IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 MACA.No. 1409 of 2008() ----------------------- OPMV.29/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT/3RD RESPONDENT: ------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD, METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STATION, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORISED OFFICER. BY ADV. SRI.VPK.PANICKER RESPONDENTS: RESPONDENTS 1 & 2 & PETITIONERS: ---------------------------------------------------------------------------------- 1. MOHAMMED, S/O.UTHANKUTTY, AMBALATH VEEDU, PATTITHARA PANCHAYATH, PADINHARANGADI, PALAKKAD DIST. 2. V.K.KUMMUKUTTY, S/O.KUNJAIDRU, VARAMANGALATH HOUSE, P.O. ANGADI, KUMARANALLOOR, PALAKKAD DISTRICT. 3. MOIDUNNY,S/O.MAMU, ANTHOOR CHANGRACHAM PARAMBIL HOUSE, P.O. ERAMANGALAM, PONNANI TALUK. 4. UMMUKUTTY, W/O.MAMMU, ANTHOOR CHANGRACHAM PARAMBIL HOUSE, P.O, ERAMANGALAM, PONNANI TALUK. 5. SAMENA, D/O.MAMU, DO. DO. 6. SUREENA, D/O. MAMU, DO. DO. 7. KADEEJA, REPRESENTED BY NEXT FRIEND, MOTHER, UMMUKUTTY, ANTHOOR CHANGRACHAM PARAMBIL HOUSE, P.O.ERAMANGALAM, PONNANI TALUK. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------- M.A.C.A.NO.1409 OF 2008 (A) ----------------------------------- Dated this the 23rd day of July, 2008 J U D G M E N T KOSHY,J. A 27 year old young man sustained fatal injuries in a motor accident and his parents and three sisters applied for compensation. An amount of Rs.7,00,000/- was claimed as compensation alleging that accident occurred due to the negligence of the 1st respondent, driver of the vehicle owned by the 2nd respondent and insured by the appellant Insurance company. An amount of Rs.3,50,000/- was awarded as compensation. The dispute is regarding negligence and quantum of compensation. 2. It is argued that accident occurred due to the negligence of the deceased himself who was driving a motor cycle. Ext.A1 is the FIR. As per Ext.A1 FIR, lorry hit the motor cycle while lorry trying to overtake an autorickshaw and that accident occurred due to the negligence of the driver of MACA.1409/08 2 the lorry. PW2 gave F.I.Statement. PW2 was examined to prove the F.I.Statement. He also gave evidence that lorry overtook the auto and during that process, the lorry hit against the motor cycle which came from the opposite side and due to the impact of the collision, the motor cycle was thrown to the western side of the road. Since PW2 gave F.I.Statement and PW2 took the deceased to the hospital, presence of PW2 at the time of accident cannot be disputed. He also stated that motor cycle was going on the correct side and due to the hit, the motor cycle was thrown into the other side of the road. It is submitted that width of the road was 5.20 metres and the motor cycle was lying at the distance of the 50 cms to the east from the western end of the tarred road. The deceased was riding motor cycle from North to South. Therefore, if the position of the motor cycle is looked into, it can be seen that the motor cycle was in the wrong side. It is a well settled principle that a big vehicle, while overtaking, hit the small vehicle and due to that impact, it will be thrown away. After the investigation by the police, police also came to the conclusion that accident occurred due to the negligence of the driver of the lorry. Lorry driver was charge sheeted under Sections 279, 338 and 304-A of the MACA.1409/08 3 I.P.C. as can be seen from Ext.A3 charge sheet. Therefore, from the evidence adduced, tribunal found that accident occurred due to the negligence of the driver of the lorry. Tribunal is bound to consider the evidence adduced before it and from the evidence adduced, only conclusion possible is negligence of the driver of the lorry insured by the appellant insurance company. Therefore, we are of the view that on the basis of the evidence adduced, there is no ground to interfere with the findings regarding negligence. It is true that an interim application was filed for summoning the Police Officer, who filed the charge sheet. Tribunal, in paragraph 11 of the award, cited reasons for rejecting the application as charge sheet only shows that he was charge sheeted. How he was charge sheeted etc. is not explained. Tribunal can rely only on the evidence adduced before it and PW2 an eye witness gave evidence and it is not disputed that FIR was registered on the basis of the statement given by PW2 and PW2's oral evidence is corroborated by A1 and A3 and negligence is found not on the basis of the charge sheet alone. 3. The deceased was 27 years old. If 2nd schedule is taken for guideline, 18 is the multiplier. The parents lost MACA.1409/08 4 their young son and their agony and loss cannot be estimated in money. But tribunal taken only 13 as the multiplier considering the age of the father, as deceased was unmarried. Ext.A10 salary certificate was produced to show that he was a Manager in 'S.Brothers Furniture and Saw Mill' and earning Rs.6,000/- per month. That was proved by PW1. No counter evidence was adduced. The tribunal has accepted the same and then 1/3 rd was deducted and compensation was calculated. The accident occurred in 2005 and considering the present wage structure in Kerala, we are of the opinion that no interference is required in calculation of compensation. Therefore, we see no ground to interfere in the impugned award, and hence, this appeal is dismissed. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 26th May, 2008