IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 MFA.No. 981 of 2000() ------------------------------- OPMV.1104/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANTS: RESPONDENTS ------------------ 1. GRACY, W/O. M.I.VARKEY ALIAS VARKICHAN. 2. VISHAK VARKICHAN, S/O. M.I.VARKE, MINOR, AGED 14 YEARS. 3. MERINVARKICHAN, D/O. M.I.VARKEY, MINOR, AGED 11 YEARS. 4. VINOI VARKICHAN, S/O. M.I.VARKEY, MINOR AGED 8 YEARS. 5. MARY ETTERS, W/O. LATE ETTERA. ALL APPELLANTS RESIDING AT MANGALLY HOUSE, KANHIRAN, POTTASSERY P.O., MANNARGHAT. (MINOR APPELLANTS 2 TO 4 REP.BY GUARDIAN AND MOTHER IS APPELLANT) BY ADV. SRI.T.M.SUNIL SMT.S.CHITHRA RESPONDENTS: RESPONDENTS ----------------------- 11. M.V.MOHAMMED MUSTHAFA, S/O. K.M.VEERAN, AMINA MANZIL, OOTY ROAD, PERINTHALMANNA,. 2. RAMDAS, S/O. VASU, CHIRAYIL HOUSE, MUTHUKURRUSSI, THACHAMPARA, MANNARGHAT. M.FA. NO.981/2000 3. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, CALICUT ROAD, PERINTHALMANNA. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL - R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/02/ 2008, ALONG WITH MFA NO. 1038 OF 2000 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NOS.981 & 1038 OF 2000 () ----------------------------------- Dated this the 1st day of February, 2008 J U D G M E N T KOSHY,J. Appellants are the unfortunate widow, three children and mother of a motor accident victim who sustained injuries in an accident on 22.8.1993. They claimed a compensation of Rs.6,00,000/-. Tribunal has assessed a compensation of Rs.2,73,700/-. It was found that there was 25% contributory negligence in the part of the deceased, and therefore, 1/4 th of the amount assessed was reduced and amount awarded was only Rs.2,05,275/-. The appellants questioned the finding of contributory negligence as well as the quantum of compensation. 2. The records would show that deceased was riding his motor bike from Mannarkkad along the road at the place of accident alongwith a pillion rider. An autorickshaw driven by the 2nd respondent owned by the 1st respondent and insured by MFA.981 & 1038/00 2 the 3rd respondent was going ahead. The deceased in the process of overtaking the autorickshaw, the 2nd respondent swerved his autorickshaw abruptly towards right and hit the motor cycle driven by the deceased and the motor cycle went out of control and hit against a road side electric post and deceased fatal injuries. PW2 pillion rider was examined. After perusing the FIR, scene mahazar, Exts.A5 and A6 MV reports of both auto and motor cycle, tribunal came to the conclusion that even though autodriver was negligent, if the rider of the motor cycle was cautious, he could have avoided the accident, and therefore, 25% negligence was fixed on the part of the driver of the motor cycle. On going through the records and evidence, we fully agree with the above findings and we see no ground to interfere in the findings of contributory negligence of 25% on the part of the deceased. 2. With regard to the quantum of compensation, appellant claimed that deceased was an agriculturist and his monthly income was Rs.15,000/-. He was having an arecanut plantation. But no evidence was adduced regarding his income before the court except the oral evidence tendered by the 1st appellant. In any event, he was maintaining a family. He was MFA.981 & 1038/00 3 having three children and mother and he was the only earning member of the family. In the circumstances of the case, we fix Rs.3,000/- as the monthly income against his claim of monthly income of Rs.15,000/-. He was 33 years old. His wife was only 30 years. He had three minor children. The Supreme Court in Smt.Supe Dei and others v. M/s.National Insurance Company Ltd. And another (JT 2002 (Suppl.1) SC 451) held that the second schedule of the Motor Vehicles Act is framed for the purpose of awarding compensation under Section 163-A, but, it serves as a guideline for determination of compensation under Section 166 of the Motor Vehicles Act. Considering the age of the deceased, 17 is the apt multiplier. 1/3 rd has to be deducted for personal expenses. Therefore compensation payable for dependency will be Rs.2,000 x 12 x 17 = Rs.4,08,000/-. Tribunal has awarded only Rs.2,59,200/-. Therefore additional compensation payable will be Rs.1,48,800/-. We are of the view that for loss of consortium, no amount was awarded. The widow was only 30 years at the time of accident. Therefore, we are of the opinion that Rs.10,000/- should be awarded for loss of consortium and Rs.2,500/- each should be awarded for loss of love and MFA.981 & 1038/00 4 affection and fatherly care to the three children. For pain and sufferings, transportation expenses and funeral expenses etc. tribunal has granted Rs.14,500/-. We see no ground to change the same. Hence additional compensation payable will be Rs.1,66,300/-. Out of Rs.1,66,300/-, 25% has to be deducted and balance amount will be Rs.1,24,725/-. The above amount should be deposited by the 3rd respondent Insurance company with 7.5% interest from the date of application till its deposit over and above the decreed amount by the tribunal. On deposit of the amount, Rs.10,000/- is allowed to be withdrawn by the 5the appellant mother of the deceased, 1/3 rd of the amount is allowed to be withdrawn by the 1st appellant (widow) and balance should be deposited in the name of the minor children in a nationalised bank enabling them to withdraw the same at the age of 21. Accordingly M.F.A.No.981/2000 is partly allowed and M.F.A.No.1038/2000 is dismissed. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NOS.981 & 1038 OF 2000 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 1st February, 2008