IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 14TH JULY 2008 / 23RD ASHADHA 1930 MACA.No. 1194 of 2005() ----------------------- OPMV.265/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/1ST RESPONDENT: ------------------------------------------ THE MANAGING DIRECTOR, TAMIL NADU STATE TRANSPORT CORPORATION LTD., MADURAI. BY ADV. SRI.C.M.TOMY SRI.MATHEW SKARIA RESPONDENTS/PETITIONERS & RESPONDENTS 2 AND 3: ----------------------------------------------- 1. RETNAMMA, W/O. LATE PONNAPPAN NAIR, VYPIL HOUSE, KOCHERA KARA, NETTITHOZHU P.O., ANAKKARA VILLAGE. 2. DEEPA, D/O. LATE PONNAPPAN NAIR, VYPIL HOUSE, KOCHERA KARA, NETTITHOZHU P.O., ANAKKARA VILLAGE. 3. DIVYA, D/O. LATE PONNAPPAN NAIR, VYPIL HOUSE, KOCHERA KARA, NETTITHOZHU P.O., ANAKKARA VILLAGE. 4. SMT.E. KALADEVI, W/O. ELENGESWARAN, 17-1, TAMILKUDI, AMBATTURAI POST, DINDIGUL TALUK, TAMIL NADU STATE. 5. NATIONAL INSURANCE CO. LTD., THODUPUZHA. BY ADV. SMT.SARAH SALVY FOR R5 SRI.JOSE THOMAS (PEEDIKAYIL) FOR R1 TO R3 SRI.TOMY PAUL FOR R1 TO R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2008 ALONG WITH MACA NO.1196 OF 2005 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------- M.A.C.A.NOS.1194, 1196, 1198, 1217, 1219, 1220, 1221, 1222 & 1223 OF 2005 () & M.A.C.A.NO.428 OF 2007 ----------------------------------- Dated this the 14th day of July, 2008 J U D G M E N T KOSHY,J. All these appeals except M.A.C.A.No.428/2007, are filed by the Managing Director, Tamil Nadu State Transport Corporation Ltd. against the common award passed by the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV).No.265/2001 and connected cases. A van bearing registration No.TN 60-5679 collided with a stage carriage bus bearing registration No.TN-59/961 on 1.5.2000. Passengers in the bus as well as in the van were injured. Three sustained fatal injury. The representative of the deceased victims as well as the other injured passengers approached the tribunal claiming compensation. Tribunal found that accident occurred solely due to the negligence of the driver of the stage carriage bus owned by the appellant. After calculating compensation, M.A.C.A.NOS.1194, 1196, 1198, 1217, 1219, 1220, 1221, 1222 & 1223 OF 2005 () & M.A.C.A.NO.428 OF 2007 2 appellant was directed to deposit the same. The contention of the appellant is that accident occurred due to the negligence of the driver of the van. In any event, fixing total liability on the appellant is incorrect. The tribunal has to consider the evidence adduced before it. Regarding the question of negligence, the evidence would show that there is a head on collision. If either of the vehicle drivers were cautious, the accident could have been avoided. The allegation of the claimant is that both vehicle drivers were negligent. Driver of the bus, RW1 deposed before the court that accident occurred due to the negligence of the driver of the van which was insured by the 3rd respondent Insurance company. Even though driver cum owner of the van was the 2nd respondent, he did not come and adduce evidence. PW1, claimant who was examined was not an eye witness to the incident, but only the wife of the person who received fatal injuries in the accident. The tribunal fixed the liability on the driver of the stage carriage bus solely because he was charge sheeted. M.A.C.A.NOS.1194, 1196, 1198, 1217, 1219, 1220, 1221, 1222 & 1223 OF 2005 () & M.A.C.A.NO.428 OF 2007 3 There is no evidence to show that he was convicted for the above offence. The evidence adduced before the tribunal is only oral evidence of RW1, driver of the appellant who denied his negligence and attributed the negligence to the driver of the van. The scene mahazar would show that both the drivers were negligent. We also note that Honourable Supreme court in Bijoy Kumar Dugar v. Bidyadhar Dutta and others (AIR 2006 SC 1255) held that in head on collision, both drivers can be presumed to be negligent equally in the absence of independent evidence. Therefore, we are of the view that accident occurred due to the negligence of both drivers. Therefore, compensation awarded in these cases should be shared by the appellant, who was the 1st respondent before the tribunal and 3rd respondent Insurance company, which insured the van as coverage of the van was admitted by valid insurance policy issued by it. We modify the awards accordingly. It is also noticed that one of the cases was disposed of by the M.A.C.T., Kottayam. In that case, tribunal M.A.C.A.NOS.1194, 1196, 1198, 1217, 1219, 1220, 1221, 1222 & 1223 OF 2005 () & M.A.C.A.NO.428 OF 2007 4 after consideration of evidence found that both drivers were negligent and compensation awarded was ordered to be paid equally by the appellant as well as the 3rd respondent Insurance company. In that case, charge sheet for both drivers was produced by Exts.A6 and A6 (a). All the impugned awards are modified directing the appellant and the 3rd respondent to deposit the award amount in equal proportion with proportionate interest and costs at the rate as awarded by the tribunal. 2. M.A.C.A.No.428/2007 is filed by the dependents of the motor accident victim contending that amount awarded was inadequate. Major contention raised by the claimants was that deceased was a fish vendor. PW1, the wife of the deceased deposed before the court that deceased was earning Rs.4,000/- per month and he was maintaining a family which consists of herself and two daughters and deceased was the sole bread winner of the family. But tribunal only fixed M.A.C.A.NOS.1194, 1196, 1198, 1217, 1219, 1220, 1221, 1222 & 1223 OF 2005 () & M.A.C.A.NO.428 OF 2007 5 Rs.2,000/- as the monthly income. There was no counter evidence. The accident occurred in 2000. Since he was a fish vendor and he was maintaining a family, we are of the opinion that tribunal ought have fixed atleast Rs.3,000/- as the monthly income. Tribunal has taken 8 as the multiplier. Since he was aged 60, we see no ground to interfere in the multiplier fixed by the tribunal. From Rs.3,000/-, 1/3 rd was deducted and multiplicand has to be fixed as Rs.2,000/-. Therefore, compensation payable will be Rs.2,000 x 12 x 8 = Rs.1,92,000/-. Tribunal has awarded only Rs.1,28,000/-. Therefore, additional compensation payable will be Rs.64,000/- and the total compensation payable will be Rs.3,14,850/- instead of Rs.2,50,850/- awarded by the tribunal. The above amount should be deposited by the 1st respondent, Managing Director, Tamil Nadu State Transport Corporation Ltd. and the 3rd respondent Insurance company in equal proportion with 6% interest from the date of application till its deposit over and above the decreed amount by the tribunal. M.A.C.A.NOS.1194, 1196, 1198, 1217, 1219, 1220, 1221, 1222 & 1223 OF 2005 () & M.A.C.A.NO.428 OF 2007 6 The amount can be withdrawn as ordered by the tribunal. All the appeals are allowed to the above extent. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 26th May, 2008