IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 MACA.No. 290 of 2010() --------------------------------- OPMV.227/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT/IST PETITIONER ------------------------------------------ VAZHUTHANAPPALLIL ROSY SEBASTIAN, VAZHUTHANAPPALLIL HOUSE, MANJOOR SOUTH POST, VAIKOM TALUK. BY ADV. SRI.MATHEW JOHN (K), SRI.AJEESH K.SASI. RESPONDENTS-RESPONDENTS & PETITIONERS 2 & 3 ------------------------------------------------------------------------------ 1. S. VIJAYAKUMAR, S/O.SUBRAMANYAM, NO.30, KAMARAJA STREET, KANCHIPURAM DISTRICT, TAMIL NADU-631 501. 2. ARUMUKHAM, S/O.CHINNAPPA, DOOR NO.61, VILAKADIKOIL STREET, KANCHIPURAM TOWN, TAMIL NADU. 3. THE NEW INDIA ASSURANCE CO. LTD., NO.514/515, GANDHI ROAD, KANCHIPURAM, TAMIL NADU. 4. VAZHUTHANAPPALLIL AJIN, VAZHUTHANAPPALLIL HOUSE, MANJOOR SOUTH POST, VAIKOM TALUK. 5. VAZHUTHANAPPALLIL ANIL, DO. DO. R3 BY ADV. SRI.KKM.SHERIF, SRI.A.A.ZIYAD RAHMAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/03/2011, ALONG WITH MACA NO. 2294 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. Nos. 290 and 2294 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 22nd day of March, 2011 JUDGMENT Barkath Ali, J. Both these appeals arise out of the same judgment and award of the Motor Accidents Claims Tribunal, Pala in O.P. (MV) No.227 of 2007 dated September 17, 2009. M.A.C.A.No.290/2010 is filed by the first claimant in the O.P. while M.A.C.A.No.2294/2010 is filed by the second respondent – Insurance Company. In these appeals the appellants challenge the judgment and award of the Tribunal awarding a compensation of Rs.34,78,420/- for the loss caused to the claimants on account of death of one Sebastian in a motor accident. 2. The accident happened on January 16, 2007 at about 5.45 p.m. near Kurianadu junction. Deceased Sebastian was driving his car bearing registration No.KL-36/297. At that time a bus bearing registration No.TN-21-H-9977, driven by the second respondent, came from the opposite direction and dashed against the car of the deceased. He sustained serious MACA 290/2010 & con. case 2 injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital at about 8.45 p.m. on the same day. Alleging negligence against the second respondent, the claimants, who are the widow and children of the deceased Sebastian, filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.83,88,000/-. 3. Respondents 1 and 2 in the O.P., the owner and the driver of the offending bus, remained absent before the Tribunal. The third respondent, the insurer of the offending bus, filed a written statement admitting the policy, but attributed negligence to the deceased. PWs.1 and 2 were examined before the Tribunal and Exts.A1 to A10 were marked on the side of the claimants. Exts.B1 to B3 were marked on the side of the contesting third respondent. On an appreciation of the evidence, the Tribunal found that the accident occurred due to the negligence of the second respondent, the driver of the offending bus, and awarded a compensation of Rs.34,78,420/- with interest 7% per annum MACA 290/2010 & con. case 3 from the date of petition till realization. The first claimant has filed M.A.C.A.No.290/2010 claiming enhancement of the compensation. The third respondent in the O.P. has filed M.A.C.A. No.2294 of 2010 challenging the finding of the Tribunal regarding negligence and also disputing the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the claimants and the counsel for the Insurance Company. 5. The following points arise for consideration:- 1) Whether the finding of the Tribunal that the accident occurred due to negligence of the second respondent can be sustained? 2) Whether the compensation awarded by the Tribunal is excessive ? If not whether the claimants are entitled to any enhanced compensation? 6. Point No.1:- The counsel for the Insurance Company argued that the accident being a collision between the two vehicles, the Tribunal should have found that there was also some negligence on the part of the deceased. There is no merit in the above contention. PW2, an independent witness, has MACA 290/2010 & con. case 4 testified in a convincing manner before the Tribunal regarding the negligence of the driver of the offending bus. Nothing was brought out during his cross-examination to discredit his evidence. Further the police has charged the case against the second respondent, as revealed from Ext.A4 final report in criminal case. On the other hand, no evidence was adduced by the contesting third respondent to show that there was any negligence on the part of the deceased in causing the accident. Therefore, the Tribunal is perfectly justified in accepting the evidence of PWs.1 and 2 and holding that the accident occurred due to negligence of the second respondent driver of the offending bus. Finding of the Tribunal on this point is confirmed. 7. Point No.2:- The next question for consideration is whether the compensation awarded by the Tribunal is excessive and if not whether the claimants are entitled to any enhanced compensation. The Tribunal awarded total compensation of Rs.34,78,420/-. Break up of the compensation awarded is this:- MACA 290/2010 & con. case 5 Loss of dependency : Rs.34,17,420 Transport to hospital : Rs. 1,000 Funeral expenses : Rs. 10,000 Loss of consortium : Rs. 20,000 Loss of love and affection : Rs. 20,000 Mental shock : Rs. 10,000 ------------------ Total : Rs.34,78,420 ======= 8. The counsel for the claimants sought enhancement of the compensation for loss of dependency and on other heads. At the same time, the counsel for the Insurance Company would contend that the compensation awarded by the Tribunal is excessive. 9. The deceased was employed in Austria as Geriatric Nurse earning 1,713 Euro per moth, according to the claimants. Ext.A6 is salary details of the deceased. Ext.A8 employment certificate of the deceased would show that he was employed in the city of Vienna in the capacity of Full-time Medical Orderly during 1996- 2007. Exchange rate of Euro as on 19-1-2007 was Rs.57.29. Therefore, the Tribunal assessed monthly income of the deceased as Rs.97,641/-. The Tribunal fixed the annual income of the deceased as Rs.13,66,970/- MACA 290/2010 & con. case 6 including two special payments. After deducting ½ of his personal expenses, balance amount of Rs.6,83,485/- per annum was taken as his annual contribution to his family. The Tribunal took a multiplier of 5, as the deceased was aged 55 at the time of the accident, and awarded Rs.34,17,420/- for disability caused. Taking into consideration the age of the deceased and also his employment abroad, we feel that compensation awarded by the Tribunal is just and reasonable and not excessive. That being so, the claimants are not entitled to any enhanced compensation. 10. In the light of our above findings, both the appeals have to be dismissed. In the result, the appeals are dismissed. No costs. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn MACA 290/2010 & con. case 7