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 25TH MAY 2010 / 4TH JYAISHTA 1932 MACA.No. 1215 of 2007() ----------------------- OPMV.752/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT/6TH RESPONDENT -------------------------------------- THE NATIONAL INSURANCE COMPANY LTD., POLLACHI. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): PETITIONERS 1 TO 3 & RESPONDENTS 1,2,3,4,5,7 & 8 --------------------------------------------------------------- 1. NARAYANAN, S/O PONNUCHAMY, 50/309 KAMRAJ NAGAR, OZHALAPATHY VILLAGE, CHITTUR TALUK. 2. DAMAYANTHI, W/O NARAYANAN, -DO- 3. SANTHI, MINOR,D/O NARAYANAN REP. BY THE NEXT FRIEND AND GUARDIAN NARAYANAN THE FIRST RESPONDENT. 4. MR.SUNU, C/O RAMAKRISHNAN, PICHANUR, MADUKKARAI, COIMBATORE 105. 5. MR.FRANCIC XAVIER, S/O PUSHPARAJ, C/O RAMAKRISHNA, PICHANUR, MADUKKARA, COIMBATORE 105. 6. THE NEW INDIA ASSURANCE COMPANY LTD., 28 GANGA GOUNDER STREET, COIMBATORE, TAMIL NADU. 7. SANGARAJ, S/O SUBRAMANIAN, 5/35, MUTHUGOUNDANUR, SOKLOONUR, POLLACHI TALUK. 8. MR.SATHEESH, S/O VELAYUDHAN, KALLIYAMPARA, PARAISAKAL POST, CHITTUR TALUK, PALAKKAD. 9. THE MANAGING DIRECTOR, TNSTC, DIVISION I, COIMBATORE. 10. S.SENTHILKUMAR, S/O SIKAMANI, 2/17, AYYAR LAYOUT, SINGANELLUR POST. ADV. SRI.P.RAVINDRAN, SENIOR ADVOCATE FOR R9 SRI.RAJESH SIVARAMANKUTTY FOR R8 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 1215 of 2007 ------------------------------------------------------ Dated: MAY 25, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the 6th respondent Insurance Company in OP(MV) 752/1999 on the file of the Motor Accidents Claims Tribunal, Palakkad, challenges the judgment and award of the Tribunal dated August 30, 2006 awarding a compensation of Rs.1,69,400/- for the loss caused to the claimants on account of the death of Satheesh Babu @ Satheesh Kumar, aged 15, in a motor accident. 2. The facts leading to this appeal in brief are these: On February 13, 1999 at about 1.30 p.m. the deceased was travelling as a pillion rider on TVS 50 moped bearing registration No.TN 41.C/4495 ridden by the 5th respondent along the Chavadi - Velanthavalam road. While the 5th respondent was trying to overtake a bus bearing registration No. CTC 48 which was proceeding in front, another motorcycle bearing registration No. TDC 3883 ridden by the 2nd respondent came at a high speed and dashed against the moped of the claimant. The deceased was thrown off to the road and the front right wheel of the bus ran over him causing serious injuries to him. He succumbed to the injuries while undergoing treatment in the M.A.C.A. 1215 of 2007 2 hospital. The claimants are the parents and the sister of the deceased. According to the claimants the accident occurred due to the negligence of respondent No.2/the rider of the motorcycle, respondent No.5/the rider of the moped and respondent No.8/the driver of the bus. Respondent No.1 as the owner, respondent No.2 as the rider and respondent No.3 as the insurer of the motorcycle bearing registration No. TDC 3883 and respondent No.4 as the owner, respondent No.5 as the rider and respondent No.6 as the insurer of TVS 50 moped bearing registration No.TN 41.C/4495 and respondent No.7 as the owner and respondent No.8 as the driver of the bus are jointly and severally liable to pay compensation to the claimant. 3. Respondents 1 and 2, the owner and the rider of the offending motorcycle bearing registration No. TDC 3883 remained absent before the Tribunal. The 3rd respondent, insurer of the offending motorcycle, filed a written statement admitting the policy, but contending that the accident occurred due to the negligence on the part of the 5th respondent, rider of the moped. Respondents 4 and 5, the owner and the rider of the TVS 50 moped bearing registration No.TN 41.C/4495 remained absent before the Tribunal. The 6th respondent, insurer of the said vehicle, filed a written statement admitting the policy, and further contending that the accident occurred M.A.C.A. 1215 of 2007 3 due to the negligence on the part of the rider of the motorcycle and the driver of the bus. Respondents 7 and 8 filed a joint written statement admitting the accident and contending that the accident occurred due to the negligence on the part of the rider of the moped. 