IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 MACA.No. 1344 of 2004() ----------------------- OPMV.2507/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT/3RD RESPONDENT -------------------------------------- M/S. UNITED INDIA INSURANCE CO.LTD., MALAPPURAM, REPRESENTED BY ITS AUTHORISED SIGNATORY, THIRD PART CLAIMS CELL, M.G.ROAD, ERNAKULAM. BY ADV. SMT.P.A.REZIYA RESPONDENT(S): CLAIMANTS & RESPONDENTS 1 & 2 -------------------------------------------- 1. VELUTHAPARAMBIL SUHARA, W/O. MOIDEEN, AGED 30 YEARS. 2. MOIDEEN S/O. VEERAVUNNI, AGED 37 YEARS, (MOTHER AND FATHER OF DECEASED RAFI) 3. RAJANA (MINOR) AGED 15 1/2 YEARS, REPRESENTED BY MOTHER SUHARA. 4. RASHID (MINOR) AGED 9 1/2 YEARS, REPRESENTED BY MOTHER SUHARA, (SISTER AND BROTHER OF THE DECEASED RAFI, ALL ARE RESIDING AT P.O.KALADI, EDAPPAL (VIA). 5. MOOSA E., ENLAKODAN HOUSE, ARIMBRA, MALAPPURAM. 6. GENERAL MANAGER, MALAPPURAM DISTRICT, CO-OPERATIVE BANK LTD., MALAPPURAM. ADV. SRI.ESM.KABEER FOR R1 TO 4 SRI.U.K.RAMAKRISHNAN, SENIOR ADVOCATE FOR R6 SRI.E.K.MADHAVAN FOR R6 SRI.P.V.LOHITHAKSHAN FOR R6 SRI.V.KRISHNA MENON FOR R6 SRI.SANDEEP.E. FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 1344 of 2004 ------------------------------------------------------ Dated: JULY 23, 2010 JUDGMENT Barkath Ali, J. This appeal under sec.173 of the Motor Vehicles Act is filed by the 3rd respondent/Insurance Company in OP(MV) 2507/1996 on the file of the Motor Accidents Claims Tribunal, Tirur, challenging the judgment and award of the Tribunal dated October 30, 2003 awarding a total compensation of Rs.1,76,000/- with interest at the rate of 9% per annum from the date of petition till realisation to the claimants on account of the death of one boy named Rafi, aged 8, in a motor accident. 2. The claimants are the parents, brother and sister of deceased Rafi who died in a motor accident. On July 23, 1995 at about 6 p.m. while the deceased was walking along the road Anakkampadam, a car bearing registration No.KL-10A/2511 came at a high speed and knocked him down and he sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment at the Medical College Hospital, Thrissur. Alleging negligence against the 1st respondent, driver of the car, and claiming a compensation of Rs.5 lakhs, the claimants filed the OP before the Tribunal under Sec.166 of the Motor Vehicles Act. 3. Respondents 1 to 3, the driver, owner and insurer of the M.A.C.A. 1344 of 2004 2 offending car contested the matter before the Tribunal. Respondents 1 and 2, the driver and the owner of the car, filed a written statement contending that the accident happened when the boy suddenly crossed the road. The 3rd respondent/insurer of the offending vehicle filed a written statement admitting the policy, but contended that the vehicle was driven by one Sasi and not by the 1st respondent, who had no valid driving licence. 4. PWs.1 and 2 were examined and Exts.A1 to A10 were marked on the side of the claimants before the Tribunal. On the side of the respondents, RWs.1 and 2 were examined and Exts.B1 to B3 were marked. On an appreciation of evidence the Tribunal found that the offending car was driven by the 1st respondent at the time of the accident and that the accident occurred due to his negligence and awarded a compensation of Rs.1,59,500/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The 3rd respondent/Insurance Company has now come up in appeal challenging the quantum of compensation awarded and also the finding of the Tribunal that the offending car was driven by the 1st respondent at the time of the accident. 5. Heard the counsel for the appellant/Insurance Company and the counsel for the claimants. 6. The following points arise for consideration: I. Whether the finding of the Tribunal that the offending M.A.C.A. 1344 of 2004 3 car was driven by the 1st respondent at the time of the accident and not by one Sasi can be sustained? II. Whether the compensation awarded by the Tribunal is excessive? 7. As regards the contention of the appellant/Insurance Company that one Sasi was driving the offending car at the time of the accident, we find no substance in this contention. Respondent No.1 has admitted that he was driving the car at the time of the accident. He was also examined as RW.1 before the Tribunal. Police has also charged a case against him. An attempt was made on the side of he appellant/Insurance Company by producing Exts.B1 to B3, petition and letter given by RW1 and and another letter given by RW2 Nasir stating that Moosa, the 1st respondent, was not the driver of the offending vehicle at the time of the accident. The Tribunal has correctly rejected those evidence in the light of the admission made by RW1 before the Tribunal and also as police has charged the case against him. Therefore we are of the view that the Tribunal is perfectly justified in coming to the conclusion that the offending car was driven by RW1 at the time of the accident and that the accident occurred due to his negligence. 8. The Tribunal awarded a total compenstion of Rs.1,76,000/-. The break up of the compensation amount awarded is as under: compensation for loss of income - Rs.1,50,000/- M.A.C.A. 1344 of 2004 4 funeral expenses, loss of estate etc. - Rs. 9,500/- medical expenses - 6,500/- pain and suffering - 10,000/- 9. The Counsel for the appellant argued that the Tribunal went wrong in adopting the Second Schedule to the Motor Vehicles Act in assessing the compensation as the petition was filed under Sec.166 of the Motor Vehicles Act. There is no merit in the above contention. It is settled law that the Second Schedule to the Motor Vehicles Act can be taken as a guide for assessing the compensation. The Tribunal took the annual notional income of the deceased boy as Rs.15000/- and after deducting 1/3rd for his personal expenses, took his annual contribution as Rs.10,000/- and adopted a multiplier of 15 as shown in the Second Schedule and awarded Rs.1,50,000/- for the loss of dependency. We find no error committed by the Tribunal to interfere with the same. We also find that the compensation awarded by the Tribunal is just and reasonable and not excessive. That being so, the appeal has to be dismissed. In the result the appeal is dismissed. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-