IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 MACA.No. 255 of 2003() ---------------------- OPMV.833/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANTS/PETITIONERS 1,3 & 4 --------------------------------------------- 1. MARY, W/O. FRANCIS, 2. PRINCY, D/O. LATE FRANCIS. 3. FENISH, S/O. LATE FRANCIS. ALL ARE RESIDING AT THAIKULANGARA HOUSE, P.O. KANNARA, THRISSUR. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.R.RAJA RAJA VARMA SMT.M.R.VALSA RESPONDENT(S): RESPONDENTS: --------------------------- 1. K. SAIDALAVY, S/O. KUNJU MOHAMMED, RESIDING AT KOKKALI HOUSE, KATTILATHAN, P.O. MANNARKKAD. 2. KOYAKUTTY, S/O. KUNJU KOYA THANGAL, RESIDING AT MUTHUKKATTUPARAMBIL, KALLADIKKKODE P.O., PALAKKAD. 3. THE NATIONAL INSURANCE COMPANY LIMITED, P.B.NO.40, BANK ROAD, CANNORE. ADV. SRI.E.M.JOSEPH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.255 of 2003 -------------------------------------- Dated this the 4th day of November, 2008. JUDGMENT Thomas P.Joseph, J. Appellants, wife and children of the deceased claimed Rs.4 lakhs as compensation under Section 166 of the Motor Vehicles Act (for short, ‘the Act’) for the death of the deceased in a motor accident on 21.3.1992. Tribunal found that the accident occurred due to the negligence of the deceased himself and rejected the claim under Section 166 of the Act. However, appellants were allowed to realize Rs.25,000/- for no fault liability under Section 140 of the Act. Appellants are aggrieved and hence, this appeal. 2. Heard counsel for the appellant and contesting respondent. 3. Following points are raised for decision:- I. Whether the accident was due to the negligence of the deceased? II. Quantum of compensation payable to the appellants. 4. Point No.I. Admitted facts of the case are as follows: Deceased, a Police Constable by occupation attached to the Puthukkad Police Station during the relevant time, was driving the department jeep bearing registration No.KER 3143 as part of his official duty, with PW2, another Police Constable travelling in it. The jeep hit a MACA No.255/2003 2 stationary lorry bearing registration No.KRC 3420 at about 1.30 a.m. Deceased sustained fatal injuries. According to the appellants, accident occurred solely due to the rashness and negligence of the driver of the stationary lorry as it was parked on the wrong side and that too, without switching on the park light. It is the further case of the appellants that at the place of accident, a lorry came from the opposite side overtaking another vehicle. The deceased tried to avoid the speeding lorry hitting the jeep by taking the jeep to the side of the road and in that process, it hit the stationary lorry which had no park lights put on. Thus, the driver of the stationary lorry was negligent. The allegation of negligence was contested by the contesting respondents. According to them, accident occurred due to the negligence of the deceased. Counsel for the appellant contended that there was no negligence on the part of the deceased. According to the learned counsel for contesting respondents, Tribunal is justified in finding that the accident occurred due to the negligence of the deceased. 5. ‘Negligence’ is that conduct which a reasonable and prudent man would avoid on the ground that it involves risk of injury to the life and/or property of another. 'Rashness' is the doing of an act in a reckless manner, unmindful of its consequence. In this case, PW2 who was concededly traveling in the jeep driven by the deceased has given evidence regarding the accident. According to him, when the jeep driven by the deceased in which he was traveling reached the place of occurrence a lorry came from the opposite side overtaking another lorry coming in the same direction and seeing the on coming MACA No.255/2003 3 lorry, deceased swerved the jeep to the left side and stopped it. By that time the jeep hit the stationary lorry. PW2 has given evidence that the offending lorry was parked on the wrong side. He has also stated that there was no signal light on the stationary lorry and that occasioned the jeep hitting that lorry. It is pertinent to note that the second respondent, driver of the stationary lorry remained ex parte before the Tribunal. In other words, he is not contesting the allegation of negligence on his part. Nor was the second respondent cited and examined as witness by the contesting respondent. Result is that regarding the accident, there is only the evidence of PW2. Tribunal rejected the evidence of PW2 for the reason that he had not told the Investigating Officer in the course of interrogation that the stationary lorry had no signal lights. Assuming so, that by itself is not a ground to disbelieve the evidence of PW2. We also note that it was not as if PW2 was giving a statement to the Investigating Officer voluntarily as to what had happened. Investigating Officer was interrogating PW2 and in answer to the questions put by the Investigating Officer, he was narrating the incident. It can happen that if the Investigating Officer had not questioned PW2 whether the stationary lorry had signal lights, he did not say that the stationary lorry had no signal lights. That aspect was not taken into account by the