IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 MACA.No. 495 of 2006 ----------------------------------- OPMV.1168/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANTS/PETITIONERS 1. MATHEW, S/O.THOMAS, AGED 58 YEARS, RESIDING AT KUDILUPURAYIDATHIL HOUSE, PULICKATHOTTY P.O., AYYAPPUNPARA, VANNAPPURAM VILLAGE. 2. THRESSIAMMA, W/O.MATHEW, AGED 44, RESIDING AT DO. DO. 3. SUBEESH, S/O.MATHEW, AGED 44, RESIDING AT DO. DO., MINOR REP. BY FATHER MATHEW, S/O.THOMAS, AS NEXT FRIEND. 4. SHEBY, D/O.MATHEW, AGED 19, RESIDING AT DO. DO., REP. BY FATHER DO, DO. DATE OF BIRTH 17.8.1987. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENTS: 1. N.A.HUSSAIN, NEDUMKANDAMPUTHENPURA HOUSE, KIZHAKKEKARA, MUVATTUPUZHA. 2. N.H.SHAJAHAN, S/O.HUSSAIN, DO. DO. 3. THE ORIENTAL INSURANCE CO. LTD., DIVISION OFFICE, T.H.TOWERS, MARKET ROAD, MUVATTUPUZHA. 4. BIJU JOSEPH, KANIMATTATHIL HOUSE, ANICADU, AVOLY, MUVATTUPUZHA. 5. THE NEW INDIA ASSURANCE CO. LTD., MUVATTUPUZHA. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13/07/2010, ALONG WITH MACA NO.602 OF 2005 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.602 OF 2005 & M.A.C.A.No.495 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of July 2010 JUDGMENT Basheer, J. These two appeals which are at the instance of the insurance company and the claimants are being disposed of by this common judgment, since they are directed against the same award passed by the Motor Accidents Claims Tribunal arising from a claim petition filed under Section 163 A of the Motor Vehicles Act. 2. The accident in question occurred when a two wheeler collided with a mini lorry on May 24, 2001 at Anicadu within the limits of Muvattupuzha Police Station. The case of the claimants, who are the parents, brother and sister of deceased Sherin, was that the two wheeler on which Sherin was travelling happened to be knocked down by the driver of the mini lorry because of his rash and negligent driving. Sherin sustained fatal injuries to which he succumbed later. The two insurance companies with which the vehicles were insured tried to put the blame on each other. 3. The Tribunal, after considering the documentary evidence produced by the claimants and marked as Exts.A1 to A9, came to the conclusion that deceased Sherin himself was responsible for the accident. In other words, the Tribunal exonerated the lorry driver. However, the Tribunal proceeded to hold that since the claim was under Section 163 A of the Act, the insurer of the two wheeler was liable to pay a sum of Rs.1,79,500/- with 6% interest to the claimants towards compensation. M.A.C.A.No.602 OF 2005 & M.A.C.A.No.495 OF 2006 :: 2 :: 4. The above finding and order are under challenge in MACA 602/05 filed by the said insurance company. Claimants have preferred MACA 495/06 seeking enhancement of the compensation awarded to them. 5. First of all we will deal with the appeal preferred by the insurer of the two wheeler. The specific case of the claimants was that deceased Sherin was riding on the two wheeler as a pillion rider. He was knocked down from the two wheeler by the mini lorry. Sherin succumbed to the injuries in the hospital later. At the time of his death, Sherin was aged 20 and he was working as a labourer earning Rs.2,500/- per month. As against a claim of Rs.4,08,000/- the Tribunal awarded a sum of Rs.1,79,500/-. 6. The Tribunal noticed that in Ext.A1, First Information Report, it was seen recorded that Sherin was riding the two wheeler. A perusal of Ext.A1 will show that deceased Sherin was in an unconscious condition at the time when the police went to the hospital on the next day after the accident. But significantly, the statement (Ext.A4) given by the first informant viz. Raju S/o Joseph will unambiguously show that Sherin was riding on the two wheeler as a pillion rider. The Tribunal took note of the above statement given by the first informant which was available in Ext.A4 final report submitted by the police before the court. The first informant had categorically stated that the accident had occurred solely because of the rash and negligent driving of the mini lorry by its driver. 7. It is pertinent to note that in the first information report also the police had recorded that the two wheeler was being driven by one Biju Joseph and deceased Sherin was riding on the same as a pillion rider. But surprisingly the M.A.C.A.No.602 OF 2005 & M.A.C.A.No.495 OF 2006 :: 3 :: Tribunal proceeded to hold that in Ext.A, first information report, the police had recorded that Sherin was driving the two wheeler. Therefore, the observation made by the Tribunal that the version in Ext.A1, first information report is that deceased Sherin was driving the two wheeler is totally incorrect, to say the least. 8. It is true that the first informant had later changed his version and stated before the police that it was Sherin who was driving the two wheeler. We need not say much about this so called “further statement” given by the first informant. The fact remains that the police had charge sheeted the driver of the lorry after completing the investigation. In our view, the very fact that the police had charge sheeted the lorry driver will go a long way to show that the investigating agency had found that the accident had occurred because of the negligence of the driver of the mini lorry. Significantly the owner and driver of the mini lorry did not contest the case. In that view of the matter, the finding entered by the Tribunal is liable to be set aside. We do so. The Tribunal, in our view, ought to have been more careful, especially, when relevant records are available before it. If only the Tribunal had gone through the entire records carefully, such a conclusion could not have been made. 9. In view of the above finding, it has to be necessarily held that the insurer of the mini lorry is liable to pay the compensation. Ordered accordingly. 10. What remains to be considered is the question whether the claimants are entitled to get any enhancement of compensation awarded by the Tribunal. It is seen from the award that the Tribunal has taken the monthly income of the deceased as Rs.1,250/-. The accident occurred in the year 2001. Even a manual M.A.C.A.No.602 OF 2005 & M.A.C.A.No.495 OF 2006 :: 4 :: labourer in 2001 would have earned a minimum of Rs.150 per day. 11. Anyhow, in the facts and circumstances of the case, we are of the view that it will be just and reasonable to assess the monthly income of the deceased as Rs.2000/-. Applying a multiplier of 16 and after deducting 1/3rd for the personal expenses of the deceased, the compensation payable under the head of dependency will come to Rs.2,88,000/-. No interference is warranted as regards the compensation awarded under the other heads. Thus the appellant shall be entitled to get an additional compensation of Rs.1,28,000/- with 7.5% interest. The amount, if any, paid by the appellant in MACA 602/05 shall be reimbursed by the insurer of the lorry M/S Oriental Insurance Company within one month from the date of receipt of a copy of this judgment. Appeals are disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes