IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 MACA.No. 338 of 2006(A) ----------------------- OPMV.1373/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S)/CLAIMANT & ADDL.2ND CLAIMANT IN THE OP: ---------------------------------------------------------------- 1. BISHOP MAR GEORGE PUNNAKKOTTIL, S/O. OUSEPH, BISHOP'S HOUSE, KOTHAMANGALAM DIOCESE KOTHAMANGALAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, FR.CHERIYAN VARICATT, S/O. MANI VINCENT, BISHOP'S HOUSE, KOTHAMANGALAM DIOCESE, KOTHAMANGALAM. 2. ALEYKUTTY JOSE, W/O. JOSE, KOCHUPURA HOUSE, CHEMMANNAR, IDUKKI. BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) RESPONDENT(S): RESPONDENTS 1 TO 3 IN THE OP: -------------------------------------------- 1. SANTHAMMA JACOB, W/O. JACOB MATHEW, MANAGING PARTNER, NATIONAL TRANSPORTS, CHULLICKAL, KOCHI. 2. DINESAN, S/O. NARAYANANKUTTY, KOLLAMKUDY HOUSE, KADAYIRIPPU. 3. THE BRANCH MANAGER, THE NATIONAL INSURANCE CO. LTD., MATTANCHERRY BRANCH. ADV. SRI.LAL GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------------------------------------- M.A.C.A.NO. 338 OF 2006 --------------------------------------------------------- Dated this the 16th day of October, 2008 JUDGMENT Ramachandran Nair, J. Appeal is filed for enhancement of compensation for the death of a 37 year old priest in a motor bike accident whose mother is the second appellant. 2. Heard counsel appearing for the appellants and Standing Counsel appearing for the Insurance Company. 3. Counsel appearing for the appellants submitted that even though the first appellant is the Bishop under whom the deceased was working, he is not claiming any compensation for the death of the deceased. The Motor Accidents Claims Tribunal, Muvattupuzha found that the accident occurred on account of the negligence of the deceased who was the rider of the motor bike and consequently limited the compensation to Rs.50,000/- under Section 140 of the Motor Vehicles Act. The case of the appellants is that the accident occurred on account of the negligence of the lorry driver who was charge sheeted under Sections 279 and 338 read with Section 304-A I.P.C. Counsel appearing for the Insurance Company M.A.C.A. NO.338/2006 2 submitted that the Tribunal rightly found that the scene of occurrence and the damage caused to the vehicle are sufficient to prove negligence of the deceased. 4. After hearing both sides and going through the award, we feel the Tribunal concluded its finding merely based on the scene of occurrence and the damages caused to the vehicle. Admittedly, the accident occurred in a curve and the truck was coming down a hilly area and the deceased was riding up the curve. We are of the view that mere collision of the front wheel of the two wheeler driven by the priest on the mudguard of the rear tyre of the lorry by itself is not conclusive evidence that the deceased was riding the motorbike at a high speed or in a negligent manner. The road was only less than 5 metres wide and the fact that bike did not hit the front of the truck itself shows that the bike rider was not on the wrong side. The next question is whether the deceased was in an uncontrollable speed so as to cause the accident. There is nothing to indicate that the bike rider was at a high speed because he was also negotiating a curve. In the absence of any other direct evidence, we are of the view that at the maximum contributory negligence can be attributed to the deceased. We, therefore, modify the award by holding that there is contributory negligence on the part of the deceased. M.A.C.A. NO.338/2006 3 5. So far as compensation is concerned, the second appellant, mother of the deceased is the only claimant and she was aged 75 in 2001. The deceased was a priest. Therefore, his mother cannot claim regular dependency on him. However, counsel for the appellants pointed out that deceased was the sole son of the second appellant and the church never barred him from assisting his mother at her old age. Moreover, the priest was earning a fairly good salary as a Higher Secondary School Teacher. In the circumstances and by taking into account contributory negligence of the deceased, we grant additional compensation of Rs.1,00,000/- in addition to Rs.50,000/- granted by the Tribunal with direction to give entire compensation to second appellant. Additional compensation will carry interest at the rate of 7 1/2 % per annum from the date of application till date of payment. The appeal is allowed to the extent indicated above. (C.N. RAMACHANDRAN NAIR) JUDGE (HARUN-UL-RASHID) JUDGE sp/ M.A.C.A. NO.338/2006 4 C.N. RAMACHANDRAN NAIR & HAURN-UL-RASHID, JJ. M.A.C.A. NO. 338/2006 JUDGMENT 16th October, 2008