IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 MACA.No. 74 of 2011() --------------------- OPMV.26/2009 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): 3RD RESPONDENT ---------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, MUVATTUPUZHA,NOW REPRESENTED BY ITS ASSISTANT MANAGER,REGIONAL OFFICE,METRO PALACE,KOCHI-18. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): PETITIONER AND RESPONDENTS 1 & 2 ----------------------------------------------- 1. GRACY,W/O.DEVASIA,MANKUZHICHALIL HOUSE, THAMARAKKADU KARA,VELIYANNOOR.P.O-696543. 2. ASHOK.U.P,S/O.PURUSHOTHAMAN, KAROTTUPARAMBIL HOUSE,KOOTHATTUKULAM.P.O, PIN-686662. 3. JACOB.C.VARGHESE,S/O.VARGHESE,CHENNATTEL HOUSE,862 A/4,KARIMPARA.P.O,KOOTHATTUKULAM, PIN-686662. ADV. SRI.SHIJU VARGHEESE FOR R1 SRIPRAMOJ ABRAHAM FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- M.A.C.A. No. 74 of 2011 ------------------------------------------------- Dated this the 19th day of August, 2011 JUDGMENT Basant,J. The insurance company is the appellant. The sole claimant is a woman aged 47 years, the mother of a deceased person who was aged 24 years at the time of his death. According to the claimant, a widow, she was solely dependent on the deceased, her only son. The deceased succumbed to the injuries which he suffered in a motor accident which took place on 29/10/08. The deceased was a passenger in a bus. The bus had to negotiate a hump on the road. The bus was driven rashly and negligently at an excessive speed and in a most rash manner. It jumped over the hump. As a result of such unexpected jerk in the vehicle, the deceased, a passenger in the bus, was thrown out of the bus. Against a total amount of `6,00,000/- claimed by the claimant, the Tribunal awarded an amount of `4,06,500/- as compensation as per the details shown in paragraph-10 of the impugned award which we extract below: Part-I` Rs. Loss of dependency (5000 x 12 x ½ x 13) 3,90,000/- M.A.C.A. No. 74 of 2011 -: 2 :- Part-I` Rs. Transportation to Hospital 1,000/- Damage to clothing and articles 500/- Funeral expenses 5,000/- Part-II Loss of estate 5,000/- Loss of love and affection 5,000/- Total 4,06,500/- 2. We have heard both counsel. The learned counsel for the appellant/insurance company assails the impugned award on two grounds. First of all, it is contended that the deceased must be held to be partly responsible for the unfortunate accident. He had consumed alcohol. He was standing on the foot board of the bus. It is hence that he was thrown out of the bus. Reliance is placed on the post-mortem certificate Ext.A4 which shows that stomach contents had smell of alcohol. P.W.2 is an eye witness examined by the claimant to prove the precise nature of the accident. Investigation revealed that the driver of the bus was negligent and that was the cause of the accident. The Investigating Officer, after due enquiry, had submitted Ext.A6 final report which is in tandem with the case of the claimant and the evidence of P.W.2. Notwithstanding the marking of Ext.A6 M.A.C.A. No. 74 of 2011 -: 3 :- final report and the evidence tendered by P.W.2, the respondents did not think it necessary to adduce any other or better evidence. The Tribunal accepted the oral evidence of P.W.2 which was confirmed by Ext.A6 final report submitted by the police. 3. This Court has in the unreported decision in judgment dated 20/7/2011 in M.A.C.A. No.1700 of 2008 (The New India Assurance Co. Ltd., v. Pazhaniammal and others) taken the view that in the absence of better evidence, the final report submitted by the police can in an appropriate case be accepted to come to an appropriate conclusion about the responsibility for the accident. In this case, in addition to Ext.A6, we have the oral evidence of P.W.2. We do also have the crucial circumstance that no contra evidence whatsoever has been adduced by the contesting respondents. 4. The only circumstance against the deceased perhaps is that the stomach contents had the smell of alcohol when the post-mortem examination was done. The mere fact that the stomach contents had the smell of alcohol is, at any rate, insufficient to come to any safe conclusion about the responsibility of the deceased for the unfortunate accident. We conclude that there is no merit in the prayer to disagree with the Tribunal on its finding on the question of negligence. M.A.C.A. No. 74 of 2011 -: 4 :- 5. The learned counsel for the appellant/insurance company then contends that the quantum of compensation awarded is excessive. Called upon to explain and be specific, the learned counsel for the appellant contends that the challenge is only against the quantum of compensation awarded for loss of dependency. We note that the deceased was a young man aged 24 years. We have indications to show that he was a head load worker. Ext.A7 salary certificate is produced and P.W.3, the author of that certificate, was examined. His evidence reveals that the deceased was earning an income of `8,000/- per mensem. The Tribunal felt that that was too tall a claim to be meekly accepted. The Tribunal taking into account the age and the nature of employment of the deceased, sailed to the conclusion that the monthly income can safely be reckoned as `5,000/-. Only half of the same was held to be available as contribution to the mother of the deceased. Taking into account the age of the mother/dependent, 13 was accepted as the multiplier. 6. The only contention is that `5,000/- accepted as the monthly income is excessive. It works out to an amount of `200/- per day assuming that the deceased was enjoying holidays regularly. We are unable to agree that the said assumption made M.A.C.A. No. 74 of 2011 -: 5 :- by the Tribunal is in any way unreasonable or irrational as to justify the invocation of our appellate jurisdiction under Sec.173 of the Motor Vehicles Act. We must also take note of the circumstance that the deceased was a young man aged 24 years and even though he is not in a stable and settled employment, it would be absolutely reasonable to assume that there would have been some increase in his earnings. Taking all the relevant circumstance into account, we agree that the Tribunal has not committed any error warranting appellate interference in assuming the monthly income at `5,000/-. Another Tribunal may have reckoned the amount at `4,000/- or `4,500/-. The question is whether our appellate jurisdiction can, need or deserve to be invoked. Our answer is an emphatic. No. 7. In the result, this appeal is dismissed. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //true copy// P.S. to Judge