IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 MACA.No. 175 of 2007() ----------------------------------- OPMV.778/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANTS/CLAIMANTS IN OP(MV): ----------------------------------------------------------------------- 1. MOLLY, AGED 47 YEARS, W/O. LATE VARGHESE, RESIDING AT CHERICKAL HOUSE, EREEKADAVU, KOTTAYAM. 2. MILU RACHEL, AGED 20 YEARS, D/O. LATE VARGHESE, RESIDING AT CHERICKAL HOUSE, EREEKADAVU, KOTTAYAM. 3. AKHIL C.VARGHESE, AGED 16 YEARS, S/O. LATE VARGHESE, RESIDING AT CHERICKAL HOUSE, EREEKADAVU, KOTTAYAM, A MINOR REPRESENTED BY GUARDIAN AND NEXT FRIEND THE FIRST APPELLANT. 4. NIKHIL C.VARGHESE, AGED 16 YEARS, S/O. LATE VARGHESE, RESIDING AT CHERICKAL HOUSE, EREEKADAVU, KOTTAYAM, A MINOR REPRESENTED BY GUARDIAN AND NEXT FRIEND THE FIRST APPELLANT. BY ADV. SRI.G.RAJAGOPAL SRI.THOMAS M.JACOB RESPONDENT(S): RESPONDENTS IN OP(MV): ---------------------------------------------------------------- 1. BIJI JOSEPH, MANJAKUNNEL HOUSE, KALIYAR P.O., THODUPUZHA. 2. VIJAYAN, S/O.AYYAPPAN, CHAKKALAKUNNEL HOUSE, VENMATTOM KARA, KALIYAR P.O., THODUPUZHA. 3. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, THODUPUZHA. 4. ORIENTAL INSURANCE CO. LTD., BAKER JUNCTION, KOTTAYAM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2008, ALONG WITH MACA NO.151 OF 2008 & MACA NO. 152 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A. No.175 of 2007, M.A.C.A. No.151 of 2008 AND M.A.C.A. No.152 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of November, 2008 J U D G M E N T ---------------------- Thomas P. Joseph, J. These appeals arise from the common award in O.P(MV) Nos.778 and 1107 of 2001 on the file of the Motor Accidents Claims Tribunal, Perumbavoor (for short, “the Tribunal”). Insurer of the offending lorry, third respondent before the Tribunal has preferred M.A.C.A. Nos.151 and 152 of 2008 challenging the finding regarding negligence and the amount of compensation awarded. Petitioners in O.P(MV) No.778 of 2001 have preferred M.A.C.A. No.175 of 2007 claiming enhanced compensation. Parties are referred as petitioners and respondents as before the Tribunal for convenience. 2. Head both sides. 3. Following points arise for consideration: (1) Whether the finding of the Tribunal that the accident occurred solely due to the rashness and negligence of the second respondent is correct? and (2) Whether compensation awarded is reasonable? 4. Perused the relevant records. 5. Point No.1: M.A.C.A.No.175 of 2007 & M.A.C.A. Nos.151 & 152 of 2008 -: 2 :- Accident occurred on the Muvattupuzha-Perumbavoor road on 2.12.2000 at about 7.45 p.m. First petitioner in O.P(MV) No.778 of 2001 (she is also the first petitioner in O.P(MV) No.1107 of 2001) along with her husband, the deceased was travelling in Jeep bearing Reg. No.KEK-2185 driven by P.W.2. According to them at the place of accident, lorry bearing Reg. No.KL-6/8611 driven by the second respondent and which was going ahead of the Jeep abruptly stopped without giving signal consequent to which the Jeep hit the rear side of the lorry resulting in injuries to the first petitioner and her husband. Husband died of the injuries. Respondents 1 and 2 remained ex parte before the Tribunal. Third respondent-insurer of the lorry attributed negligence of the Jeep driver (P.W.2). as the cause of the accident. It claimed that the police after investigation charge-sheeted P.W.2, driver of the Jeep for causing accident by rash and negligent driving. It is the further contention that charge-sheet against the second respondent was the result of influence. 