allowed to the above extent. C.N.RAMACHANDRAN NAIR Judge HARUN-UL-RASHID Judge pms 5 C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. .................................................................... M.A.C.A. Nos.771,986,984,988,751,782,997, 963,1176,799,1584,1588,1168 and 1589 of 2005 .................................................................... Dated this the 15th day of September, 2008. ORDER Ramachandran Nair, J. Counsel for the appellant/appellants will serve copy to any counsel in the panel of Standing Counsel for the concerned Insurance Company. Notice to other respondents will be considered during hearing. Post on 22.9.2008 for disposal. C.N.RAMACHANDRAN NAIR Judge HARUN-UL-RASHID Judge pms