IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 MACA.No. 1925 of 2008() ----------------------- OPMV.614/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): 3RD RESPONDENT: ------------------------------------------------------ THE ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE, METRO PALACE, GROUND FLOOR, NORTH RAILWAY STATION ROAD, ERNAKULAM. REPRESENTED BY ITS DULY AHTORISED OFFICER. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): RESPONDENTS 1,2,4 & 5 &PETITIONERS 1 & 2: ------------------------------------------------------------------------------------------------ 1. SREENIVASAN, S/O.VEDACHALAM, ALLAPURAM NAGA LINGRESWAR COIL, STREET NO.48, THURUPADY PO., VELLOOR TALUK.TAMILNADU. 2. A.K.SURESH, H.NO.26, 1ST EAST CROSS ROAD, GANDHINAGAR, VELLOOR TALUK, VELLOOR, TAMIL NADU. 3. KARUNAKARAN NAIR, CHIRAPURATHUPUTHENPURYIL HOUSE, THALAYOLAPARAMBU PO., VADAYAR VILLAGE, KOTTAYAM DISTRICT. 4. INDIRA DEVI, W/O.KARUNAKARAN NAIR,CHIRAPURATHUPUTHENPURYIL HOUSE, THALAYOLAPARAMBU P.O,VADAYAR VILLAGE, KOTTAYAM DISTRICT. 5. AMBILY RAJESH KUMAR, W/O.LATE RAJESH KUMAR, CHIRAPURATHUPUTHENPURYIL HOUSE,THALAYOLAPARAMBU PO., VADAYAR VILLAGE, KOTTAYAM DISTRICT. 6. AJAI KRISHNAN, S/O.LATE RAJESH KUMAR, REPRESENTED BY AMBILY RAJESH KUMAR,CHIRAPURATHUPUTHEN PURYIL HOUSE, THALAYOLAPARAMBU PO., VADAYAR VILLAGE, KOTTAYAM DISTRICT. R5 & R6 BY ADVS. SRI.T.K.KOSHY, SRI.T.A.RAJAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A. No. 1925 of 2008 =-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 30th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act the Insurance Company, who is third respondent in O.P.(MV) No. 614 of 2004 of the Motor Accidents Claims Tribunal, Kottayam challenges the judgment and award of the Tribunal dated February 25, 2008 awarding a compensation of Rs.5,73,932/- to the claimants for the loss caused to them on account of the death of Rajeshkumar in a motor accident. 2. The facts leading to this appeal, in brief, are these:- On December 23, 2003 at about 9.30 p.m. while deceased Rajeshkumar was riding a scooter bearing registration No.KL-7P-9772 along the Thalappara – Ernakulam road and when he reached at Mittayikunnu, a lorry bearing registration No. TN-23F 3351, driven by the first respondent, came at a high speed and dashed against the MACA 1925/08 2 scooter of the deceased. He sustained very serious injuries and he succumbed to the injuries sustained on the way to the hospital at about 10.45 p.m. on the same day. According to the claimants, the accident occurred due to the rash and negligent driving of the offending vehicle by the first respondent. The claimants are the wife and minor child of the deceased and respondents 4 and 5 in the original petition are the parents of the deceased. The claimants claimed a compensation of Rs.7,50,000/-. 3. Respondents 1 and 2 driver and owner of the offending vehicle respectively remained absent and were set ex parte by the Tribunal. The third respondent insurer of the offending vehicle filed a written statement, admitting the policy and contending that the accident occurred due to the negligence of the deceased. Respondents 4 and 5 in the original petition who are the parents of the deceased filed a joint written statement before the Tribunal that they were depending upon the income of the deceased. 4. Exts. A1 to A9 were marked on the side of the MACA 1925/08 3 claimant before the Tribunal.Ext.B1 was marked on the side of the appellant Insurance Company before the Tribunal. On an appreciation of the evidence, the Tribunal awarded a compensation of Rs.5,73,932/- with interest at the rate of 7% p.a. from the date of petition till realization. The third respondent Insurance Company has come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard learned counsel for the appellant and learned counsel for respondents 5 and 6/ the claimants. 6. The accident is not disputed. The learned counsel for the appellant Insurance Company argued that accident occurred due to the negligence on the part of the deceased and that the compensation awarded is excessive. Therefore, the following points arise for consideration in this appeal :- 1) Whether the finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent, driver of the offending lorry, can be sustained? MACA 1925/08 4 2) Whether the compensation awarded by the Tribunal is excessive? Point Nos.1 and 2 :- 7. The Tribunal awarded a compensation of Rs.5,73,932/-. Break up of the compensation awarded is as under:- Loss of dependency : Rs.4,75,932/- Transport to hospital : Rs.3,000/- Funeral expenses : Rs.5,000/- Pain and suffering : Rs.10,000/- Loss of estate : Rs.5,000/- Loss of love and affection : Rs.25,000/- Loss of expectation : Rs.20,000/- Loss of consortium : Rs.30,000/- ------------------ Total : Rs.5,73,932/- ======== 8. The Tribunal took the monthly income of the deceased as Rs.3,500/- and after deducting 1/3rd for his personal expenses, his contribution to the family was taken as Rs.2,333/-.The Tribunal took the multiplier of 17 and awarded a compensation of Rs.4,75,932/- for the disability caused. According to the claimants, the deceased was working as a Diesel Mechanic in an Automobile Workshop and used to earn MACA 1925/08 5 Rs.5,250/- per month. Ext.A6 is the certificate issued by the said institution. The Tribunal is perfectly justified in fixing his monthly income as Rs.2,500/-, as no witness was examined to prove Ext.A6. In the light of the principles laid down in Sarala Varma V. Delhi Transport Corporation (AIR 2009 SC 3104) and in U.P.State Road Transport Corporation V. Trilok Chandra (1996(2) KLT 218), the Tribunal is perfectly justified in deducting 1/3rd for the personal expenses of the deceased and taking the remaining Rs,.2333/- per month as the monthly contribution of the deceased to his family. Thus, we are of the view that the Tribunal is perfectly justified in awarding a compensation of Rs.4,75,932/- for the loss of dependency. 9. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. That being so, we hold that the compensation awarded by the Tribunal is not excessive. 10. The next question for consideration is whether the finding of the Tribunal that the accident occurred due to the negligence on the part of the second respondent can be MACA 1925/08 6 sustained. In other words, the question is whether there was any negligence on the part of the deceased. It is proved by Ext.A2 copy of the police charge in the criminal case that the case was charged against the driver of the offending lorry. No contra-evidence was adduced on the side of the appellant before the Tribunal to show that there was any negligence on the part of the deceased. That being so, the Tribunal is perfectly justified in holding that the accident occurred due to the negligence on the part of the first respondent driver of the offending lorry and that there was no negligence on the part of the deceased. No other point is argued before us. 11. For all these reasons, we find that there is no merit in the appeal and the same is liable to be dismissed. In the result, the appeal is dismissed. The parties shall bear their own cost. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn