IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 MACA.No. 826 of 2007() --------------------------------- OPMV.200/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S):PETITIONERS IN O.P. (MV) 200/2002 ------------------------------------------------------------------------- 1. K.N.GOPINATHAN,AGED 46 YEARS, S/O.LATE NARAYANAN NAIR,KALAMBLAYIL, EDATHALA, ALUVA. 2. RADHAMANY, AGED 40 YEARS, D/O.LATE NARAYANAN NAIR, DO... 3. K.N.VENUGOPAL, AGED 38 YEARS, S/O.LATE NARAYANAN NAIR, DO.. 4. JAYASREE AGED 35 YEARS D/O.LATE NARAYANAN NAIR. DO.. 5. SREELATHA, AGED 33 YEARS, D/O.LATE NARAYANAN NAIR, DO.. 6. RAJALAKSHMI, AGED 31 YEARS, D/O.LATE NARAYANAN NAIR, DO... 7. RAJENDRAN, AGED 29 YEARS, S/O.LATE NARAYANAN NAIR, DO... BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI SRI.GOPAKUMAR.G. RESPONDENT(S): RESPONDENTS IN O.P. MV.200/2002 ------------------------------------------------------------------------------ 1. MANAGING PARTNER,M/S.URUMBATH MATHAI THARIATH & CO.XIX/320, OLD MARKET, ALUVA, PIN-683 101. 2. JOSEYJACOB, S/O.CHACKO,VALIYMANGALATH, EDAYAZHAM KARA, VACHUR VILLAGE, KOTTAYAM-686 001. 3. NATIONAL INSURANCE CO.LTD,URUMBATH BUILDINGS,R.S.ROAD,ALUVA-683 101. R3 BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE & SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ M.A.C.A.No.826 of 2007 ---------------------------------------------- Dated, this the 19th day of August, 2009 J U D G M E N T K.M.Joseph, J. Appellants are the claimants 2 to 8 in a petition filed under Section 166 of the Motor Vehicles Act. The first claimant was the widow of the deceased and the mother of the appellants. Feeling aggrieved by the amount awarded this appeal is filed. 2. We heard the learned counsel for the appellants and learned counsel for the insurance company. 3. The Tribunal has awarded Rs.2,24,560/-. Rs.1,12,520/- represents medical expenses. Rs.80,040/- has been awarded towards loss of dependency. Apart from that appellant has been granted Rs.15,000/- towards pain and suffering Rs.10,000/- towards loss of love and affection. Of course, no amount is seen awarded towards loss of consortium. The widow passed away during the pendency of the petition. 4. The main contention raised by the learned counsel for the appellants is that the Tribunal has attributed 25 percent negligence to the deceased. He would submit MACA No.826/2007 -2- that it cannot be sustained. 5. Learned counsel for the insurance company supported the award. 6. The deceased was riding a cycle when the accident took place. The Tribunal has found that the total width of the road is 10 metres and the accident was about 3.80 metres from the western tar end. It is found that the deceased was almost crossing the road but had not reached the western extremity. Some degree of negligence is found on the part of the deceased. It is on this basis that contributory negligence is found and Rs.25% is deducted. As noticed, from the award of Rs.2,24,560/- nearly more than half that is Rs.1,12,520/- represents medical expenses. The deceased was on a cycle. The accident took place on a National Highway. Of course, the learned counsel for the insurance company contended that the lorry was driven very slowly. 7. Having regard to the place of the accident and the fact that the deceased was riding a cycle we feel that the Tribunal is not justified in attributing 25 percent negligence MACA No.826/2007 -3- on the part of the deceased. But, we are also not inclined to accept the case of the appellants in toto. There is negligence on the part of the deceased also. We would be justified to apportion the negligence between the deceased and the lorry driver on the ratio 10:90. On this basis the appellants would be entitled to Rs.2,02,000/- in place of Rs.1,68,420/-. Even though the appellants contend that the amount of Rs.15,000/- granted towards pain and suffering is inadequate since the deceased was in hospital for one month we are not satisfied that the said award is unjust. Accordingly, the appeal is allowed in part and the appellants are allowed to realise Rs.2,02,000/- in place of Rs.1,68,420/- with interest at the rate of 7.5 percent from the date of petition till the date of realisation. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS