IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 MFA.No. 135 of 2002() --------------------- OPMV.168/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT: APPELLANTS/PETITIONER: --------------------- 1. BHAMADEVI, AGED 43 YEARS, W/O. LATE CHINNAKUTTAN POOVATHIL PARAMBU, BOMMANNUR PARUTHIPULLY, ALATHUR TALUK, PALAKKAD DISTRICT. 2. C. PRASAD, AGED 23 YEARS, S/O. LATE CHINNAKUTTAN, POOVATHIL PARAMBU, BOMMANNUR PAUTHIPULLY, ALATHUR TALUK, PALAKKAD DISTRICT. 3. C. PRIYA, AGED 20 YEARS, D/O. CHINNAKUTTAN, POOVATHIL PARAMBU, BOMMANNUR PARUTHIPULLY, ALATHUR TALUK, PALAKKAD DISTRICT. 4. C. PRADEEP, AGED 17 YEARS, S/O. CHINNAKUTTAN, POOVATHIL PARAMBU, BOMMANNUR PARUTHIPULLY, ALATHUR TALUK, PALAKKAD DISTRICT. (MINOR APPELLANT NO.4 REPRESENTED BY GUARDIAN AND NEXT FRIEND MOTHER, 1ST APPELLANT). BY ADV. SRI.C.RAGHAVAN RESPONDENTS: RESPONDENTS: ------------------------- 1. MURALEEDHARAN, AGED 44 YEARS, S/O. KARUNAKARAN, K.G. CHAVADI VELANTHAVALAM P.O., CHITTOOR TALUK, PALAKKAD DISTRICT (DRIVER OF LORRY KLF 9311). M.F.A. NO.135/2002 2. THAMARAKANNA, AGED 45 YEARS, S/O. KRISHNASWAMY, 11/180, GENESHAPURAM, PAPAMPALLAM, KANJIKKODE, PALAKKAD (KLF 9311 LORRY OWNER). 3. NEW INDIA ASSURANCE COMPANY, M.A. LINE, T.B. ROAD, PALAKKAD (INSURER OF LORRY). BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.No.135 OF 2002 ------------------------------------- Dated 4th February, 2008 JUDGMENT Koshy,J . A widow and three minor children of a motor accident victim filed an application for compensation contending that late Chinnakuttan, husband of the first appellant, died due to the negligent parking of the lorry by the first respondent. The above lorry was owned by the second respondent and insured by the third respondent insurance company. The Tribunal found that the lorry was insured by the third respondent insurance company at the time of accident, but, according to the Tribunal, the accident occurred due to the negligence of the deceased himself. Therefore, Tribunal granted only Rs.50,000/= as compensation payable under Section 140 of the M.V.Act., apart from Rs.14,500/= payable for funeral expenses, loss of estate, pain and suffering etc. Thus, total amount awarded was Rs.64,500/=. The finding of negligence and quantum of compensation are disputed in this appeal. It has come out in evidence that the Scooter hit on the back of parked lorry. F.I. Statement and the documents attached therein show that lorry had an accident and consequently it was parked near the road margin in the National Highway. Seven metres was the width of the road. It is the case of the MFA.135/2002 2 claimants that a vehicle was coming from the opposite side and, therefore, the deceased swerved to the left side. The lorry was parked without any parking light or without any signal and the scooter hit behind the lorry. It is true that the unfortunate widow and minor children were unable to give any further evidence regarding the cause of accident. Lorry driver also did not appear before the Tribunal and deny the allegations of negligence levelled against him. It is true that lorry was parked on the left side of the road. The Scooter hit on the parked lorry, but, there is no case that any prcautionary measure was taken by the lorry driver when the lorry was parked there due to a previous accident involving the lorry. The parking lights were switched off. The road was a busy National Highway and having a width of only seven metres. When vehicles are coming from the opposite side, naturally, rider of the motor cycle would have swerved to the left side and the accident occurred. Considering the facts and circumstances of the case, we are of the opinion that motor cyclists was negligent by 75% and lorry driver by 25%. Therefore, insurance company of the lorry has to pay 25% of the compensation awarded. 2. With regard to the quantum of compensation, deceased was aged 45 and he was an Assistant Project Officer, Regional A.I. MFA.135/2002 3 Centre, Palakkad. His monthly salary as per the salary certificate produced is Rs.3,578/= (Ext.A5). It is true that he was a Government employee. There is likelihood of wage revision and prospects of increase in salary apart from promotions, increments and grade promotions. Vagaries of life cannot be predicted. But, taking prospects in life and also considering the fact that he has 10 more years of service, we take Rs.3,600/= as the monthly income and after deducting one third for personal expenses, Rs.2,400/= as the loss of monthly contribution to the family. Taking guidance from the second schedule, we take 13 as the multiplier. Therefore, compensation payable for loss of family contribution is Rs.3,74,400/= (2400 x 12 x 13). Wife was aged only 38. So, we award Rs.10,000/= for loss of consortium. We award Rs.5,000/= each to the three minor children as compensation for loss of love and affection (all together Rs.15,000/=). Tribunal has granted Rs.14,500/- for loss of estate, funeral expenses, pain and suffering etc. We are not changing the same. Therefore, the total compensation payable is Rs.4,13,900/=. 25% of the above amount (Rs.1,03,475/=). Tribunal has awarded Rs.64,500/=. Therefore, the additional compensation payable will be Rs.38,975/=. The above amount of Rs.38,975/= should be deposited by the third respondent insurance company with 7.5% from the date of application till its deposit, over and above the amount decreed by the Tribunal. MFA.135/2002 4 Since the accident occurred 10 years ago, on deposit of the same, appellants are allowed to withdraw the same in equal proportion. The appeal is partly allowed. J.B.KOSHY JUDGE K.HEMA JUDGE tks