IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 MACA.No. 2049 of 2005 OPMV.219/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANTS/PETITIONERS 1. VALSAMMA, AGED 40 YEARS, D/O.LATE GOPALAKRISHNAN, SINI BHAVAN, VAZHAVATTA P.O. VYTHIRI TALUK. 2. SMITHA, AGED 19 YEARS, D/O.LATE GOPALAKRISHNAN, SINI BHAVAN, VAZHAVATTA P.O. VYTHIRI TALUK. 3. SINI, AGED 18 YEARS, D/O.LATE GOPALAKRISHNAN, SINI BHAVAN, VAZHAVATTAP.O., VYTHIRI TALUK. 4. LAKSHMI AGED 60 YEARS, W/O.LATE GOPALAKRISHNAN, SINI BHAVAN, VAZHAVATTA P.O. VYTHIRI TALUK. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENTS / RESPONDETS 1. G.MANJUNATH, AGED 28 YEARS, S/O.GOVINDAPPA, HOUSE NO. 2975A, MANJUNATH NAGAR, NAGASANTHARA P.O. BANGALORE 73, KARNATAKA STATE. DRIVER OF THE MINI LORRY NO.KA-20/4648, DL.NO. 9380/1994. 2. G.SREENIVAS, AGED NOT KNOWN , S/O.GOVINDAPPA, HOUSE NO. 2975A, MANJUNATH NAGAR, NAGASANTHARA P.O. BANGALORE 73, KARNATAKA STATE, OWNER OF THE MINI LORRY, KA-20/4648. 3. THE ORIENTAL INSURANCE COMPANY DO 10, NO. 213/217, 2ND MAIN, 4TH CROSS CHEMRAJPET, BANGALORE 18, (LOCAL BRANCH OF THE INSURER KOZHIKODE BRANCH, G.H.ROAD, SEEMA BUILDING KOZHIKODE, POLICE NO.1 3021/2001, VALID UPTO 12.2.2002. ADV. SRI.M.P.ASHOK KUMAR FOR R1 SRI.P.V.JYOTHI PRASAD FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2049 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of November 2010 JUDGMENT Basheer, J. Appellants are the legal representatives of the deceased victim of a road traffic accident that occurred on March 13, 2001. The deceased was riding on a two wheeler, when a mini lorry coming from the opposite direction dashed against it and knocked him down resulting in fatal injuries to him. 2. According to the claimants, the deceased was a black smith by profession and was earning Rs.6,000/- per month. The wife, two children and the mother of the deceased claimed a total sum of Rs.6,00,000/- towards compensation from the owner, driver and insurer of the mini lorry. They alleged that the accident occurred due to the rash and negligent driving by the driver of the said mini lorry. 3. The insurance company, however, took up the contention that the deceased had also contributed to the accident in no small measure. 4. The widow of the deceased was examined before the Tribunal as PW1 and an eye witness to the occurrence was examined as PW2. Exts.A1 to A8 were marked on the side of the claimants. The Tribunal found that the claimants would be entitled to get a total sum of Rs.4,36,500 as compensation. The monthly income of the deceased was taken as Rs.4,000/- and a multiplier of 13 was applied for the purpose of calculating the loss of dependency. 5. However, the Tribunal held that the deceased had also contributed to the accident to the extent of 50%. For this purpose, the Tribunal relied on the M.A.C.A.No.2049 OF 2005 :: 2 :: scene mahazar prepared by the police in the course of investigation of the crime registered against the driver of the mini lorry. While discussing the above aspect, the Tribunal concluded that the accident occurred due to the rash and negligent driving of the two vehicles by both drivers. There is absolutely no discussion of any kind whatsoever in this regard. The Tribunal entered the above finding by one sweeping sentence which reads thus: “As the accident was due to the rash and negligent driving of the vehicles by the first respondent and the deceased they are equally liable”. 6. Significantly, the Tribunal did not even bother to look at the oral testimony of PW2 who testified before the court that the accident had occurred solely due to the rash and negligent driving of the mini lorry by its driver. The evidence of PW2 stood uncontroverted. More importantly, the driver of the mini lorry never bothered to step into the box and deny the charge against him. It may also be remembered that the police had registered a case against the driver of the mini lorry alone. The evidence of PW2 would show that the two wheeler was coming from west to east and the accident occurred on the northern side of the road. This evidence given by PW2 was never controverted. 7. Keeping in view the above facts and circumstances of the case, we have no hesitation to hold that the Tribunal was not justified in holding that the deceased had also contributed to the accident to the extent of 50%. Therefore, the said finding is set aside. It is held that the accident occurred due to the sole negligence of respondent No.1 herein. In that view of the matter, respondent No.3/insurance company shall be liable to pay the entire compensation to the appellants. M.A.C.A.No.2049 OF 2005 :: 3 :: 8. Though learned counsel for the appellant submitted that the compensation awarded by the Tribunal under various heads is not adequate or reasonable, we do not find any reason to interfere with the quantum fixed by the Tribunal. Award is modified to the above extent and the appeal is allowed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes