IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 MACA.No. 1244 of 2007() ----------------------- OPMV.573/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT/THIRD RESPONDENT ---------------------------------------- THE NATIONAL INSURANCE COMPANY LTD., WILLINGTON ISLAND DIVISION, PB NO.564, MARAE ROAD, WILLINGTON ISLAND, ERNAKULAM REP BY ITS DIVISIONAL MANAGER. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): PETITIONERS 1 TO 3 AND RESPONDENT 1 AND 2 -------------------------------------------------------- 1. SANTHA T.R., PADINJARE VELIKKAKATHU VEEDU, VI/151 SOUTH ARYAD, AVALOOKUNNU POST, ALAPPUZHA. 2. PRAVEEN KUMAR.V., (MINOR), S/O.LATE UNNIKRISHNAN NAIR RESIDING AT PADINJARE VELIKKAKATHU VEEDU, VI/151 SOUTH ARYAD, AVALOOKUNNU POST, ALAPPUZHA REP.BY THE FIRST RESPONDENT HEREIN THE MOTHER. 3. MAYADEVI.S.(MINOR), D/O.LATE UNNIKRISHNAN NAIR RESIDING AT PADINJARE VELIKKAKATHU VEEDU, VI 151 SOUTH ARYAD, AVALOOKUNNU POST, ALAPPUZHA REP.BY THE FIRST RESPONDENT HEREIN THE MOTHER. 4. KANAKAMMA.B., RESIDING AT PADINJARE VELIKKAKATHU VEEDU, VI/151, SOUTH ARYAD, AVALOOKUNNU POST, ALAPPUZHA (DIED PENDING TRIAL OF THE OP(MV) AND RESPONDENTS 1 TO 3 WERE DECLARED AS THE SOLE CLAIMANTS/LEGAL HEIRS). 5. DEPE GLOBAL SHIPPING AGENCIES PVT.LTD., WILLINGTON ISLAND, KOCHI-3 REP BY ITS MANAGER. ADV. SRI.S.SANAL KUMAR FOR R1 TO 3 SMT.BHAVANA VELAYUDHAN FOR R1 TO 3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. NO: 1244 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd Day of August, 2009. JUDGMENT K. M. Joseph J. The appellant is the 3rd respondent in a petition filed under Section 166 of Motor Vehicle Act. The respondents 1 to 4 filed a claim petition on account of the death of the husband of the first respondent and father of respondents 2 and 3 and son of the 4th respondent. The Tribunal has awarded a total sum of Rs.5,92,000/- and costs. 2. Heard the learned counsel for the appellant and the learned counsel for respondents 1 to 4. 3. Learned counsel for the appellant raised two issues before us. Firstly, he would contend that the finding of the Tribunal attributing negligence to the driver/ second respondent is erroneous. He points out that the vehicle was found on 3 m west from the eastern M.A.C.A . NO: 1244 OF 2007 :2: end of the road. He would contend that the maruti car, which was driven by the deceased, was travelling from north to south. The lorry which was driven by the 2nd respondent was coming from the opposite side. He further contended that the Tribunal should have found that it was the maruti car, which was driven negligently. 4. The discussion in this respect vide issue No.1 in the Award read as follows: “It is contended by the third respondent that the accident occurred not due to the rash and negligent driving of the lorry by the second respondent but it occurred solely due to the negligence of the deceased Unnikrishnan Nair who was driving his car. Ext.A1 is the copy of FIR, Ext. A3 is the copy of the scene mahazar, Exts.A6 and A7 are the copies of the AMVI reports regarding the lorry and the car involved in the accident and Ext.A2 is the copy of the charge sheet in crime No.250/09 of Kayamkulam police station, the crime registered regarding the occurrence. Ext.A16 is the copy of the driving license of the deceased Unnikrishnan. In these circumstances, in the absence of any contra evidence, I find that the accident occurred due to the rash and negligent driving of the lorry by the second respondent.” 5. The Tribunal has of course found shelter in the fact that the charge sheet was filed in the crime registered against the second respondent. It is not the law that it should be established beyond any M.A.C.A . NO: 1244 OF 2007 :3: doubt that the negligence is as alleged by the claimant. It is a summary proceeding. Therefore, we reject the contention raised by the appellant in this regard. 6. The Tribunal has awarded a sum of Rs.5,28,000/- towards loss of dependency. The deceased was aged 52 years and he was working as Basketball coach in the Kerala State Sports Council. As on the date of incident, he was 52 years of age. The deceased would have retired at the age of 55 years. It is complained that the multiplier was taken as 11. But the same multiplicand is taken for the entire period of 11 years. The Tribunal has taken Rs.4,000/- as multiplicand for the entire period of 11 years. The learned counsel would contend that the deceased would have continued to work with the Sports Council for 3 years more. Going by Ext.A19 Certificate income is shown as Rs.6,699/- and if 1/3 rd is deducted it would be Rs.4,466/-. It is pointed out that after the retirement the income could not have been fixed at Rs.4,000/- for the entire period of 8 years. It is pointed out that one should not loose sight of the fact that legal representatives would get family pension. M.A.C.A . NO: 1244 OF 2007 :4: 7. Per contra, learned counsel for respondents 1 to 4 supported the award. She points out that in fact the salary certificate would show that the actual total emoluments of the deceased is Rs.9,729.47. From the said amount a total amount of Rs.3,030/- was deducted to arrive at Rs.6,699/- as the net salary. When we went through the contents, under the head recovery, we find that there was a deduction of Rs.1,500/- towards GPF subscription and Rs.375/- towards KSC chitty. If that is so, the Tribunal should have also taken into account of Rs.1,500/- and Rs.375/-, an aggregate of Rs.1,875/- in calculating the income of the deceased, till he retired. On that basis, the income of the deceased for the period up to his retirement would be Rs.8,574/-. From the same, 1/3 has to be deducted. For the period, after retirement we would feel that having regarding to the fact necessarily the respondents would be getting family pension, we can take Rs.4,000/- as the income. After deduction and applying the multiplier of 8, the amount will be Rs.2,56,000/- Thus the respondents would be entitled to realise a sum of Rs.4,61,776/- (round of to Rs.4,62,000/-). M.A.C.A . NO: 1244 OF 2007 :5: Accordingly the appeal is allowed in part and we modify the award and respondents 1 to 4 are entitled to realise a sum of Rs.4,62,000/- along with interest at 7.5% from the date of petition till the date of realisation. The amount already awarded by the Tribunal will also bear interest at the rate of 7.5% in place of 6% from the date of petition till the date of realisation. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/