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 22ND MARCH 2010 / 1ST CHAITHRA 1932 MACA.No. 364 of 2007() ---------------------- OPMV.367/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/3RD RESPONDENT: -------------------------------------------------- THE MANAGER, NATIONAL INSURANCE COMPANY LTD., MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, NORTH PARAVUR. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): PETITIONERS 1 TO 4 AND RESPONDENTS 1 AND 2: ------------------------------------------------------------------------------------------------------- 1. SUBRAMANIA, AGED 48 YEARS, S/O.KUNJU, KUTTATHUMVEETTIL HOUSE, POST AZHIKODE, THRISSUR. 2. CHANDRAMATHY, AGED 47 YEARS, W/O.SUBRAMANIAN, KUTTATHUMVEETTIL HOUSE, POST AZHIKODE, THRISSUR. 3. UDAYA, AGED 23 YEARS, W/O.KANNAN, KUTTATHUMVEETTIL HOUSE, POST AZHIKODE, THRISSUR. 4. KIRAN DEV, MINOR 2 YEARS, S/O.KANNA, KUTTATHUMVEETTIL HOUSE, REPRESENTED BY MOTHER UDAYA THE THRID RESPONDENT. 5. ANOOPKUMAR.K.K., ITTITHARAYIL HOUSE, POST KODUNGALLUR, THRISSUR. 6. K.L.SANTHOSH, S/O.LAKSHMANAN, KALLATH HOUSE, KANDASSAMKADAVU, THRISSUR. R1 TO R4 BY ADV. SRI.N.KRISHNANKUTTY PILLAI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 364 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 22nd day of March, 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.367/2001 of Motor Accidents Claims Tribunal, Irinjalakkuda challenge the judgment and award of the Tribunal dated October 5, 2006 awarding a compensation of Rs. 2,76,500/- for the loss caused to the claimants on account of the death of Kannan in a motor accident. 2. The facts leading to this appeal in brief are these :- Deceased Kannan was aged 24 at the time of the accident and used to earn Rs. 3,000/- from fishing work, according to the claimants. On February 2, 2001 at about 6.55 p.m., he was riding his scooter bearing Reg.No.KL8/E 6779 along Kodungallur-Chettuva Sector of National Highway. At that time, the second respondent who was driving a bus bearing Reg.No.KL-8/D 1779, which was proceeding in front suddenly applied the brake. without MACA 364/2007 2 giving any signal. The scooter hit against the back side of the bus and the deceased was thrown away. Deceased sustained very serious injuries. He succumbed to the injuries sustained at about 8.15 p.m. while undergoing treatment at Modern Hospital, Kodungallur. According to the claimants, accident occurred due to the rash and negligent driving of the offending bus by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimants, who are the parents, wife and minor son of the deceased. Claimants claimed a compensation of Rs. 4 lakhs. 3. Respondents 1 and 2, the owner and driver of the offending bus remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending bus filed a written statement admitting the policy, but contending that the accident occurred due to the negligence on the part of the deceased. MACA 364/2007 3 4. PWs. 1 and 2 were examined and Exts.A1 to A8 were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending bus by second respondent and awarded a compensation of Rs. 2, 76,500/-. The Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. The accident is not disputed. The third respondent,Insurance Company, contended that the accident occurred due to the negligence on the part of the deceased and that therefore, the claimants are not entitled to any compensation. 6. Heard the counsel for the appellant/Insurance Company and the counsel for the claimants. 7. The following points arise for consideration :- 1) Whether the finding of the Tribunal that the accident occurred due to the negligence on the part of the driver of the offending bus MACA 364/2007 4 can be sustained ? 2) Whether the compensation awarded is excessive ? Point No.1:- 8. PWs. 2 and 3, independent witnesses, were examined on the side of the claimants. They testified that the accident occurred due to the negligence on the part of the driver of the bus. Nothing was brought out during their cross examination to discredit their evidence. Ext.A2, police charge shows that a criminal case was registered against the second respondent, the driver of the bus. The third respondent did not examine any witness or adduce any evidence to prove that the accident occurred due to the negligence of the deceased. Therefore, the Tribunal is perfectly justified in finding that the accident occurred solely due to the negligence on the part of the driver of the bus, the second respondent. Point No.2:- 9. The next question for consideration is whether the MACA 364/2007 5 compensation awarded is excessive. The claimants challenging the judgment and award of the Tribunal have filed M.A.C.A.No.902/2007 in which we have granted enhancement of compensation. Therefore, we find that the compensation awarded is not excessive. Consequently, we find that the appeal is devoid of any merit and the same has to be dismissed. In the result, the Appeal is dismissed. Parties shall bear their own costs. A.K. BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.