IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 MACA.No. 1757 of 2006() ----------------------- OPMV.286/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA, WAYANAD .................... APPELLANT(S): APPELLANT/2ND RESPONDENT -------------------------------------- TAMIL NADU STATE TRANSPORT CORPORATION REP.BY ITS MANAGING DIRECTOR, UDHAGAMANDALAM, NILIGIRIS DIST, TAMIL NADU. BY ADV. SRI.P.RAVINDRAN (SR.) SRI.V.G.SANKARAN RESPONDENT(S): PETITIONERS/1ST RESPONDENT ----------------------------------------- 1. N.PARVATHI, AGED 42 YEARS, W/O.LATE PAITHAL, KOMMATTU HOUSE, THAZHATHOOR POST, S.BATHERY TALUK. 2. SEENA, AGED 19 YEARS, D/O.LATE PAITHAL, KOMMATTU HOUSE, THAZHATHOOR POST, S.BATHERY TALUK. 3. SAJITHA, AGED 16 YEARS, (MINOR), D/O.LATE PAITHAL, KOMMATTU HOUSE, THAZHATHOOR POST, S.BATHERY TALUK. (REP. BY MOTHER, N.PARVATHY THE FIRST RESPONDENT) 4. SEEJA, AGED 9 YEARS, (MINOR), D/O.LATE PAITHAL, KOMMATTU HOUSE, THAZHATHOOR POST, S.BATHERY TALUK, (REP.BY MOTHER, N.PARVATHI THE 1ST RESPONDENT). 5. B.R.NOORMUHAMMED, AGE NOT KNOWN, S/O.K.BAHADURKHAN, DOOR NO.6/41, SINKARATHOPPU, WELLINGTON, SUSSEX POST, NILGIRIS DIST., TAMIL NADU, (DRIVER OF TN 43 NO.157 BUS). ADV. SRI.S.EASWARAN FOR R1 TO 4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.1757 of 2006 -------------------------------------- Dated this the 27th day of November, 2008. JUDGMENT Thomas P.Joseph, J. Second respondent in O.P.(MV) No.286 of 1998 of Motor accidents Claims Tribunal, Kalpetta, Wayanad (for short, ‘the Tribunal’) has preferred this appeal challenging the award dated 12.4.2005. 2. Heard both sides. 3. Following points arise for consideration:- I. Whether accident was occurred due to the negligence of the bus owned by the appellant? II. Whether compensation awarded is excessive? 4. Perused the relevant records. Point No.I 5. Respondents 1 to 4, wife and children of the deceased filed application claiming compensation from the appellant and fifth respondent. Deceased met with a motor accident on 21.4.1998. According to respondents 1 to 4, he was riding a motor cycle and the bus driven by the fifth respondent and owned by the appellant came from the opposite side in a rash and negligent manner and hit the deceased. He succumbed to the injuries. First respondent gave evidence as PW1 and marked Exts.A1 and A2 to prove the allegation of MACA No.1757/2006 2 negligence. Ext.A1 is the copy of first information report against the fifth respondent for causing death of the deceased by rash and negligent driving of the offending vehicle. Ext.A3 is the copy of scene mahazar. Learned counsel for appellant contended that Tribunal has not entered any finding regarding the cause of accident. 6. It is not disputed that the fifth respondent was chargesheeted by the police for causing death of the deceased by rash and negligent driving of the bus owned by the appellant. It is true that the Tribunal has not in so many words stated that the accident occurred due to the negligence of the fifth respondent. It is seen from paragraph 3 of the award that the Tribunal has proceeded on the basis that the accident occurred due to the rash and negligent driving of the fifth respondent (first respondent before the Tribunal) and hence, appellant and fifth respondent are liable. Since the police after a full-fledged investigation and relying upon the mahazar for scene of occurrence as well as the statement of the witnesses of occurrence, came to the conclusion that the accident was due to the negligence of the fifth respondent and chargesheeted him, fifth respondent was obliged to show that that there was no negligence on his part. The mere fact that the fifth respondent filed written statement denying negligence on his part and attributing negligence on the part of the deceased is not by itself sufficient. Fact that fifth respondent was chargesheeted by the police as aforesaid is not rebutted by the fifth respondent. Therefore, we accept the contention of the learned counsel for respondents 1 to 4 that the accident MACA No.1757/2006 3 occurred due to the rash and negligent driving of the bus by the fifth respondent. Point No.II. 7. It is contended by the counsel for appellant that compensation awarded is excessive. According to the learned counsel, monthly income of the deceased was fixed without any basis. It is also contended that compensation awarded on all counts are excessive. Counsel for respondents 1 to 4 contended that considering the nature of occupation of the deceased as a rationshop owner by Ext.A6, no interference is called for. It is also contended by learned counsel for respondents 1 to 4 that compensation was not awarded to the respondents 2 to 4, children of the deceased for loss of love and affection. 