IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 MACA.No. 608 of 2006() ---------------------- OPMV.1024/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): APPELLANTS/PETITIONERS ------------------------------------ 1. SMT.KANAKAMMA @ KANAKA, W/O.LATE ANIYAPPAN, RAMANKULANGARA VELI VEETTIL, S.L.PURAM P.O., MARARIKULAM NORTH, ALAPPUZHA DISTRICT. 2. MISS.SULEKHA.K., D/O.LATE ANIYAPPAN, RAMANKULANGARA VELI VEETTIL, S.L.PURAM P.O., MARARIKULAM NORTH, ALAPPUZHA DISTRICT. 3. MR.PUSHPARAJ.A., S/O.LATE ANIYAPPAN, RAMANKULANGARA VELI VEETTIL, S.L.PURAM P.O., MARARIKULAM NORTH, ALAPPUZHA DISTRICT. BY ADV. SRI.P.VIJAYARAGHAVAN RESPONDENT(S): --------------- 1. MR.ROMEO ANTONY, KALAPURAKKAL HOUSE, EDACOCHI, KOCHI-682 006. 2. MR.ANTONY LOPEZ, S/O.SILVESTER LOPEZ, THAIVEETTIL, NEAR KUMBALAM FERRY, EDACOCHI, KOCHI-6. 3. THE ORIENTAL INSURANCE CO.LTD., REPRESENTED BY ITS MANAGER, PUTHENPURACKAL CHAMBERS, PALLURUTHY, KOCHI-682 006. 4. MR.V.SAJIMON, S/O.VASUDEVAN, VALIYAPARAMBIL VELI HOUSE, S.N.PURAM P.O., KANJIKUZHU GRAMA PANCHAYAT WARD NO.5, CHERTHALA, ALAPPUZHA DIST. 5. THE NEW INDIA ASSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, IST FLOOR, EDATHIL BUILDINGS, THOPPUMPADY, KOCHI-6. ADV. SRI.R.KRISHNAKUMAR (CHERTHALA) FOR R4 SRI.M.RAJAGOPALAN FOR R5 SRI.RANJIT BABU FOR R5 SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/01/2009, ALONG WITH MACA NO. 1635 OF 2006 MACA NO. 1868 OF 2005 & MACA NO. 1978 OF 2006 THE COURT ON 20/01/2009 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. .................................................................... M.A.C.A. Nos.608, 1635 & 1978 of 2006 & 1868 of 2005 .................................................................... Dated this the 20th day of January, 2009. JUDGMENT Ramachandran Nair, J. The connected appeals, two filed by the Insurance Company and the other two filed by two claimants, for enhancement, though arise from different awards, pertain to the same accident involving a mini lorry, a motorcycle and a bicycle. While the cyclist succumbed to the injuries, the rider of the bike sustained some injuries, though not serious in nature. The Police charge-sheeted the driver of the mini lorry for offences punishable under Section 279 read with Sections 338 and 304A of the IPC. Noone has bothered to find out the fate of the criminal case. On going through the award, we find that no occurrence witness is examined to prove the way the accident happened. In other words, Police case is the sole basis in which driver of the mini lorry is found negligent and consequently award is passed against the insurer of that vehicle. We have heard counsel appearing for all the parties in the 2 appeals. 2. On going through the awards and after hearing the parties, we do not think the finding of negligence on the driver of the mini lorry alone is based on any tenable evidence. The Police case is just followed by the MACT because no contra evidence is adduced by the parties. The MACT should have atleast considered the fate of the criminal case, if it was over or otherwise, the evidence produced therein. We are of the view that in the absence of any occurrence witness, the finding of guilt on the driver of the mini lorry alone is not tenable because the accident occurred on a very wide National Highway at a place which is very straight in the north-south direction. The mini lorry and the motorbike were going in the opposite direction and probably the interference of the cycle affected the smooth traffic leading to the accident. Accident occurred past 9 O' clock in the night and it is not in evidence whether the cycle had a burning headlight or even a reflector. The two Insurance Companies make rival contentions, one alleging negligence on the driver of the mini lorry and the other against the rider of the motorbike. Since there is no direct 3 evidence about the accident and since both Insurance Companies are in the public sector, we feel the liability should be shared between them on the basis that the accident is contributed by the rider of the bike and the driver of the mini lorry equally. In fact, we feel the Insurance Company should have conducted an independent investigation and tried to prove how the accident really happened in such a wide road. In these circumstances and on equitable grounds, we feel actual liability should be shared equally by both the Insurance Companies namely, the Oriental Insurance Company and the New India Assurance Company. 3. In the appeal filed by the legal heirs of the deceased who was the cyclist, the main grievance is against fixation of monthly income at Rs.2,000/-. Counsel submitted that deceased was an experienced carpenter earning Rs.4,500/- a month. We feel for an experienced carpenter atleast an income of Rs.3,000/- per month should be fixed and after deducting one third, appellants in MACA No.608/2006 are entitled to compensation for loss of dependency by taking a net monthly income of Rs.2,000/-. This will entitle the appellants in that case for a compensation of Rs.3,64,000/- as against Rs.1,56,000/- 4 granted by the MACT. No other modification is called for with the award. The additional compensation granted by us will carry interest at 7.5% p.a. from date of application till date of payment. 4. So far as the claimant in MACA No.1978/2004 is concerned, he has undergone treatment for 11 days as an inpatient in a hospital. However, injury has not left any permanent disability in him. The total compensation awarded is Rs.22,000/-. We do not think there is any purpose in enhancing the compensation in this case because going by our finding above, 50% has to be disallowed on account of contributory negligence by the appellant. However, taking into account this also, we grant an additional compensation of Rs.10,000/- to the appellant which will also carry interest at 7.5% p.a. from date of application till date of payment. 5. The two appeals filed by the Oriental Insurance Company are disposed of declaring their liability at 50% of the awarded compensation with enhancement granted by us and with direction to the New India Assurance Company to meet 50% of the liability in both cases. However, the additional compensation granted to the appellant 5 in MACA No.1978/2006 is on condition that he will produce the driving licence valid as on date of accident before the MACT, failing which his appeal should be treated as dismissed. C.N.RAMACHANDRAN NAIR Judge C.K.ABDUL REHIM Judge pms