4. PWs.1 and 2 were examined and Exts.A1 to A5 were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting respondents. On an appreciation of evidence the Tribunal awarded a compensation of Rs.1,69,400/- against respondents 4 to 6. The 6th respondent, insurer of the offending moped, has now come up in appeal challenging the finding of the Tribunal regarding the negligence as well as the quantum of compensation. The appellant has also denied the policy of the offending vehicle. 5. Heard the counsel for the appellant and the respondents. 6. The accident is not disputed. The appellant has challenged the finding of the Tribunal regarding the negligence as well as assessing the compensation. The appellant has also contended that the offending moped was not covered by a valid insurance policy at the time of the accident. Therefore, the following points arise for consideration:- I. Whether the finding of the Tribunal that the accident M.A.C.A. 1215 of 2007 4 occurred due to the negligence on the part of the 5th respondent and making respondents 4 to 6 liable can be sustained? II. Whether the compensation awarded is excessive? III. Whether the finding of the Tribunal that the offending vehicle was covered by a valid insurance policy at the time of the accident can be sustained? Points I to III 7. The counsel for the appellant argued that the Tribunal went wrong in finding that the accident occurred due to negligence on the part of respondent No.5, rider of the moped, and that actually the accident occurred due to the negligence on the part of the rider of the motorcycle and the driver of the bus. There is no substance in the above contention. The claimants examined PWs.1 and 2 who are not eye-witnesses to the incident. Ext.A1(a) translated copy of the FIR shows that the rider of the moped negligently overtook the bus which was proceeding in front and dashed against the motorcycle and that the deceased was carrying a tyre while travelling in the said moped. Therefore the Tribunal is perfectly justified in holding that the accident occurred due to the negligence on the part of the rider of the said M.A.C.A. 1215 of 2007 5 vehicle, especially in view of the fact that no other evidence is available in the record to prove otherwise. Therefore we confirm the finding of the Tribunal that the accident occurred due to the negligence on the part of the 5th respondent. The Tribunal is also justified in making respondents 4 to 6 liable to pay compensation. 8. The learned counsel for the appellant argued that the offending moped was not covered by a valid insurance policy at the time of the accident which is evident from the copy of the policy produced, Ext.A4. We are unable to agree. The appellant/6th respondent did not raise such a contention before the Tribunal. On the other hand, the appellant/6th respondent in its written statement has admitted the policy. Therefore the Tribunal is perfectly justified in holding that the offending vehicle was covered by a valid insurance policy at the time of the accident and that the 6th respondent is bound to indemnify the 4th respondent, the owner of the moped. 9. It was also contended by the appellant that the compensation awarded by the Tribunal is excessive. The deceased was a boy aged 15 at the time of the accident. The Tribunal took his notional income as Rs.1200/- and after deducting 1/3rd for his personal expenses and adopting a multiplier of 15 as shown in the Second Schedule to the Motor Vehicles Act, awarded Rs.1,44,000/- for the loss of dependency. M.A.C.A. 1215 of 2007 6 The Tribunal also awarded Rs.15,000/- for loss of love and affection, Rs.5000/- for pain and suffering and Rs.5000/- towards transportation expenses. Taking into account the age of the deceased and the age of the claimants, we feel that the compensation awarded by the Tribunal is just and reasonable and not excessive. For all these reasons we find no merit in the appeal and the same has to be dismissed. In the result the appeal is dismissed. The parties shall bear their own costs. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-