IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 MACA.No. 972 of 2005() --------------------------------- OPMV.2271/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANTS-CLAIMANT/ADDL. CLAIMANTS IN OP(MV)NO.2271/98. ------------------------------------------------------------------------------------------------ 1. ELSY XAVIER, W/O.XAVIER, ASSARIPARAMBIL HOUSE, NEAR AYANI TEMPLE, VIJAYA ROAD, MARADU P.O. (DIED). 2. A.M.XAVIER, AGED 53 YEARS, S/O.MANUEL. 3. DEEPA, AGED 28 YEARS, D/O.A.M.XAVIER. 4. ASHA, AGED 25 YEARS, D/O.A.M.XAVIER. 5. JAMES GEORGE, AGED 24 YEARS, S/O.A.M.XAVIER, ALL ARE RESIDING AT ASSARIPARAMBIL HOUSE, NEAR AYANI TEMPLE, VIJAYA ROAD, MARADU P.O. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENTS-RESPONDENT NO.1 TO 3 IN OP(MV)NO.2271/98: --------------------------------------------------------------------------------------------- 1. K.V.ASHOK KUMAR, S/O.VELAYUDHAN, KEEKARA HOUSE, EZHUPUNNA P.O., CHERTHALA. 2. JUDES, S/O.JOSEPH, ARACKAL HOUSE, SOUTH OF SREENARAYANAPURAM TEMPLE, EZHUPUNNA P.O., CHERTHALA. 3. THE ORIENTAL INSURANCE COMPANY LTD., BY ITS REGIONAL MANAGER, REGIONAL OFFICE, MUTHOOT TOWERS, M.G.ROAD, COCHIN-35. ADV. SRI.MATHEWS JACOB (SR.) FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------- M.A.C.A.No.972 OF 2005 ------------------------------------- Dated 4th November, 2008 JUDGMENT Koshy,J . The original claimant sustained injuries in a motor accident on 3.6.1998. While crossing Vyttila – Aroor National Highway from east to west at Kundannoor she was hit by a bus bearing registration No.KL- 04/D-4601. The above bus was owned by the first respondent, driven by the second respondent and insured by the third respondent insurance company. The claimant died on 4.8.2000. After her death, her husband and children were impleaded as additional claimants. The amount of compensation claimed was Rs.3,00,000/=. The Tribunal calculated a compensation of Rs.73,250/= inclusive of reimbursement of medical expenses. It was found that the claimant was negligent by 25% and 75% of the compensation calculated (Rs.55,000/=) was awarded as compensation. 2. Two contentions were raised in this appeal. First contention is that the finding of contributory negligence on the part of the claimant is not correct. Secondly, it is contended that the quantum of compensation awarded was very meagre. No oral evidence was MACA.972/2005 2 adduced in this case except that of her husband who was not an eye witness to the incident. Ext.A1 is the scene mahazar. That shows that the bus was extremely on the wrong side. In fact, it crossed the road and fell into a paddy field and the incident occurred at the wrong side. The claimant reached almost at the end of the road. Ext.A2 is the charge sheet. The police, on preliminary investigation, found that the driver of the bus was negligent. According to the Tribunal, a bus was parked on the eastern side. The claimant was crossing the road from east to west through the front side of the parked bus. The bus which was coming from north to south, in the process of overtaking the parked bus went to the western side and the accident took place. The bus went into the paddy field. When the parked bus is being overtaken by another bus, the driver of the bus would have been more careful. The position of the offending bus as per the scene mahazar shows that it was extremely on the wrong side and the claimant has reached almost on the other side of the road. There is no basis for finding contributory negligence on the part of the claimant. Contention of the insurance company is that seeing the claimant, the driver swerved the bus towards the west and even then the claimant ran cross towards west and ultimately the bus hit her and the bus drifted towards the paddy field on the western side. That itself shows that instead of swerving the bus, at least it could have been stopped and if the bus was coming in a moderate speed, the accident MACA.972/2005 3 could have been avoided and there is no basis for finding contributory negligence on the part of the claimant. 3. With regard to the quantum of compensation, according to the appellants, the deceased was a sweeper in the Ganam Hotel getting Rs.2,000/= as the monthly income. But, no evidence was adduced to show that she was employed as a sweeper in Ganam Hotel. In any event, she was a house wife and she has got three children apart from the husband and she was managing the house. Duties of a house wife is also not valueless. Therefore, at least Rs.2,000/= ought to have been fixed as the monthly income. The discharge card shows that she was treated as an inpatient in the hospital for 4 ½ months. Therefore, five months' loss of earnings ought to have been taken for calculation. The Tribunal has awarded Rs.6,250/= for loss of actual earnings taking Rs.1,250/= (notional income) as the monthly income. Since we take Rs.2,000/= as the monthly income, the claimants are entitled to an additional amount of Rs.3,750/= under that head. It is the contention of the claimants that the death of the original claimant is also due to the impact of the accident. She was aged 42 at the time of the accident and she died at the age of 44. It is contended that she had no other illness. She sustained severe injuries and minor head injury. Consequent to the accident she died. But, the claimants did not examine the doctor and MACA.972/2005 4 apart from producing scan report and discharge card, no evidence was adduced to show that the death was the direct result of the accident. However, we are of the opinion that it has got a nexus, otherwise she would not have died at the young age of 44, but, it was not proved beyond doubt. No compensation was awarded for permanent disability and loss of earning power. Considering the fractures and head injury, we are of the opinion that the Tribunal ought to have awarded Rs.13,000/= for disability and loss of earning power. Therefore, the claimants will be entitled to an additional amount of Rs.35,000/=. The above amount of Rs.35,000/= should be deposited by the third respondent insurance company, with 7.5% interest from the date of application till its deposit, over and above the amount decreed by the Tribunal. On deposit of the amount, appellants 2 to 5 are allowed to withdraw the same in equal proportion. The appeal is partly allowed. J.B.KOSHY JUDGE K.P.BALACHANDRAN JUDGE tks