IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 MACA.No. 1055 of 2005() ----------------------- OPMV.866/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- SABEENA JAYAPALAN, UPASANA, MUNDAKKAL, KOLLAM. BY ADV. SRI.B.SURESH KUMAR SMT.M.A.THASNIM RESPONDENTS: RESPONDENTS -------------------------- 1. RAJEEV, RAJ NIVAS, CHERAVALLY, KAYAMKULAM. 2. OMANAKUTTAN, THATTARAPPALLY, CHERAVALLY, KAYAMKULAM. 3. THE BRANCH MANAGER, NEW INDIA INSURANCE CO LTD., KAYAMKULAM. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1055 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of January, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P(MV)No.866/1996 on the file of Motor Accidents Claims Tribunal, Kollam. She is the wife of Dr.Jayaprakash who died in a motor accident. In this appeal, the claimant challenges the judgment and award of the Tribunal dated January 20, 2004 awarding a compensation of Rs. 35,000/- for the loss caused to her on account of the death of deceased in that accident. 2. The accident happened on October 26, 1995 at about 11 p.m.. The deceased was driving his car along Kollam-Alappuzha National Highway. When he reached in front of St.George Hotel at Sakthikulangara, it collided head on with a mini lorry bearing Reg.No.KL-4/5234 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 second respondent, the claimant filed the O.P. before the MACA.No.1055/2005 2 Tribunal claiming a compensation of Rs. 15 lakhs. 3. Respondents 1 and 2, the owner and the driver of the offending mini lorry remained absent before the Tribunal. The third respondent, the insurer of the offending vehicle filed a written statement admitting the policy, but attributed negligence to the deceased also. 4. The power of attorney holder of the claimant was examined as PW1 and Exts.A1 to A13 were marked on the side of the claimant. The occurrence witness PW2 was also examined on her side. No evidence was adduced by the contesting third respondent before the Tribunal. On an appreciation of evidence, the Tribunal found that there was 80% contributory negligence on the part of the deceased and assessed a compensation of Rs.1,75,000/- and awarded 20% of the same i.e. Rs. 35,000/- as compensation with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the finding of the Tribunal regarding contributory negligence on the part of the deceased and also the quantum of compensation awarded by the Tribunal. MACA.No.1055/2005 3 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The following points arise for consideration : 1) Whether the finding of the Tribunal that there was 80% contributory negligence on the part of the deceased and consequently reducing the compensation amount can be sustained ? 2) Whether the claimant is entitled to any enhanced compensation ? 7. The Tribunal found that there was 80% contributory negligence on the part of the deceased on the ground that the copy of the scene mahazar in the criminal case- Ext.A4 shows that car was on the wrong side while the mini lorry was on its right side. But PW2, the occurrence witness has categorically stated that the road is east-west at that place and that after the hit, the lorry swerved to the southern side of the road and that the accident occurred due to the negligence of the driver of the mini lorry. Since this being a head on collision and as no evidence was adduced on the side of the contesting third respondent or on the side of other respondents, we are inclined to hold that the accident occurred due to the negligence of the drivers of both the vehicles equally. That being so, the deceased can be found MACA.No.1055/2005 4 only of contributory negligence to the extent of 50%. Consequently, the claimant is entitled to 50% of the compensation assessed by the Tribunal i.e. Rs. 87,500/-. 8. The next question for consideration is whether the claimant is entitled to enhanced compensation. 9. The Tribunal assessed a total compensation of Rs. 1,75,000/-. The break-up of the compensation assessed by the Tribunal is as under : Loss of dependency - Rs. 1,59,999/- Transportation & funeral exp.- Rs. 5,000/- Loss of love and affection - Rs. 10,000/- 10. Counsel for the claimant sought enhancement of compensation for loss of dependency, for pain and suffering endured, for loss of love and affection and on other heads. 11. The Tribunal took the monthly income of the deceased as Rs.4,000/- and after deducting 1/3 for his personal expenses, took the balance amount of Rs. 2666/- as the monthly contribution to his family and adopted a multiplier of 5 and assessed a compensation of Rs. 1,59,999/- for loss of dependency. The deceased was an MBBS MACA.No.1055/2005 5 doctor. Ext.A7 is the photocopy of his degree certificate and Ext.A8 is the photocopy of his post-graduate degree certificate. Ext.A9 is the copy of the Registration Certificate. He was working as Chief Medical Officer in J.J.Hospital, Krishnapuram and was the Administrative Officer of Mar Theodocius Memorial Mission Hospital, Poruvazhy. According to the claimants, he is earning an income of Rs. 15,000/- per month. As the deceased was a Medical Officer, we feel that his monthly income can be reasonably fixed at Rs. 15,000/- as contended by the claimant. After deducting 1/3 for his personal expenses, the balance amount of Rs. 10,000/- per month can be taken as his monthly contribution to his family which comes to Rs. 1,20,000/- per annum. The deceased was aged 32 at the time of the accident. The claimant is also a Medical Officer aged 32 and she has remarried after five years. Therefore, we feel that the Tribunal is perfectly justified in adopting a multiplier of 5 alone. Thus calculated, loss of dependency compensation comes to Rs. 6,00,000/- ( 1,20,000 x 5). The claimant is entitled to only 50% of the same i.e. Rs.3,00,000/-. Thus the claimant is entitled to an additional compensation of Rs. 2,20,000/- on MACA.No.1055/2005 6 this count. 12. The Tribunal assessed Rs. 10,000/- for loss of love and affection which appears to be very low. Taking into consideration the age of the claimant, we feel that a compensation of Rs.50,000/- would be reasonable on this count. Claimant is entitled to 50% of the same i.e. Rs. 25,000/-. Thus the claimant is entitled to an additional compensation of Rs.20,000/- on this count. 13. No compensation was seen awarded for pain and suffering. In the circumstances of the case, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. Claimant is entitled to 50% of the same i.e Rs.7,500/-. 14. In the result, the claimant is found entitled to 50% of the compensation assessed by the Tribunal i.e. Rs. 87,500/-. She is also entitled an additional compensation of Rs.2,47,500/- with interest @ 9% 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 MACA.No.1055/2005 7 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.1055/2005 8