IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 MACA.No. 3000 of 2008 & Cross Objection No. 52 of 2009. ----------------------- OPMV.1137/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): RESPONDENT NO.3:- ----------------------------- THE NEW INDIA ASSURANCE COMPANY LTD, BRANCH OFFICE, 66.C NORTH CAR STREET, THIRUCHENGODEU-637 211 REPRESENTED BY IT'S MANAGER. BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN RESPONDENT(S): PETITIONERS 2 TO 4 --------------------------------- 1. PUSHPAKUMARI, W/O.PRABHAKARAN, DEVI NILAYAM, KOLLAMPOTTA, VADAVANNUR.P.O, VADAVANNUR, CHITTUR, TALUK, PALAKKAD DISTRICT. 2. CHANDRALEKHA, W/O.MOHANAN, DEVI NILAYAM KOLLAMPOTTA, VADAVANNUR.P.O, VADAVANNUR, CHITTUR TALUK, PALAKKAD DISTRICT. 3. BINDULEKHA, W/O GOVINDAN KUTTY, DEVI NILAYAM, KOLLAMPOTTA, VADAVANNUR.P.O,VADAVANNUR, CHITTUR TALUK, PALAKKAD DISTRICT. 4. M.MUTHUSWAMY, S/O.KALIANNA GOUNDER, KARATTANKADU, SIRUMOLASI.P.O,TIRUCHENGODU, TAMIL NADU. 5. PONGIANNAN, S/O.SENGODA GOUNDER, SAMUTHRA PALAYAM, KUMARA PALAYAM, TAMIL NADU. ADV. SRI.BINOY VASUDEVAN FOR R1 TO R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 3000 of 2008 & Cross Objection No. 52 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 24th day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the third respondent, Insurance Company, in O.P.(MV) No.1137 of 2000 of Motor Accidents Claims Tribunal, Palakkad challenges the judgment and award of the Tribunal dated February 1, 2008 awarding a compensation of Rs.4,05,500/- for the loss caused to the claimants on account of the death of Vasudevan Pillai in a motor accident. The claimants in the O.P. have filed a cross objection, claiming enhancement of the compensation awarded by the Tribunal. 2. The facts leading to this appeal, in brief, are these:- Deceased Vasudevan Pillai was aged 56 at the time of the accident and was working as a Security Officer MACA 3000/2008 2 in ACC Cement Factory, Madukkarai, Tamil Nadu and was earning Rs.5,560/- as salary. As he was a retired Military Personal, he was also getting Rs.3,000/- as Military pension. On January 13, 1999 at about 4.15 p.m. Vasudevan Pillai was riding his moped bearing registration No. MP-26/G- 4934 along Coimbatore - Palakkad public road. When he reached near Quarry Bus Stop, he was knocked down by a lorry bearing registration No. TAS/7373. He sustained very serious injuries and he succumbed to the injuries sustained, while undergoing treatment in the hospital. The claimants are his wife and major married daughters. According to them, the accident occurred due to the rash and negligent driving of the offending lorry by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimants. Claimants claimed a compensation of Rs.5,56,000/-. The first claimant, wife of the deceased, died subsequently. Remaining claimants are her legal heirs. MACA 3000/2008 3 3. Respondents 1 and 2, the owner and driver of the offending lorry, remained absent and were set ex parte by the Tribunal. The third respondent, the insurer of the offending lorry, filed a written statement admitting the policy, but contending that the accident occurred due to the negligence on the part of the deceased. 4. PWs. 1 and 2 were examined and Exts.A1 to A6 were marked on the side of the claimants before the Tribunal. Ext.B1 was marked on th side of the contesting third respondent. The Tribunal, on an appreciation of evidence, awarded a compensation of Rs. 4,05,500/- with interest at the rate of 7.5 % p.a. from the date of petition till realization and cost of Rs.1,000/-. The third respondent, Insurance Company, has now come up in appeal challenging the finding of the Tribunal that the accident occurred due to the negligence on the part of the second respondent and also the finding of the Tribunal regarding the income of the deceased as Rs.3,000/- per month. The claimants have filed a cross objection for enhancement of the compensation MACA 3000/2008 4 amount awarded. 5. Heard the counsel for the appellant/Insurance Company and the counsel for the cross objectors/claimants. 6. The accident is not disputed. The third respondent,Insurance Company, disputed that the accident occurred due to the negligence on the part of the second respondent. The cross objectors sought enhancement of the compensation awarded by the Tribunal. Therefore, the following points arise for consideration in this appeal and in the cross objection :- 1) Whether the finding of the Tribunal that the accident occurred due to the negligence on the part of the second respondent, driver of the offending lorry, can be sustained ? 2) Whether the Tribunal is right in fixing the net monthly income of the deceased as Rs.3,000/- per month? 3) Whether the claimants are entitled to any enhanced compensation? 7. The Tribunal found that the accident occurred due to negligence on the part of the driver of the offending lorry. Learned counsel for the appellant argued that the MACA 3000/2008 5 accident is a head on collision between the two vehicles. Therefore, there must be some negligence on the part of the deceased also who was riding the moped involved in the accident. 8. In Ext.A1, F.I.R. in the criminal case, the second respondent was made an accused. PW1 is the person who gave the F.I.S. She testified before the Tribunal that the accident occurred due to the negligence of the second respondent. Nothing was brought out during cross examination to discredit her evidence. There was no contra evidence on the side of the appellant/third respondent to show that there was also negligence on the part of the deceased. Therefore, we are of the view that the Tribunal is justified in finding that the accident occurred due to negligence on the part of the second respondent and that there was no negligence on the part of the deceased. The finding of the Tribunal on this point is confirmed. 9. The Tribunal awarded a total compensation of Rs.4,05,500/-. Break up of the compensation awarded is as MACA 3000/2008 6 under:- Loss of dependency : Rs.3,96,000/- Funeral expenses : Rs. 2,000/- Loss of estate : Rs. 2,500/- Loss of love and affection : Rs. 5,000/- ------------------ Total : Rs.4,05,500/- ======= 10. The next question for consideration is whether the Tribunal is justified in fixing the monthly income of the deceased as Rs.3,000/- for assessing the loss of dependency? The deceased was working as a Security Officer in ACC Cement Factory and was drawing salary of Rs.5,560/-, as revealed from Ext.A3 salary certificate. He was also drawing a Military pension of Rs.3,173/-, which is evident from Ext.A6 certificate issued from the bank. The Tribunal did not rely on these certificates, as the persons who issued the certificates were not examined by the claimant. But in our view in assessing the income of the deceased Ext.A3 and Ext.A6 can be taken into consideration. Therefore, we feel that the Tribunal is perfectly justified in fixing the monthly income of the MACA 3000/2008 7 deceased as Rs.3,000/- per month for assessing the loss of dependency. No other point is argued in this appeal. Taking into consideration the age of the claimants, income of the deceased and in the circumstances of the case, we feel that the compensation awarded by the Tribunal is just and reasonable. Therefore, the claimants are not entitled to any enhanced compensation. Therefore, the appeal fails and the same is liable to be dismissed. 11. The learned counsel for the claimants submits that the claimants are not pressing the cross objection, as the appeal is being dismissed. 12. In the result, the appeal and cross objection are dismissed. The parties shall bear their own costs. A.K. BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.