Tribunal. The glare of the headlight of the vehicles which came from the opposite side may have dazzled the eyes of the deceased, and as there was no signal lights for the offending lorry, the jeep hit that lorry in the attempt of the deceased swerving the jeep to avoid it hitting the lorry. Evidence would show that the offending lorry MACA No.255/2003 4 was parked on the wrong side without signal lights. That was a conduct which the second respondent should have avoided on the ground that it involved the risk of injury to the life and property of others. Therefore, we are inclined to think that there was negligence on the part of second respondent. Certainly there was negligence on the part of the deceased as well since he should have controlled the vehicle so that it did not hit the stationary vehicle. Considering all relevant aspects, we are inclined to think that the deceased as well as second respondent were negligent and we apportion the ratio of negligence between the deceased and second respondent as 60:40. Point No.I is answered accordingly. 5. Point No.II. Tribunal has not assessed the compensation payable to the deceased. Instead, appellants were allowed to realize Rs.25,000/- for no fault liability under Section 140 of the Act. Considering the facts and circumstances of the case, we do not think it necessary to remand the case for assessment of compensation as that exercise could be done here, with the evidence on record. 6. Deceased was a Police Constable aged about 37 years at the relevant time. According to the appellants, he had salary of Rs.1,900/- per month and produced Ext.A3 in proof of that. There is no reason why Ext.A3 should be discarded. At the same time, future prospects of promotion, pay revisions and enhancement of increments have also to be taken into account while fixing the contribution to the family. Deceased was maintaining a comparatively large family consisting of wife, two minor children and mother. MACA No.255/2003 5 Since he was aged only 37 years, he had future service for 18 years in the Police Department which normally would have brought better prospects for him had he been alive. Considering these aspects, we fix the monthly income of the deceased for the purpose of assessment of compensation as Rs.3,000/- and less one third for personal expenses, contribution to the family is fixed as Rs.2,000/-. Since the deceased was aged 37 years, multiplier to be taken is ‘17’. That brings the compensation for loss of dependency and contribution to Rs.4,08,000/- (2000x12x17). 7. Apart from the above, appellants are also entitled to get funeral expenses and transportation charges for taking the dead body from the hospital to their house. First appellant was aged 31 years at the time of accident. She lost the company of her husband in a comparatively young age. She is entitled to get compensation for loss of consortium. Appellants 2 and 3, minor children of deceased lost the fatherly affection and care and guidance. They are to be compensated for that. Though death of the deceased was instantaneous, appellants are entitled to get compensation for the pain and suffering undergone by him. Thus, compensation payable to the appellants is as below:- Loss of dependency and contribution Rs.4,08,000/- Funeral expenses Rs.2,000/- Transportation charges Rs.2,000/- Loss of consortium to the first appellant Rs.10,000/- MACA No.255/2003 6 Loss of love and affection and care guidance to appellants 2 and 3 Rs.10,000/- Pain and suffering undergone by the Deceased Rs.5,000/- Total Rs.4,37,000/- In view of our finding on point No.I, appellants are entitled to get only 40% of the said amount by way of compensation which comes to Rs.1,74,800/- and less Rs.25,000/- already awarded by the Tribunal, additional compensation payable to the appellants is Rs.1,49,800/- which is rounded at Rs.1,50,000/- which will carry interest at the rate of 7.5% per annum from the date of application till realization. Resultantly, this appeal is allowed in part. Over and above the compensation awarded by the Tribunal, appellants are allowed to realize Rs.1,50,000/- (Rupees One lakh and fifty thousand only) by way of additional compensation with 7.5% interest per annum from the date of application till realization from respondents 1 to 3, jointly and severally. Third respondent being the insurer of the offending vehicle is directed to deposit that amount in the Tribunal. On such deposit, one third of the amount will go to the first appellant and the rest of the amount will be shared by appellants 2 and 3 equally. First appellant is permitted to withdraw half of her share and the rest will be deposited in a nationalized bank in her name for a period of two years with liberty to her to MACA No.255/2003 7 withdraw the monthly interest. Shares of appellants 2 and 3 will be deposited in their respective names in a nationalized bank in fixed deposit until they attained majority. First appellant is permitted to withdraw the interest that accrues in the deposit of appellants 2 and 3 to be utilized for their welfare. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks MACA No.255/2003 8 J.B.KOSHY & THOMASP.JOSEPH, JJ. M.A.C.A.No.255 of 2003 JUDGMENT 4th December, 2008