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 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 MACA.No. 1176 of 2009() ----------------------- OPMV.975/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): CLAIMANTS ----------------------- 1. P.C.SHARMILA, W/O.LATE C.S.SOMASUNDARAN, ANUGRAHA, 37-A MOUNT ROAD, COONOOR, NILAGIRIES, NOW RESIDING AT "VISWAS", NEAR YUVAKSHETRA EZHAKKAD POST, PALAKKAD DISTRICT. 2. S.SREYA,(MINOR, AGED 11), D/O.LATE C.S.SOMASUNDARAN, REP.BY NEXT FRIEND AND GUARDIAN, MOTHER, THE IST APPELLANT, -DO- -DO- BY ADV. SRI.LIJU. M.P RESPONDENT(S): RESPONDENTS -------------------------- 1. H.MOHAMMED, NAZEEMA MANZIL, PARUTHIPPULLI, PERINGOTTUKURUSSI, PALAKKAD.( DELETED) 2. ABDUL GAFOOR, C/O.H.MOHAMMED, NAZEEMA MANZIL, PARUTHIPPULLI, PERINGOTTUKURUSSI, PALAKKAD.( DELETED) 3. UNITED INDIA INSURANCE CO.LTD., PALAKKAD. 4. RETNAKUMARI, D/O.LATE A.A.DEVAKI, CHULLIYIL HOUSE, KOTTAYI POST, ALATHUR, PALAKKAD. 5. PRESEETHA, D/O.LATE DEVAKI, -DO- -DO- 6. PRAMEELA, D/O.LATE DEVAKI, CHULLIYIL, P.O.KOTTAYI, ALATHUR. RESPONDENTS 1 AND 2 DELETED AT THE RISK OF THE APPELLANT AS PER ORDER DATED 17/1/2011 IN I.A.NO.62/2011 ADV. SRI.P.K.MOHANAN(PALAKKAD) FOR R4-6 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1176 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of February, 2011 JUDGMENT Barkath Ali, J. Appellants are the claimants in OP(MV)975/2002 on the file of the Motor Accidents Claims Tribunal, Palakkad. They are the wife and daughter of deceased Somasundaran who died in a motor accident. In this appeal they challenge the judgment and award of the Tribunal dated August 21, 2008 awarding a compensation of Rs. 28,00,000/- for the loss caused to them on account of the death of deceased in that accident. 2. On March 13, 2002 at about 4.30 p.m. the deceased was riding the motor cycle bearing Reg.No.KL 9 J 9839. When he reached at Anikkode, he was knocked down by the jeep bearing Reg.No.KL 8D.4699 driven by the second respondent. The deceased sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital. Alleging negligence against the driver of the jeep, the claimants filed the OP under Sec.166 of the MACA.No.1176/2009 2 Motor Vehicles Act claiming a compensation of Rs.40,00,000/-. 3. Respondents 1 and 2, the owner and the driver of the offending jeep remained absent before the Tribunal. The third respondent, the insurer of the offending jeep filed a written statement admitting the policy of the jeep, but attributed negligence to the deceased. The fourth respondent was the mother of the deceased. She died during the pendency of O.P. The sisters of the deceased were impleaded as additional respondents 5, 6 and 7. 4. PW1 was examined and Exts.A1 to A12 were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting third respondent. On an appreciation of evidence the Tribunal assessed a total compensation of Rs.41,25,000/- and found that there was 20% contributory negligence on the part of the deceased and awarded only Rs.28,00,000/- with interest at the rate of 7.5% per annum from the date of petition till realisation and a cost of Rs.1,000/-. The claimants have now come up in appeal challenging the above finding of the Tribunal regarding 20% contributory negligence on the part of the deceased as well as the quantum of MACA.No.1176/2009 3 compensation awarded by the Tribunal. 5. Heard the counsel for the appellants/claimants and the counsel for the Insurance Company. 6. The Tribunal assessed a total compensation of Rs.41,25,000/-. The break up of the compensation amount awarded is as under: Loss of dependency - Rs.40,80,000/- Funeral expenses - Rs. 5,000/- Loss of consortium - Rs. 15,000/- Loss of love and affection - Rs. 10,000/- Loss of estate - Rs. 5,000/- Transport to hospital - Rs. 5,000/- Pain and suffering - Rs. 5,000/- 7. The Tribunal assessed a total compensation of Rs. 41,25,000/-, but deducted 20% of the compensation as there was 20% contributory negligence on the part of the deceased. The Tribunal came to the above conclusion on the basis of scene mahazar Ext.A2. But the said document is not properly proved by examining the person who prepared it. On the other hand, the first claimant as PW1 testified in a convincing manner that the accident occurred due to the negligence of the driver of the jeep, the second respondent. The police MACA.No.1176/2009 4 has charged the case against the second respondent, the driver of the jeep. But the scene mahazar shows that the deceased was riding his motor cycle on the wrong side of the road. That being so, we feel that only 10% contributory negligence can be attributed to the deceased. Therefore, out of the compensation assessed only 10% need be deducted. Thus, the claimants are entitled to a compensation of Rs.37,12,500/-. 8. There is another aspect in this case. The Tribunal deducted Rs.5,00,000/- from the compensation due to the claimants on the ground that claimants have received Rs. 5,00,000/- under medical claim. But there are no documents to prove the same. On going through the deposition of PW1, it is seen that she has received a compensation of Rs.5,00,000/- under medical claim. But the said version seems to be a mistake. In this appeal, the claimants produced a certificate from the LIC to the effect that only Rs. 50,000/- was reimbursed to the claimants towards hospital charges. Therefore, the Tribunal is not justified in deducting Rs.5,00,000/- from the total claim due to the claimants. As regards the compensation awarded under MACA.No.1176/2009 5 other heads, we find the same to be reasonable and therefore are not disturbing the same. 9. In the result, the claimants are found entitled to an additional compensation of Rs. 9,12,500/-. They are entitled to interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1176/2009 6