6. First petitioner gave evidence as P.W.1. Jeep driver was examined as P.W.2. Exhibit A1 is the copy of the FIR, Exhibit A2 is the copy of mahazar for scene of occurrence, Exhibits A3 and A4 are copy of reports prepared by the Assistant Motor Vehicles Inspector for damage on the Jeep and lorry respectively and Exhibit A5 is the copy M.A.C.A.No.175 of 2007 & M.A.C.A. Nos.151 & 152 of 2008 -: 3 :- of charge-sheet against the driver of the lorry. Tribunal after consideration of the evidence found that the accident occurred due to the rashness and negligence of the second respondent, driver of the lorry. Learned counsel for the third respondent contended that the said finding is erroneous in that it is a case of the Jeep hitting the rear side of the lorry which was going ahead. According to the learned counsel, negligence is writ large on P.W.2, driver of the Jeep. Counsel for the petitioners contended that the finding of the Tribunal rested on appreciation of oral and documentary evidence and hence no interference is required. 7. The two vehicles involved in the accident were going in the same direction at the relevant time. Accident occurred at about 7.45 p.m. It is true that Jeep was going behind the lorry and hit the rear side of the lorry. But from that alone it is difficult to say that negligence was on the part of P.W.2, driver of the Jeep alone as contended by the counsel for the third respondent. Attending circumstances are also to be looked into. 8. It is not disputed that P.W.2 as well as the the second respondent were charge-sheeted for causing accident by rash and negligent driving. Though it is contended by the third respondent that it was on account of influence that the police charge-sheeted the M.A.C.A.No.175 of 2007 & M.A.C.A. Nos.151 & 152 of 2008 -: 4 :- second respondent, no evidence in that line is forthcoming. Exhibit A2, copy of scene mahazar shows that the accident occurred 1.30 metres east of western tar end. Unfortunately, width of the road is not given in Exhibit A2. Exhibits A2 to A4 show that lorry suffered damage on its rear side while Jeep suffered damage on its front side. P.W.2, driver of the Jeep gave evidence that the accident occurred on account of the second respondent abruptly stopping the lorry without giving signal. Exhibit A2 shows that lorry was carrying bamboo poles at a height of 2 metres from its platform. As against the evidence of P.W.2, no attempt was made to examine the second respondent. He refused to enter witness box. In the circumstances, contention of the third respondent that there was no negligence on the part of the second respondent cannot be accepted. At the same time, we are also not inclined to think in the facts and circumstances of the case that entire negligence was on the part of the second respondent. P.W.2, driver of the Jeep should also have been careful. Road was sufficiently straight at the accident spot. That means he could have seen the lorry going ahead. If he had kept sufficient distance from the lorry the accident of the nature as in this case on account of the lorry driver abruptly stopping that vehicle for some reason or other could have been avoided. That, accident occurred 1.30 metres east of western M.A.C.A.No.175 of 2007 & M.A.C.A. Nos.151 & 152 of 2008 -: 5 :- tar end indicates that the lorry driver had taken the lorry towards the extreme right side. In these circumstances, we are inclined to think that there was negligence on the part of P.W.2, driver of Jeep to the extent of 20% and the balance 80% can be attributed to the second respondent. Finding of the Tribunal regarding cause of accident is modified accordingly. 9. It is contended by the learned counsel for the petitioners that in O.P.(MV) No.778 of 2001 compensation awarded by the Tribunal is low. Husband of the first petitioner aged 44 years at the time of accident succumbed to the injuries. According to the petitioners, he was engaged in business and agricultural operations earning at the rate of Rs.10,000/- per month. For the reason of absence of acceptable evidence Tribunal fixed Rs.2,500/- as the monthly income of the deceased. Learned counsel for the third respondent contended that even after the death of the deceased there will not be any reduction in the agricultural income. But we are not inclined to accept that contention as such. The deceased