IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 MACA.No. 1369 of 2008 --------------------------------- O.P(M.V).NO.718/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR. .................... APPELLANT/ RESPONDENT NO.3: ------------------------------------------------- NEW INDIA ASSURANCE CO.LTD., ANGAMALI BRANCH, ANGAMALI P.O. BY ADV. SRI.KKM.SHERIF, ADV. SRI.A.A.ZIYAD RAHMAN. RESPONDENTS/ PETITIONERS/ RESPONDENT NOS.1 AND 2: --------------------------------------------------------------------------------------- 1. SUBHADRA VELAYUDHAN, W/O.LATE E.K.VELAYUDHAN, EDAKKULATH HOUSE, MANJUMMELKARA, ELOOR VILLAGE, MANJUMMEL P.O., PARAVUR TALUK. 2. UMA VELAYUDHAN, D/O.LATE E.K.VELAYUDHAN, EDAKKULATH HOUSE, MANJUMMELKARA, ELOOR VILLAGE, MANJUMMEL P.O., PARAVUR TALUK. 3. UNNI VELAYUDHAN, S/O.LATE E.K.VELAYUDHAN, EDAKKULATH HOUSE, MANJUMMELKARA, ELOOR VILLAGE, MANJUMMEL P.O, PARAVUR TALUK. 4. RAJAN.C.K., S/O.KOCHUKUTTAN KUMARAN, CHUNDANTHURUTHIL, POIKATTUSSERY KARA, CHENGAMANDU P.O., ALUVA TALUK. 5. JYOTHI RAMACHANDRAN, SHANTHI BHAVAN, VAPPALASSERY KARA, CHENGAMANADU PO., ALUVA TALUK. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.A.C.A.No.1369 OF 2008 ------------------------------------- Dated 3rd July, 2008 JUDGMENT Koshy,J . This appeal was filed by the insurance company against the award of the Motor Accidents Claims Tribunal in O.P.(M.V)No.718/2003. A man aged 54 years sustained fatal injuries in an accident and succumbed to the injuries. His wife and two children applied for compensation of Rs.5,00,000/=. The Tribunal calculated a compensation of Rs.3,60,830/=, but, found that the deceased was negligent by 10% and, therefore, directed the insurance company which insured the offending vehicle to deposit Rs.3,24,747/=. The appellant insurance company disputes the same contending that the Tribunal ought to have found that the accident occurred due to the negligence of the victim of the accident itself and not of the driver of the vehicle insured by the appellant insurance company. Secondly it is contended that compensation awarded is on high side. 2. With regard to the first contention of contributory negligence, the Tribunal considered the evidence in this case. Deceased was a pillion rider in the motor cycle bearing Reg.No.KL 7/J-8420. MACA.1369/2008 2 Ext.A1 is the certified copy of the F.I.R which points out negligence on the part of the driver of the vehicle insured by the appellant insurance company. While the deceased was a pillion rider, the lorry hit the motor cycle and the accident occurred. The driver of the lorry was charge sheeted under sections 279,334 and 304-A of the Indian Penal Code. Ext.B2 produced by the appellant itself shows that the contention of the appellant that from Ext.B3 scene mahazar it can be seen that the accident occurred at a place on the wrong side of the motor cycle is not correct. A scene mahazar will not show the exact place of accident. When a big vehicle like lorry hit, the motor cycle would be thrown away. The Scene mahazar taken after the accident was considering the position of the vehicle at the time when mahazar was taken. In the preliminary investigation police found that the accident occurred due to the negligence of the driver of the lorry. Both sides relied only on documentary evidence and allowed the Tribunal to decide the matter on the basis of the evidence. Since the driver of the lorry was charge sheeted, considering the nature of the vehicle, charge sheet and other materials produced, Tribunal came to the conclusion that lorry driver was mainly negligent. However, 10% negligence was attributed to the deceased. We see no ground to interfere with the above finding on the basis of the evidence in this case. MACA.1369/2008 3 3. With regard to the compensation, it is submitted that compensation was granted taking 11 as the multiplier. The deceased was aged 54 at the time of the accident. His retirement age is 60. But, taking guidance from the second schedule, 11 was taken as the multiplier. The Hon'ble Supreme Court in Smt.Supe Deiand others v. M/s.National Insurance Company Ltd. and another (JT 2002 (Suppl.1) SC 451), held that the second schedule of the Motor Vehicles Act is framed for the purpose of awarding compensation under section 163-A, but, it serves as a guideline for determination of compensation under section 166 of the Motor Vehicles Act also. Apart from the above, it can be seen that compensation was calculated only on the basis of the income of the deceased at the time of the accident and Rs.3,660/= was taken as his income and after deducting one third for personal expenses, balance was taken as the multiplicand. Future prospects was not considered in assessing the income. Being a Postmaster, he will be entitled to the benefits of various wage revisions apart from the normal increments and grade promotions. He would have been continued in service for nine years and his salary would have been more than the double and the retiral benefits and pension will be calculated on the basis of the last drawn wages. After retirement, he can take up some other business also. Considering all MACA.1369/2008 4 these facts taking 11 as the multiplier needs no interference as multiplicand adopted was very low. Considering the total amount awarded as compensation, we are of the view that no grounds are made out for interference in the award. The appeal is dismissed. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks