IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 MACA.No. 487 of 2008 & CROSS OBJECTION NO.74 OF 2008 ---------------------- (OPMV.280/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA) APPELLANTS/PETITIONERS. ------------------------- 1. PADMAJA KANAKAMBARAN, W/O. KANAKAMBARAN, RESIDING AT CHINGANCHIRA HOUSE, NEAR BLOCK OFFICE, KOLENCHERY. 2. JINI C.K., D/O. KANAKAMBRAN, RESIDING AT CHINGANCHIRA HOUSE, NEAR BLOCK OFFICE, KOLENCHERY. 3. JINESH, S/O. KANAKAMBRAN, RESIDING AT CHINGANCHIRA HOUSE, NEAR BLOCK OFFICE, KOLENCHERY. 4. LAKSHMI, W/O. KUNJAN, RESIDING AT CHINGANCHIRA HOUSE, NEAR BLOCK OFFICE, KOLENCHERY.(MOTHER OF THE DECEASED). BY ADV. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU RESPONDENTS/RESPONDENTS: --------------------------------- 1. C.V.SUNNY, S/O. VARGHESE, CHALUNILATHU HOUSE, KAYANADU KARA, OORAMANA, MUVATTUPUZHA. 2. M.P.SHIJU, S/O. PEETHAMBARAN, MUTHONADATHIL HOUSE, KAYANADU KARA, OORAMANA, MOOVATTUPUZHA. BY ADV. P.F. FAZIL. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/11/2009, ALONG WITH CO NO. 74 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ............................................................................... M.A.C.A. No. 487 of 2008 & CROSS OBJECTION NO.74 OF 2008 ......................................................................... Dated this the 13th November, 2009 J U D G M E N T P.R. Ramachandra Menon, J: The legal heirs of a deceased person who succumbed to injuries sustained in the accident occurred on 26.11.2002 are the appellants before this Court. 2. The deceased was in fact riding a scooter bearing No.KBF-3275 along the Muvattupuzha-Ernakulam road, from the East to the West, when a mini lorry bearing Reg. No. KLI/8770, owned by the first respondent and driven by the second respondent, came from behind, knocked him down and ran over the person causing fatal injuries, leading to his death while undergoing treatment, which led to the claim preferred by the legal heirs. 3. The claimants were none other than the widow of the M.A.C.A. No. 487 of 2008 2 deceased, daughter, son and mother respectively, who attributing negligence on the driver of the lorry and claimed compensation from the owner as well as the driver of the vehicle. The claim was resisted from the part of the respondents stating that the accident was only because of the negligence of the deceased rider of the scooter, who had abruptly crossed the road and came to the side of the lorry, which was proceeding from the East to the West and that there was no negligence on the part of the driver of the lorry, who could not avoid the accident despite all the efforts taken in that regard. 4. The evidence consists of the oral testimony of P.Ws.1 and 2, examined from the part of the claimants and documents produced as Exts. A1 to A14. No evidence, either oral or documentary, was adduced from the part of the respondents. On conclusion of the trial, the Tribunal, referring to the materials on record, particularly the evidence tendered by P.W.1, who was an occurrence witness and also taking note of the description of the spot of the accident as revealed from Ext.A2 Scene Mahazar, found that the deceased had started his scooter from his M.A.C.A. No. 487 of 2008 3 workshop situated nearby and crossed the road, proceeding to the West towards Ernakulam. It was while proceeding so, that the lorry came from behind and knocked down the deceased. It is also observed that the road was having a total width of 4.5 metres and that the accident occurred at 2.93 metres to the South from the northern tarred end of the road. After discussing the evidence, the Tribunal held that the deceased was also liable and negligent in causing the accident and hence negligence was apportioned between the deceased and the driver of the lorry in the ratio of 40:60. The case of the appellants is that fixation of negligence as well as quantum awarded by the Tribunal are not at all correct or proper and hence is under challenge. 5. The learned Counsel appearing for the respondents, on the other hand submits, with specific reference to the Cross Objection filed from their side that the accident was only because of the negligence of the rider of the scooter, who had abruptly crossed the road lying in 'East to West' direction and hence no negligence could have been fastened on the shoulders of the second respondent. It is also stated that the total M.A.C.A. No. 487 of 2008 4 compensation fixed by the Tribunal at Rs.2,54,500/- , of course deducting 40% towards contributory negligence on the part of the deceased, is not correct or sustainable, which hence is sought to be interfered through the Cross Objection . After going through the detailed discussion and reference made by the Tribunal, particularly to the version of P.W.1, which has been extracted in the award, it is seen that the deceased had already crossed the road, which is lying 'East to West', while proceeding to Ernakulam and it was at this point of time that the mini lorry which was proceeding from the East to the West came and hit against the scooter ridden by the deceased. The contents of Ext.A2 Scene Mahazar do not clearly reveal whether any tyre marks of the 'mini lorry' were left on the road at the spot of occurrence. It is also brought on record that the second respondent/driver did not stop the vehicle and take any efforts to take the injured to the hospital. It is further brought to light that the road was lying straight with a clear vision of 100 metres . This being the position, even though it can be said that there was some negligence on the part of the deceased, M.A.C.A. No. 487 of 2008 5 apportionment of the same in the ratio of 40:60 is not correct and we modify the same as 25:75 respectively. 6. Coming to the quantum payable, the case of the claimants before the Tribunal was that the deceased was running a workshop by name 'Union Automobiles' with a monthly income of Rs.6,000/-. However, the Tribunal reckoned only Rs.2500/- stating that no legally acceptable evidence was adduced to substantiate the monthly income of Rs.6000/-. The very fact that the deceased was maintaining a family consisting of five persons including his widow, son, daughter and aged mother persuaded this Court, to refix the monthly income as Rs.3000/- and we reckon the same, so as to re-compute the figures in this regard. 7. The age of the deceased was shown as 44 years, which however was not accepted by the Tribunal stating that, in the absence of any concrete evidence adduced from the part of the claimants, the age was liable to be reckoned as 'above 50' years, thus adopting the multiplier of '11'. We find that the logic and reasoning given by the Tribunal is not correct. Going by the M.A.C.A. No. 487 of 2008 6 pleadings and available materials on record, we find that the deceased was between the age of 45 and 50 years and treating the Second Schedule under Section 163A of the M.V.Act as the guidelines, we re-fix the multiplier at '13'. 8. On re-working the compensation towards loss of dependency as above, we find that a balance sum of Rs.60,800/- (Rupees sixty thousand and eight hundred only) is payable to the appellants under this Head (i.e. 2,80,800 - 2,20,000). We find that absolutely no amount has been awarded by the Tribunal towards pain and suffering. Even it is presumed that the death was instantaneous, the claimants are entitled to get a notional sum of Rs.5000/-. 9. In the result, the appellants are entitled to get a further sum of Rs. 65,800/- (Rupees sixty five thousand and eight hundred only) towards balance compensation payable in respect of the accident and the said amount shall be satisfied by the respondents with interest at the rate of 7% per annum from the date of application. The amount already satisfied by the respondents shall, of course be given credit to and the M.A.C.A. No. 487 of 2008 7 appellants would be entitled to get only the balance amount. Appeal is allowed to the above extent and the cost shall be borne by the parties. In view of disposal of the appeal as above, the Cross Objection preferred from the part of the respondents stands dismissed. P.R. RAMAN, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk The figure and words “Rs.60,800/- (Rupees sixty thousand and eight hundred only)” occurring in the 1st sentence in paragraph 8 of the judgment dated 13/11/2009 in M.A.C.A. 487/2008 are substituted as “Rs.72,750/- (Rupees seventy two thousand seven hundred and fifty only)” and the figure and words “Rs.65,800/- (Rupees sixty five thousand and eight hundred only)“ occurring in the 1st sentence in paragraph 9 are substituted as Rs.77,750/- (Rupees seventy seven thousand seven hundred and fifty only)” vide order dated 24/02/2010 in I.A. 3844/2009 in M.A.C.A. 487/2008.