IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 MACA.No. 685 of 2009() ---------------------- OPMV.1042/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): 2ND RESPONDENT: ----------------------------- THE UNITED INDIA INSURANCE COMPANY LTD., REPRESENTED BY ITS DY.MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, ERNAKULAM. BY ADV. SMT.RAJI T.BHASKAR RESPONDENT(S): PETITIONERS 1-4 & R1 RESPECTIVELY: ------------------------------------------------- 1. P.V.THAMPI, S/O.VARKEY, KAKKATTU (H) ERAVINALLOOR P.O., PUTHUPPALLY, KOTTAYAM. 2. V.K.SARAMMA, W/O.P.V.THAMPI, OF DO. 3. ANOOP THAMPI, S/O.P.V.THAMPI OF DO. 4. CINU THAMPI, S/O.P.V.THAMPI OF DO. 5. SABU P.V.KARUNATTUPARAMBIL (H), VELLOOKUTTA, PUTHUPPALLY P.O., KOTTAYAM. BY // THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- M.A.C.A. NO. 685 OF 2009 --------------------------------------------------------- Dated this the 26th day of March, 2009 JUDGMENT Basant, J. The second respondent/insurer before the Tribunal is the appellant before us. The respondents/claimants had staked compensation for the loss suffered by them on account of the death of the deceased in a motor accident which took place on 15.1.2006. The claimants are the parents aged 58 and 55 years of the deceased and his adult siblings. The deceased was employed in the Indian Navy and the salary certificate produced shows that he was getting an income exceeding Rs.8,000/-. The deceased was aged 26 years. 2. The Tribunal, on an anxious consideration of all the relevant inputs, proceeded to award a total amount of Rs.4,26,000/- as compensation as per the details given in paragraph 10 of the impugned award which we extract below: i. Transport to hospital : Rs. 1,500.00 M.A.C.A. NO. 685/2009 2 ii. Damage to clothing : Rs. 500.00 iii. Funeral expenses : Rs. 5,000.00 iv. Pain and suffering : Rs. 20,000.00 v. Loss of estate : Rs. 15,000.00 vi. Loss of dependency (48,000x8) : Rs.3,84,000.00 -------------------- Total : Rs.4,26,000.00 -------------------- The said amount was directed to be paid along with interest at the rate of 7.5% per annum. 3. The appellant/Insurance Company which has taken the requisite permission under Section 170 of the Motor Vehicles Act from the Tribunal claims to be aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellant wants to mount against the impugned award, learned counsel for the appellant contends that it was a head on collision between two vehicles and following the dictum laid down in the decision reported in Bijoy Kumar Dugar v. Bidyadhar Dutta, A.I.R. 2006 S.C. 1255, the responsibility for the accident must be apportioned equally between the riders of both the two wheelers involved in the accident. The deceased was riding one motor cycle whereas the 5th M.A.C.A. NO. 685/2009 3 respondent was riding the motor cycle insured by the appellant. It is common case that the 5th respondent did not have a valid driving licence authorising him to ride a two wheeler. The appellant had taken up that contention and the Tribunal had accepted the same and issued consequent direction in favour of the appellant to pay the amount to the claimants and recover the same from the insured. Counsel contends that there is no acceptable evidence to place the entire blame at the doors of the 5th respondent. 4. No oral evidence was adduced by either side. But, we have very satisfactory indications available about the cause of the accident from the final report filed by the police after due investigation in which the 5th respondent was found guilty of rash and negligent driving of the culpable variety. It is also to be noted that the 5th respondent had pleaded guilty to the charge levelled against him. The said plea was accepted, he was found guilty and convicted. No other materials whatsoever is available to indicate even remotely that the deceased was in any way responsible for causing the accident. There is no contention that any of the records including Ext.A3 scene mahazar can suggest the complicity/responsibility of the deceased in causing the accident. In these circumstances, we are satisfied that the conclusion of the Tribunal that the accident occurred M.A.C.A. NO. 685/2009 4 due to the rashness and negligence of the rider of the motor cycle insured by the appellant herein is fair and just and does not at any rate warrant appellate interference. 5. Learned counsel then contends that the quantum of compensation awarded is excessive. All guns are trained at the compensation awarded under the head loss of dependency. The deceased was aged about 26 years. Going by the Second Schedule to the Motor Vehicles Act, 18 is the multiplier applicable. However, the Tribunal took note of the fact that the parents of the deceased are aged 58 and 55 years and felt that the lower multiplier of 8 applicable to the parents alone can be reckoned. The appellant has no quarrel with the multiplier adopted by the Tribunal. The multiplicand adopted was Rs.6,000/- and an amount of Rs.3,84,000/- was awarded as compensation under the head loss of dependency on the calculation 6000 x 12 x2/3x8. 6. Counsel raises a contention that the Tribunal had not realistically taken note of the possible marriage of the deceased and the consequent inevitable reduction in the contribution to the parents. We do take note of that. But the possible increase in salary will have to be taken into account. We also note that the deceased was drawing a salary exceeding M.A.C.A. NO. 685/2009 5 Rs.8,000/- per mensem as is evident from Ext.A5. The Tribunal has, without any specific reason, reckoned only Rs.6,000/- as the monthly income of the deceased. That an authentic document like Ext.A5 has not been proved by examination of witnesses cannot, in the circumstances be held to be crucial as it is a certificate issued by the Commander (Officer- in-Charge), Indian Navy Sports Control Cell (Kochi), Command Stadium, Naval Base, Kochi. The same could safely have been adopted. We note, in these circumstances that sufficient adjustments/approximation has already been made by the Tribunal in fixing the multiplicand and multiplier and it is not justifiable, in these circumstances, to rigidly and mechanically further reduce the multiplicand. The total compensation awarded by the Tribunal, according to us, is absolutely fair and just and the same does not warrant any interference. 7. This appeal is, in the circumstances, dismissed. (R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.A.C.A. NO. 685/2009 6 R. BASANT & C.T. RAVIKUMAR, JJ. M.A.C.A. NO.685/2009 JUDGMENT 26th March, 2009 M.A.C.A. NO. 685/2009 7