IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 MACA.No. 2396 of 2008() ----------------------- OPMV.383/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/3RD RESPONDENT: ---------------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REPRESENTED BY THE MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENTS/PETITIONERS 1&2 AND RESPONDENTS 1&3 RESPECTIVELY: ----------------------------------------------------------------------------------------------------------------- 1. ABRAHAM PAUL, AGED ABOUT 26 YEARS, S/O.LATE M.V.PAUL, MANKUTTY HOUSE, U.C.COLLEGE P.O., ALUVA. 2. BABU PAUL, AGED ABOUT 23 YEARS, S/O.LATE M.V.PAUL, MANKUTTY HOUSE, U.C.COLLEGE P.O., ALUVA. 3. SOSAKUTTY PAUL, MANKUTTY HOUSE, U.C.COLLEGE P.O., ALUVA-2, ERNAKULAM DISTRICT. 4. VARGHESE PAUL, AGED ABOUT 27 YEARS, S/O.LATE M.V.PAUL,MANKUTTY HOUSE, U.C.COLLEGE P.O., ALUVA-2. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.2875/2008 OF M.A.C.A.NO.2396/2008 DISMISSED 17/11/2008 SD/- J.B.KOSHY, JUDGE SD/- THOMAS P.JOSEPH,JUDGE /TRUE COPY/ P.S.TO JUDGE Kss J.B. Koshy & Thomas P.Joseph, JJ. -------------------------------------- M.A.C.A. No. 2396 of 2008 --------------------------------------- Dated this the 17th day of November, 2008 Judgment Koshy,J. A tourist taxi driver died in a motor accident on 29.7.2002 while driving the car bearing registration No. KL 7/D 3399. According to the claimants, it was a pure accident as it hit the road guard stone accidentally and fell into a swamp and the deceased sustained severe injuries and died at the spot itself. Claimants contended that income of the deceased was Rs.3,333/- per month and the claim was filed under section 163-A, but, Tribunal found that he was only a taxi driver and his monthly income was fixed at Rs.2,500/-. Taking the age as 52, multiplier was fixed as 11 taking guidance from the second schedule. Claim petition was filed by the two sons of the deceased. One son who is not available was impleaded as third respondent in the claim petition. The vehicle was owned by his own wife who was made the first respondent in the claim petition. In claims under section 163-A, negligence aspect need not be looked into. Coverage of insurance of the vehicle is admitted. 2. Two major contentions are raised by the appellant insurance company. First is that claimant filed a workmen M.A.C.A. No. 2396/2008 2 compensation case originally. When the insurance company filed objection stating that the claimants are not dependents, they filed a petition supported by affidavit to withdraw the claim petition and the workmen compensation claim was dismissed as withdrawn. No finding was entered into. The matter was not adjudicated. Claim petition was withdrawn. Since the compensation case was withdrawn, that is not a bar in claiming compensation before the Motor Accidents Claims Tribunal. 3. Next contention is that originally, the case of claimants was that the deceased was getting Rs.4,500/- per month and if the amount claimed is more than Rs.4,000/- claim under section 163-A will not lie. But, claim made before the Motor Accidents Claims Tribunal was that the deceased was getting Rs.3,333/- per month. The Tribunal on evidence found that monthly income was only Rs.2,500/-. Therefore, finding is that only Rs.2,500/- is his monthly income. That means that Rs.30,000/- is the annual income and Rs.20,000/- was taken as the loss of dependency for calculating dependency compensation. Hence, these two technical contentions will not lie and the appeal is dismissed. J.B.Koshy Judge Thomas P. Joseph Judge vaa M.A.C.A. No. 2396/2008 3 J.B. KOSHY AND THOMAS P.JOSEPH,JJ. ------------------------------------- M.A.C.A. No. 2396/2008 ------------------------------------- Judgment Date:17th November,2008