8. Deceased was aged 49 years at the time of accident. Respondents 1 to 4 were aged 42, 19, 16 and 9 respectively at that time. These facts are not under challenge. Considering the age of the deceased, Tribunal was justified in taking 13 as the multiplier. No interference is required in that regard. 9. So far as monthly income of the deceased and contribution to the respondents 1 to 4 are concerned, claim of respondents 1 to 4 was that deceased was earning, as a rationshop dealer and agriculturist at the rate of Rs.20,000/- per month. Obviously, in the absence of evidence in that line, Tribunal was not inclined to accept that and fixed the monthly income at Rs.6,000/-. Ext.A6 is the retail dealer's permit issued to the deceased. It shows that he was actually running the rationshop. However, finding of the Tribunal MACA No.1757/2006 4 that deceased was earning at the rate of 6,000/- per month is not supported by any evidence. Considering the nature of occupation of the deceased and that he was maintaining comparatively a large family consisting of wife and three children, met their expenses for education and other purposes we are inclined to think that deceased was earning at least Rs.4,000/- per month. Monthly income of the deceased is refixed accordingly. Less one third for personal expenses, the annual contribution to respondents 1 to 4 is Rs.32,000/- and taking 13 as the multiplier, compensation payable for loss of dependency and contribution comes to Rs.4,16,000/- as against Rs.6,24,000/- awarded by the Tribunal. 10. Though counsel for appellant contended that compensation awarded on other counts are also excessive, we are not inclined to accept that contention after going through the award and compensation awarded on other counts. 11. It is however, seen that compensation was not awarded for loss of love and affection to respondent 2 to 4, children of the deceased. They were in the age group of 19-9 during the time of accident. Due to the death of the deceased, they lost fatherly affection, love, care and guidance from the deceased which is required to be compensated. Taking all the relevant circumstances, we award Rs.15,000/- as compensation for loss of love and affection to respondents 2 to 4. Thus, the compensation payable to respondents 1 to 4 is as under:- MACA No.1757/2006 5 i. Compensation for loss of dependency and contribution - Rs.4,16,000/- ii. Compensation for loss of consortium to the first respondent - Rs.10,000/- iii. Compensation for loss of love and affection to respondents 2 to 4 – Rs.15,000/- iv. Compensation for loss of estate - Rs.2,000/- v. Compensation for transportation charges - Rs.1,000/- vi. Funeral expenses – Rs.3,000/- Total = Rs.4,57,000/- 12. Though it is contended by the learned counsel respondents 1 to 4 that rate of interest (6% per annum) awarded by the Tribunal is low, we are not inclined to accept that contention since the rate of interest is a matter within the discretion of the Tribunal and since interest was awarded considering the circumstances that prevailed on the date of award. Resultantly, this appeal is allowed in part and the award under challenge is modified to the extent that respondents 1 to 4 are allowed to realize from the appellant and fifth respondent Rs.4,57,000/- (Rupees Four lakhs and fiftyseven thousand only) as compensation with interest from the date of application till realization and cost, as awarded by the learned Tribunal. Appellant shall deposit the amount in the Tribunal. Respondents 1 to 4 shall share the amount in the ratio directed by the Tribunal. First respondent is permitted to withdraw Rupees MACA No.1757/2006 6 One lakh from her share. Rest of the amount shall be deposited in the name of respondents 1 to 4, respectively for a period of three years with liberty to them to approach the Tribunal to withdraw any portion of the amount if such a contingency arose. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks The figure and words “Rs.4,57,000/- (Rupees Four lakhs and fifty seven thousand only)” occurring in the 10th and 18th lines of page 5 of the judgment are corrected as Rs.4,47,000/- (rupees four lakhs and forty seven thousand only) vide order dated 20/07/2010 in I.A.No.329/2010 in M.A.C.A.No.1757/2006. Sd/- Registrar (Judicial)