IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 MACA.No. 566 of 2006() -------------------------------- OPMV.418/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT/3RD RESPONDENT --------------------------------------------- NATIONAL INSURANCE COMPANY LIMITED, KASARAGOD NOW REPRESENTED BY ITS DEPUTY MANAGER, KOCHI REGIONAL OFFICE, AJAY VIHAR, KOCHI-16. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENTS/PETITIONERS 1 TO 5 AND 4TH RESPONDENT: ---------------------------------------------------------------------------------------- 1. SHABANA. K., W/O.MUSTHAFFA.K., KIZHAKKAMKUNNATH HOUSE, MULAKKAL, KERALADHEESAPURAM P.O., VIA TANUR. 2. UMMATHUKUTTY, KORAMKANDATHIL VEEDU, NEDUVA P.O., PARAPPANANGADI. 3. AYISA, W/O.KUNHIMOHAMMED, VANIYAMPARAMBATH VEEDU, KODAKKAL P.O., VIA CHETTIPPADI, PARAPPANANGADI. 4. RAMLA, KORAMKANDATHIL VEEDU, NEDUVA P.O., PARAPPANANGADI. 5. SAFIYA, DO. DO. 6. RASAK, DO. DO. (NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1 & 2 IN THE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THE APPEAL) (THE 6TH PETITIONER DIED DURING THE PENDENCY OF THE PROCEEDINGS). ADV. SRI.PROMY KAPRAKKATT FOR R1 TO R6 SRI.K.N.ABHILASH FOR R1 TO R6 SMT.P.K.BEENA FOR R1 TO R6 SRI.SUNIL NAIR PALAKKAT FOR R1 TO R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.A.C.A.NO.566 OF 2006 (G) ----------------------------------- Dated this the 3rd day of November, 2008 J U D G M E N T KOSHY,J. This appeal is filed by the Insurance company challenging the quantum of compensation. Wife, sisters and grand mother of a motor accident victim claimed compensation contending that the accident occurred due to the negligence of the driver of the vehicle insured by the appellant Insurance company. The deceased was driving the motor cycle. A lorry bearing registration No.KL-14B/1488 which was insured by the appellant Insurance company hit the motor cycle. Deceased fell down and sustained fatal injuries. He succumbed to the injuries on the same day. Deceased was employed in Saudi Arabia and he came for leave. Ext.A11 is the passport. Ext.A7 is the salary certificate. That was proved by PW2 a co-employee. That shows that 1,693 dirhams is the MACA.566/06 2 net salary. Tribunal deducted 498 dirhams from the above as that represents overtime wages. Therefore, balance amount was 1,195 dirhams. Taking the exchange value at the time of accident, it would be more than Rs.12,000/-. But tribunal has taken only Rs.10,000/- per month. In United India Insurance Co. Ltd. v. Patricia Jean Mahajan and others (JT 2002 (5) SC 74), Apex Court held that exchange value at the time of accident is to be taken for the purpose of calculation of compensation. If that be so, even without taking overtime wages, loss of dependency per month will be Rs.8,000/- (after deducting 1/3 rd of Rs.12,000/-). Hence compensation will be double than that was awarded by the Tribunal. According to the claimants, every month he could earn overtime and overtime also should not have been deducted. Even though Rs.10,000/- was fixed as the monthly income for the purpose of calculation of compensation, only Rs.4,000/- was taken by the Tribunal and compensation was calculated. Wife of the deceased was only 22 years old. If the age of the widow is taken into account, 17 is the multiplier. Claimant was 33 years old at the time of accident. MACA.566/06 3 Taking guidelines from the 2nd Schedule, if the victim's age is taken into account also, 17 is the multiplier. But Tribunal has taken only 12 as the multiplier. Compensation for death was calculated as Rs.5,76,000/- (Rs.4,000 x 12 x 12). Tribunal awarded only Rs.5,12,000/- as the amount claimed was only Rs.5,12,000/-. No amount was granted for loss of estate, pain and sufferings, transportation expenses, loss of consortium etc. Even though the Honourable Supreme Court has held that it is duty of the Tribunal to award just and reasonable compensation and Tribunal can award more than that is claimed (See Nagappa v. Gurudayal Singh and others (2002 AIR SCW 5348). Since the claimants have not filed an application questioning the quantum of compensation, we are not enhancing the compensation awarded. In any event, we are of the opinion that the amount granted cannot be termed as excess as contended by the Insurance company. 2. Next contention raised is that the finding of negligence on the part of the driver of the lorry is not correct. Only documentary evidence was adduced regarding the aspect MACA.566/06 4 of negligence. Ext.A1 is the F.I.R which shows that the driver of the lorry insured by the appellant was negligent. Ext.A2 is the scene mahazar. Scene mahazar shows that the lorry was on the extreme wrong side. Ext.A3 is the copy of the charge sheet which shows that driver of the lorry was charge sheeted and Police, after investigation, prima facie found that driver of the lorry was negligent. No evidence was adduced by the Insurance company to prove contributory negligence on the part of the deceased and failed to adduce evidence or for summoning any of the occurrence witnesses before the Tribunal. It is contended that the deceased was having only learners licence. Along with the deceased, another person was also travelling he was having a driving licence. Therefore, he was driving the vehicle as per the rules and he was duly licenced. Even if there is absence of licence, we cannot attribute contributory negligence when the evidence shows that accident occurred due to the negligence of the driver of the other vehicle as held by the Honourable Supreme Court in Sudhir Kumar Rana v. Surinder Singh & others (2008 AIR SCW 3981). Therefore, we cannot attribute MACA.566/06 5 negligence on the deceased in the absence of any evidence. Driver of the lorry was licensed and there is no contention for the Insurance company that there is violation of policy conditions. Hence, we fully agree with the findings of the Tribunal and no grounds are made out to interfere in the appeal, and hence, this appeal is dismissed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 14th October, 2008