IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 MACA.No. 2931 of 2009() ----------------------- OPMV.2828/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): 3RD RESPONDENT ---------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LIMITED, THOPPUMPADY NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE,M.G.ROAD,KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): PETITIONERS AND RESPONDENTS 1 & 2 ----------------------------------------------------------------------------------- 1. NIMMY XAVIER,W/O.LATE XAVIER SEBASTIAN, MAPPILASSERY HOUSE,20/1856/1, NORTH OF JISHY HOSPITAL,MUNDAMVELI.PO,KOCHI-7. 2. RIYA XAVIER (MINOR),S/O.LATE XAVIER SEBASTIAN,DO. DO. 3. RAHUL XAVIER(MINOR),S/O.LATE XAVIER SEBASTIAN,DO. DO. 4. THRESSIA SEBASTIAN,W/O.LATE SEBASTIAN, DO. DO. 5. P.THANKAMANI,PROPRIETOR, LAKSHMI INDUSTRIAL,14/1974-A,LAKSHMI NIVAS, KARUVELIPPADI,KOCHI-5. 6. N.H.ANAS,S/O.HASSAN,NELLIKKAPILLY VEETTIL,PALAMUTTAM RAOD, PALLURUTHY, KOCHI-6. ADV. SRI.SREELAL N.WARRIER FOR R1 SRI.SAJEEVAN KURUKKUTTIYULLATHIL FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. ---------------------------------------------------- M.A.C.A No. 2931 OF 2009 ---------------------------------------- DATED THIS THE 29TH DAY OF JULY, 2010 J U D G M E N T Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the 3rd respondent, Insurance Company in OP(MV)No. 2828/2002 on the file of Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated December 30, 2008 directing the appellant to pay a compensation of Rs. 5,23,000/- for the loss caused to the claimants therein on account of the death of one Xavier Sebastian in a motor accident. 2. The facts leading to this appeal in brief are these: One Mr. Xavier Sebastian died in a motor accident which occurred on August 10, 2002 at about 3 p.m near Thevara Puthiya bridge. While deceased was riding his motor cycle, a pick up van bearing registration No. KL- 07/AD-9130 owned by the first respondent, driven by the 2nd respondent and insured with the 3rd respondent dashed M.A.C.A No. 2931 OF 2009 2 against the said motor cycle causing serious injuries to the deceased. He succumbed to the injuries on the second day while undergoing treatment in the hospital. Claimants are the wife, parents and brother of the deceased who filed O.P before the Tribunal under Section 166 of the Motor Vehicles Act claiming a compensation of Rs. 10 lakhs alleging negligence against the 2nd respondent, the driver of the offending pick up van. 3. Respondents 1 and 2, the owner and driver of the offending pick up van filed a joint written statement before the Tribunal admitting the accident but alleging negligence on the side of deceased. The 3rd respondent, the insurer of the offending pick up van filed a written statement admitting the policy but contending that no such accident happened. PWs 1 to 3 were examined and Exts. A1 to A16 were marked on the side of the claimants before the Tribunal. On the side of respondents before the Tribunal RWs 1 to 3 were examined and Exts. B1 to B3 and X1 to X2 series were marked. On an appreciation of evidence, the Tribunal found M.A.C.A No. 2931 OF 2009 3 that the accident occurred due to the negligence on the part of 2nd respondent and awarded a compensation for Rs. 5,23,000/- with interest at the rate of 7% per annum from the date of petition till the expiry of one month from the date of judgment and award and thereafter at 9% per annum till realization and proportionate costs. The 3rd respondent, the insurance company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal regarding negligence. 4. Heard the counsel for the appellant/insurance company and counsel for the claimants. 5. The following points arises for consideration: (i) Whether the findings of the Tribunal that the accident occurred due to the negligence on the part of the 2nd respondent can be sustained? (ii) Whether the compensation awarded is excessive? The case of the claimants was that while the deceased was riding his motor cycle he was knocked down by a Pick up Van. The appellant, Insurance company contended that the M.A.C.A No. 2931 OF 2009 4 deceased fell down from the motor cycle and sustained serious injuries and died as a result of the same and therefore, claimants are not entitled to any compensation from the appellant. On the side of the claimants PWs 1 to 3 were examined before the Tribunal. PW1 is the widow of the deceased. PWs 2 & 3, the two alleged eye witnesses to the incident gave a consistent version regarding the accident. The Tribunal has chosen to believe their evidence as well as Ext.A2, the copy of the police charge against the 2nd respondent. 6. On the side of the Insurance company to prove that no such accident happened, RWs 1 to 3 were examined and Ext. B1, copy of the wound certificate of the deceased issued from Medical Trust Hospital was marked. But the Tribunal has chosen to disbelieve their evidence. In Ext.B1, copy of wound certificate issued from the Medical Trust Hospital, the cause of accident was shown as due to fall from bike. The evidence of RW1, the Doctor who issued B1 does not help the appellant to prove that deceased M.A.C.A No. 2931 OF 2009 5 sustained the injuries by falling from a bike. Admittedly he had recorded the cause of accident as given by the person who brought the injured. PW2 is the personal who brought the injured to the hospital. He has categorically stated that the accident happened when the bike ridden by the deceased was knocked down by the offending van. 7. RW2 is the investigating officer of the criminal case who proved Ext.X2 case diary of the criminal case. The case was registered against the 2nd respondent, driver of the offending pick up van. Therefore, the evidence of RW2 does not in any way help the appellant to prove his case. 8. RW3 is the officer of the Insurance company who conducted investigation in this case. Ext.B3 is the investigation report. He has reported that no such accident happened. He conducted investigation only after one year of the accident. Therefore, no reliance can be placed on his evidence. 9. We have gone through the judgment of the Tribunal as well as evidence adduced by the both the parties M.A.C.A No. 2931 OF 2009 6 before the Tribunal. We are of the view that Tribunal was perfectly justified in accepting the evidence of PWs 1 to 3 and coming to the conclusion that the accident occurred due to the negligence of the 2nd respondent, the driver of the pick up van. The finding of the Tribunal on this point is confirmed. 10. The Tribunal awarded a compensation of Rs. 5,23,000 with interest at the rate of 7% from the date of petition till the expiry of one month from the date of judgment and award and thereafter at 9% per annum till realization. The deceased was aged 38 at the time of accident. Exts. A10 and A12 shows that he had completed Industrial Training Course in 'carpentry'. Ext.A9 is the copy of Pan card. Ext. A14 is the tax deduction certificate. Ext.A15 is the employment certificate issued by the Taj Residency certifying that the deceased was doing various engineering fabrication works, installation, plumbing, masonry, carpentry etc. Ext.A16 is the contribution card issued under Employers Provident Fund Scheme showing M.A.C.A No. 2931 OF 2009 7 that he was receiving monthly wages ranging from 3564 – 5000. Therefore the Tribunal took his annual income as Rs. 54,000/-. After deducting 1/3 for his personal expenses, balance amount was taken as his annual contributions to his family. The Tribunal adopted the multiplier of 13 and awarded a compensation of Rs. 4,68,000/- for loss of dependency. Taking into consideration the age and occupation of the deceased, we feel that compensation awarded by the Tribunal is just and reasonable and not excessive. Thus, we do not find any merit in the appeal. That being so the appeal has to be dismissed. In the result, the appeal is dismissed. No cost. A.K. BASHEER JUDGE P.Q.BARKATH ALI JUDGE PKK M.A.C.A No. 2931 OF 2009 8 PKK