would have been able to earn more income from agricultural operations due to his personal attention. Petitioners who are the wife and minor children of the deceased may have to engage somebody to manage the property. These circumstances are also to be looked into while M.A.C.A.No.175 of 2007 & M.A.C.A. Nos.151 & 152 of 2008 -: 6 :- considering the loss of dependency. Considering the age of the deceased and also the fact that he was maintaining wife and three children, we are inclined to think that the monthly income fixed by the Tribunal is on the lower side. Considering all relevant factors, we fix Rs.3,500/- as the monthly income. Deducting 1/3rd towards personal expenses of the deceased, the annual contribution to the petitioners comes to Rs.28,000/-. 10. Considering the age of the deceased and the age of the petitioners, we are inclined to think that the Tribunal has correctly adopted 15 as the multiplier. Thus the total compensation for loss of dependency and contribution comes to Rs.4,20,000/- as against Rs.3,00,600/- awarded by the Tribunal. 11. On other admissible heads, Tribunal has awarded a total sum of Rs.59,750/-. Though counsel for the petitioners contended that the said amount is low, on going through the award and also considering all relevant factors, we are not inclined to accept that contention. Thus the total compensation payable to the petitioners in O.P(MV) No.778 of 2001 comes to Rs.4,79,750/-. In the light of our finding on point No.1 apportioning negligence on P.W.2 and second respondent at 20:80 compensation payable to the petitioners in O.P (MV) No.778 of 2001 by respondents 1 to 3 comes to Rs.3,83,800/-. M.A.C.A.No.175 of 2007 & M.A.C.A. Nos.151 & 152 of 2008 -: 7 :- Thus they are entitled to get additional compensation of Rs.23,450/- which will carry interest at the rate of 7.5% per annum from the date of application till realisation. 12. So far as O.P(MV) No.1107 of 2001 is concerned, petitioner has not sought enhancement of the amount awarded. Third respondent insurer of the lorry challenged the quantum of compensation. The claim pertains to the damage caused to the Jeep. In Exhibit A8, the surveyor has assessed the damages at Rs.1,07,925/-. According to the surveyor, the present market value of the Jeep which is 1988 make is only Rs.78,000/-. The salvage value assessed is Rs.23,000/- and less that amount market value of the Jeep will be Rs.55,000/-. Tribunal considered the bills produced and fixed the damages at Rs.50,000/-. On going through the award, we do not find reason to interfere with the damages awarded to the petitioner by the Tribunal. But consequent to our finding on point No.1 apportioning negligence between P.W.2, driver of the Jeep and the second respondent, petitioner is entitled to get only 80% of the said sum of Rs.50,000/-. Hence damages payable to the petitioner in O.P (MV) No.1107 of 2001 comes to Rs.40,000/-. Award is modified accordingly. Resultantly, the appeals are disposed of in the following lines: M.A.C.A.No.175 of 2007 & M.A.C.A. Nos.151 & 152 of 2008 -: 8 :- (i) Petitioners in O.P(MV) No.778 of 2001 are allowed to realise Rs.23,450/- (Rupees Twenty three thousand four hundred and fifty only) as additional compensation from the respondents with interest at the rate of 7.5% per annum from the date of application till realisation. Third respondent being the insurer of the vehicle is directed to deposit the said amount in the Tribunal. On deposit, petitioners are permitted to withdraw the amount in the ratio fixed by the Tribunal. (ii) Compensation payable to the petitioner in O.P(MV) No.1107 of 2001 is modified as Rs.40,000/- (Rupees Forty thousand only) with interest from the date of application till realisation at the rate awarded by the Tribunal from respondents 1 to 3. Third respondent is directed to deposit the said amount in the Tribunal. On deposit, petitioner is permitted to withdraw the same. J.B. KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv