IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 MACA.No. 705 of 2006(C) ---------------------- OPMV.691/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT(S): APPELLANT/THIRD RESPONDENT: ----------------------------------------- THE MANAGER, NATIONAL INSURANCE COMPANY LTD., M.G. ROAD, KASARAGOD. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): CLAIMANTS & 1,2,4 & 5: ------------------------------------- 1. ZUHRA, W/O. ABDULRAHIMAN K.A., RESIDING AT KUNHIKANAM, ALAMPADY POST, NAIMARMOOLA, KASARGOD TALUK. 2. AHAMAD SHABAD, AGED 10 YEARS. 3. RASHIDA, AGED 6 YEARS. 4. SHAHNIBA, AGED 4 YEARS, (RESPONDENTS 2 TO 4 ARE MINORS REPRESENTED BY THEIR MOTHER, NEXT FRIEND, FIRST RESPONDENT ALL RESIDING WITH THE FIRST RESPONDENT. 5. ABDULRAHIMAN K.A., S/O. ALIKUNHI, R/AT NEKKARE, NAIMARMOOLA, ALAMPADY POST, KASARGOD TALUK. 6. C.H. SHAFI, S/O.C.K.ABDUL HAMEED, KAZHI LANE, THALANGARA POST, KASARGOD. 7. P. RAMACHANDRAN, S/O. KELU MANIYANI, R/AT PULIKODAN VEEDU, THACHANGAD, PANAYAL P.O., HOSDURG TALUK KASARGOD. 8. K. SUDHAKARAN, S/O. P.GOVINDAN, R/AT KUTHIRUMMAL HOUSE, KODAKKAD POST, VIA. TRIKARIPUR, HOSDURG TALUK. ADV. SRI.JAWAHAR JOSE FOR R7 SRI.M.RAMESH CHANDER FOR R1-4 SRI.P.NARAYANAN FOR R8 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON 17/07/2009 DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. NO: 705 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the ___th Day of July, 2009. JUDGMENT Joseph Francis J. This appeal is filed by the third respondent in OP(MV) 691/02 on the file of M.A.C.T, Kasargod. Respondents 1 to 4 herein are the petitioners 1 to 4, Respondents 5 and 6 herein are the respondents 1 and 2 in that OP, which was filed under Section 163A of the Motor Vehicles Act. Respondents 7 and 8 herein are the supplementary respondents 4 and 5 in that OP. 2. The allegation is that on 23.3.2001 while deceased Shihab and others were travelling in an autorikshaw bearing no:Kl- 14A/3698 from Kunhikanam to Ichilangod driven by first respondent and when the autorikshaw reached near Chandragiri guest house, Mogral Puthur at about 3.15 p.m., a motor cycle bearing no: KL- 13A/3703 came in high speed and after overtaking a lorry hit against the autorikshaw, as a result of which the autorikshaw overturned and M.A.C.A. NO: 705 OF 2006 : 2 : thereby Shihab and others sustained serious injuries. Subsequently, Shihab died due to the injuries sustained in the accident. The accident was due to the negligence of both the drivers of the vehicles. First respondent was the driver, second respondent was the owner and third respondent was the insurer of the autorikshaw. The first petitioner is the mother and petitioners 2 to 4 are the brothers and sisters of Shihab. The first respondent is the father of Shihab. The petitioners claim Rs.2,00,000/- as compensation. Third respondent filed a written statement admitting the policy of the autorikshaw and contends that the accident was due to the negligence of the motor cyclist. In view of the contentions of third respondent, supplementary respondents 4 and 5 were impleaded as they are the rider and owner of the motor cycle. Fourth respondent filed written statement contending that accident was due to the negligence of first respondent and that compensation claimed is excessive. 3. In the Claims Tribunal, PW1 was examined and Exts. A1 to A3 and B1 and B2 were marked. The Claims Tribunal on considering the evidence found that the accident was due the rash and M.A.C.A. NO: 705 OF 2006 : 3 : negligent driving of both drivers of the vehicles and awarded an amount of Rs.1,54,500/- as compensation together with interest at the rate of 9% per annum from the date of petition till the date of realisation from all the respondents jointly and severally and third respondent was directed to pay the entire compensation with liberty to recover half of the award amount from respondents 4 and 5. Against that award, the third respondent filed this appeal. 4. Heard the learned counsel for the appellant and learned counsel for the respondents. 5. Learned counsel for the appellant submitted that the award is opposed to law and evidence to the extent it makes the appellant liable to pay 50% of the compensation and the direction to deposit the full amount is illegal and unsustainable. Learned counsel for the appellant submitted that Ext.B1 charge sheet is not against both drivers but only against fourth respondent who was driving the motor cycle. Learned counsel for the appellant further submitted that Ext.B2 scene Mahazar categorically indicates that the motor cycle was on the wrong side of road. M.A.C.A. NO: 705 OF 2006 : 4 : 6. It is well settled law that while considering the claim petition, the Tribunal is required to hold an enquiry and it is not to act as a criminal court, so as to find whether the petitioner has established the occurrence beyond any shadow of doubt. In the enquiry, if there is prima facie evidence of occurence, there is no reason to disbelieve such evidence. Ext.A1 is the copy of F.I.R in the criminal case registered against the rider of the motor cycle which was registered on the basis of the statement given by first respondent. Ext.B2 is the copy of scene Mahazar prepared on 24.3.01. On going through Ext.B2, it cannot be said that the accident occurred solely due to the negligence of rider of the motorcyle. In a petition under Section 163A of the Motor Vehicles Act the petitioners need not plead or establish that the death in respect of which the claim has been made was due to any wrongful or neglect or default of the owner of the vehicle or vehicles concerned or any other person. PW1 claims to be an eye witness to the accident. PW1 deposes that while he was driving his autorikshaw through the public road the autorikshaw driven by first respondent came from behind and overtook his autorikshaw and hit against the M.A.C.A. NO: 705 OF 2006 : 5 : motor cycle. PW1 further deposes that the accident was due to the negligence of first respondent who was driving the autorikshaw. First respondent did not go into the witness box to prove that he was not negligent. Therefore, an adverse inference can be drawn against him. Considering the facts and circumstances of this case we are of the view that learned Claims Tribunal is justified in finding the accident occurred due to the negligence of both the drivers of the vehicles involved in the accident. 6. The Claims Tribunal assessed the compensation on the basis of structured formula as provided under Section 163A of Motor Vehicles Act. Since the deceased was not an earning member, Rs.15,000/- was taken as early income and after deducting 1/3 towards personal expenses Rs.10,000/- was fixed towards dependency. As deceased was aged 12 years, 15 was taken as suitable multiplier and Rs.1,50,000/- was awarded as compensation for loss of dependency. Rs.2,000/- was awarded for funeral expenses and Rs.2,500/- towards loss of estate. As the Claims Tribunal assessed the compensation in accordance with Section 163A of Motor Vehicles Act, we are of the M.A.C.A. NO: 705 OF 2006 : 6 : view that the compensation assessed by the Claims Tribunal is just and reasonable. 7. In the decision reported in National Insurance Company Ltd. Vs. Sivasankara Pillay (1995 (1) KLT 51), it is held that : “the direction or observation permitting the appellant-insurance company to realise 25% from any other person or his insurer through civil suit is of no avail in view of S.110-F of the Motor Vehicles Act, 1939 (which corresponds to S.175 of the Motor Vehicles Act, 1988), Jurisdiction of the civil court stands barred with the constitution of a Claims Tribunal for the area concerned to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area” 8. In view of the principles laid down in the above ruling, we are of the view that Claims Tribunal is not justified in directing the appellant to deposit the entire amount of compensation and allowing the appellant to recover 50% from supplemental respondents 4 and 5 in the O.P. Therefore that direction is liable to be set aside. M.A.C.A. NO: 705 OF 2006 : 7 : Accordingly, this appeal is allowed in part. The compensation awarded in O.P.691/02 on the file of MACT, Kasargod is confirmed. The direction to deposit the entire compensation by the appellant Insurance Company is set aside and third respondent in the OP is directed to pay only 50% of the compensation awarded in that O.P. There is no order as to cost. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/