IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 MACA.No. 634 of 2007() ---------------------- OPMV.415/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANTS/PETITIONERS IN OP(MV) ---------------------------------------------- 1. VIJAYALAKSHMI, W/O.GOPALAN NAIR, KURUVATH HOUSE, RESIDING AT AVITTATHOOR DESOM, KADUPPISSERY VILLAGE, AVITTATHOOR P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. LAVANYA, D/O.LATE GOPALAN NAIR, KURUVATH HOUSE, RESIDING AT AVITTATHOOR DESOM, KADUPPISSERY VILLAGE, AVITTATHOOR P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 3. ARUNKUMAR, S/O.LATE GOPALAN NAIR, KURUVATH HOUSE, RESIDING AT AVITTATHOOR DESOM, KADUPPISSERY VILLAGE, AVITTATHOOR P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 4. MIDHUN, S/O.LATE GOPALAN NAIR, KURUVATH HOUSE, RESIDING AT AVITTATHOOR DESOM, KADUPPISSERY VILLAGE, AVITTATHOOR P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS IN OP(MV) ------------------------------------ 1. T.A.MOOSA, S/O.T.P.AHAMEDKUTTY, THAZHEPULIYARAKKAL HOUSE, KALIYAPARAMBU P.O., KOZHIKODE. 2. MANAGER, NATIONAL INSURANCE CO.LTD., ARAYADATH PALEM, KOZHIKODE. 3. THE UNITED INDIA INSURANCE CO.LTD., ALENGADEN BUILDINGS, TANA, IRINJALAKUDA. ADV. SRI.P.JAYASANKAR FOR R3 SMT.SARAH SALVY FOR R.2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A.634 of 2007 ------------------------------------------------------ Dated: FEBRUARY 16, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimants in OP(MV)415/2000 of the Motor Accidents Claims Tribunal, Irinjalakuda, who are the wife and children of deceased Gopalan Nair, challenge the judgment and award of the Tribunal dated October 19, 2006 dismissing the O.P. 2. The facts in brief are these: Deceased Gopalan nair was aged 42 and was the owner-cum-driver of goods carriage bearing registration No.KL-8/C 6503. On May 18, 1999 at about 7 a.m. he was driving his vehicle along Kozhikode - Kannur National Highway 17. At that time another goods carriage bearing registration No.KL- 11/D 6208 driven by the 1st respondent came at a high speed and dashed against the vehicle driven by the deceased. Gopalan Nair sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital. It was consented that first Respondent as the driver, 2nd respondent as the owner and 3rd respondent as the insurer were jointly and severally liable to pay compensation to the claimants for the loss caused to them on account of the death of Gopalan Nair in the accident which occurred due to the M.A.C.A.634 of 2007 2 negligence on the part of the 1st respondent. Claimants claimed a compensation of Rs.5 lakhs under sec.163A of Motor Vehicles Act. 3. The 1st respondent, driver of the offending vehicle, remained absent and was set ex parte before the Tribunal. Second respondent, owner of the said vehicle, did not file any written statement. Third respondent, insurer of the said vehicle, admitted the policy, but contended that the accident occurred due to the negligence on the part of the deceased. 4. PW.1 was examined and Exts.A1 to A11 were marked on the side of the claimants. No evidence was adduced by the contesting 3rd respondent. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence on the part of the deceased and that therefore they are not entitled for any compensation and consequently dismissed the O.P. The claimants have now come up in appeal challenging the said judgment of the Tribunal. 5. The following points arise for consideration:- 1. Whether the finding of the Tribunal that the accident occurred due to the negligence on the part of the deceased and consequently dismissing the OP can be sustained? 2. Whether in an application under sec.163A of the Motor Vehicles Act, question of negligence can be gone into? M.A.C.A.634 of 2007 3 3. What is the quantum of compensation the claimants are entitled to? Points 1 and 2 6. The accident is not disputed. The Tribunal has found that the accident occurred due to the negligence on the part of the deceased while driving the goods carriage bearing registration No.KL- 8/C 6503. The Tribunal relied mainly on the fact that the police has charged a case against the deceased and subsequently closed the case. Ext.A5 is the said final report. For several reasons we are inclined to hold that the above finding of the Tribunal cannot be sustained. 7. The OP was filed under sec.163A of the Motor Vehicles Act. The question of negligence does not arise for consideration in a claim under sec.163A of the Motor Vehicles Act. The Apex Court has explained the need for sec.163A in Oriental Insurance Co. Ltd. V. Hansrajbhai (2001 (5) SCC 175). The Supreme Court has in the above case observed that if the Insurance Company is permitted to prove that the insured is not at fault, though his vehicle is involved, then the whole purpose of legislation introducing sec.163A will be frustrated. It was further observed therein that if the Insurance Company is permitted to prove the negligence even of the victim or no negligence M.A.C.A.634 of 2007 4 of the insured, then the purpose for which the legislation introduced sec.163A would be frustrated. A Full Bench of this Court has considered the matter in detail, in National Insurance Co. Ltd. v. Malathi C. Salian {2003 (3) KLT 460 (FB)} and held that merely because the victim was the rider of the vehicle and no other vehicle was involved in the accident, compensation cannot be denied under Sec.163A. The principle laid down in Hansrajbhai's case (supra) is followed by a Division Bench of this Court in Oriental Insurance Co. Ltd. v. Smt. Baby and others (2008 (4) KHC 103) 8. In the light of the principles laid down in the above decisions, the Tribunal is not justified in considering the question of negligence in this case. The question of negligence is not an issue to be considered while disposing of an application under sec.163A of the Motor Vehicles Act. Further, in this case no evidence is adduced on the side of the contesting 3rd respondent to show that there was any negligence on the part of the deceased in causing the accident. Even in the FIR Ext.A1, a copy of which is produced by the counsel for the claimants, it is seen recorded that the accident occurred due to the negligence on the part of the driver, the 1st respondent. For all these reasons we hold that the finding of the Tribunal that the accident occurred due to the negligence on the part of the deceased and M.A.C.A.634 of 2007 5 thereby dismissing the OP cannot be sustained and the same is hereby set aside and we hold that the claimants are entitled to compensation from the respondents for the loss caused to them on account of the death of the deceased in the accident. Point No.3 9. The next question is what is the quantum of compensation the claimants are entitled to? Though the Tribunal dismissed the OP, it has quantified the quantum of compensation which the claimants are entitled to. An amount of Rs.2000/- was granted for funeral expenses, Rs.2500/- for loss of estate, Rs.5000/- for loss of consortium and Rs.2,40,000/- for loss of dependency. The Tribunal has assessed the monthly income of the deceased as Rs.2000/- as no document was produced by the claimants to prove the monthly income of the deceased. But the deceased was an owner-cum-driver of a goods carriage involved in the accident. Therefore, in our view, his monthly income can be reasonably assessed at Rs.3000/-. After deducting 1/3rd for his personal expenses, his monthly contribution to the family, comes to Rs.2000/- which works out to Rs.24,000/- annually. The multiplier that has to be adopted is 15 as per the Second Schedule of the Motor Vehicles Act. Adopting the said multiplier, for loss of dependency the claimants are entitled to M.A.C.A.634 of 2007 6 Rs.3,60,000/-. 10. The Tribunal has awarded Rs.2000/- for funeral expenses, Rs.2500/- for loss of estate, Rs.5000/- for loss of consortium as provided under the Second Schedule of the Motor Vehicles Act. 11. Thus the claimants are entitled to a compensation of Rs.3,69,500/-. They are entitled to interest at the rate of 9% per annum from the date of petition till realisation. The 3rd respondent, insurer of the offending vehicle, shall deposit the amount within two months from the date of receipt of a copy of this judgment before the Tribunal with notice to the claimants. The claimants are also entitled to costs throughout. The appeal is allowed as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-