IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 MACA.No. 1728 of 2006() ----------------------- OPMV.3119/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANTS/CLAIMANTS: ----------------------------------- 1. SUSANIA SEENA SANTOSH, AGED 31 YEARS, W/O. LATE SANTHOSH, 55/2897, KATTUNILATH HOUSE, KURUSUPALLY ROAD, PERUMANOOR, KOCHI-682 015. 2. MEHUL, AGED 7 & 1/2 YEARS, S/O. LATE SANTHOSH, 55/2897, KATTUNILATH HOUSE, KURUSUPALLY ROAD, PERUMANOOR, KOCHI-682 015, REPRESENTED BY HIS GUARDIAN MOTHER, SUSANIA (FIRST PETITIONER). BY ADV. SRI.P.A.ABDUL JABBAR RESPONDENT(S): RESPONDENTS/ADDL.4TH RESPONDENT: ----------------------------------------------- 1. K.S. PRADEEP, S/O. SUNDARAM, PULIPARAMBIL HOUSE, VADUTHALA, COCHIN-23. 2. K.PONNU, S/O. KARUNAN, MANTHONIVEETTIL, NEAR CHINMAYA HIGH SCHOOL, PALLAVAR DESOM, PALLASSERY VILLAGE,CHITTOOR TALUK, PALAKKAD DISTRICT. 3. THE ORIENTAL INSURANCE COMPANY LTD., REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, MUTHOD TOWERS, M.G.ROAD, COCHIN-35. 4. BABY VIJAYAN, W/O. VIJAYAN, AGED ABOUT 54 YEARS, THALAPPALLI HOUSE, 10/1525, SOUTH THAMARAPARAMBU, FORT KOCHI. ADV. DR.ELIZABETH VARKEY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ALONG WITH MACA 1750/06 AND MACA 2066/2006 ON 07/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ M.A.C.A. NOS: 1728, 1750 & 2066 OF 2006 ----------------------------------------------------------------------------------- Dated this the 7th April , 2009. JUDGMENT RAMACHANDRAN NAIR, J. These connected appeals arise from the claim petitions filed by one Mr. Santhosh who was pillion rider in a two wheeler sustained injury in an accident that happened on 26.7.1997 and the claim petitions later filed by wife, child and parents of the very same person viz., Mr. Santhosh who later died in an accident that happened on 14.4.2000 while he was riding a bike which hit against a tempo van. During pendency of the claim petition filed by the injured he died in the second accident and, therefore, his wife and child are the appellants in the appeal filed for enhancement of compensation. Besides claim for enhancement of compensation there is dispute between the legal heirs of the deceased while the claim of the parents of the deceased that there is no proper marriage between the lady who filed claim petition as wife of the deceased. Different counsel appearing in different cases for the mother of the deceased have stated before Court that they have been asked to relinquish vakalath and they accordingly relinquished MACA 1728/2006 etc. 2 vakalath. However, no other counsel is engaged by the mother of the deceased. We have heard counsel appearing for the other parties and proceeded to dispose of the cases on merits. 2. So far as the compensation for the injury sustained by the deceased in the first accident is concerned we feel enhancement is called for expenses in the hospital for over a month and negligence is found by the MACT against the driver of the offending vehicle. However, since the injured later died in another accident and claim for enhancement of legal heirs are considered by us in the connected appeal we grant an additional compensation of Rs.25,000/- to the compensation already granted by the MACT in the claim case No: 3119/1997. 3. So far as the claim for enhancement of compensation by legal heirs of the deceased is concerned we feel enhancement is called for compensation awarded for loss of dependency because income fixed for the deceased is very low. Deceased was stated to employed as a supervisor and there is no evidence to the contrary. However he was stated to be an undergraduate. Therefore we fix the monthly income at Rs.3,000/- so that after leaving 1/3rd towards personal expenses there will be a net annual income of Rs.25,000/- for determining compensation for loss of dependency. MACA 1728/2006 etc. 3 This will entitle the claimants for a total compensation for loss of dependency at Rs.4,32,000/- as against Rs.3,45,600/- granted by the MACT. No other modification is called for to the award. 4. The next contention pertains to the disallowance of 20% towards contributory negligence. We do not find any justification to interfere with the order of the MACT for disallowance of 20% on account of contributory negligence because deceased admittedly was not wearing a head gear which is mandatorily required under Section 129 of the M.V Act. Besides this the accident happened at 1.40 in the night in a wide national highway and the collision is with a tempo van coming from the opposite direction. The MACT found contributory negligence by reference to scene of accident, damaged vehicle etc which do not warrant any interference. However, the 20% disallowance will be limited to the original compensation granted because we have granted additional compensation by taking into account contributory negligence as well. The last issue raised pertains to a dispute among the legal heirs. We do not think any interference is called for because admittedly the deceased was living with a lady and he got a child in such lady who is one of the claimants along with her. The mother of the deceased does not contends the paternity of the child and so much so it is immaterial MACA 1728/2006 etc. 4 whether there is a proper marriage or not for the lady and the child to claim compensation for the death of the person on whom they were admittedly dependents. Therefore we reject the contention of the mother of the deceased that the claimants are not wife and child of the deceased. The proportion in which the compensation awarded is quite equitable and therefore no interference is called for. The additional compensation also will be distributed among the legal heirs in the same ratio at which the original compensation is released by the MACT. We direct the insurance company concerned to deposit the additional compensation awarded by us with interest at 7 ½% per annum from the date of application till date of deposit. C.N. RAMACHANDRAN NAIR Judge K. SURENDRA MOHAN Judge jj MACA 1728/2006 etc. 5 K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: