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 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 MFA.No. 1385 of 2001() ------------------------------- OPMV.1114/1995 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANT/1ST RESPONDENT IN O.P.(MV): --------------------------------------------------------------- THE MANAGING DIRECTOR, K.S.R.T.C, THIRUVANANTHAPURAM. BY ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC RESPONDENTS/APPLICANTS & 2ND RESPONDENT IN O.P.(MV): ------------------------------------------------------------------------------------------- 1. V.S.PREMA, VELLANGAL, THIRUMARADY VILLAGE, THIRUMARADY.P.O., ERNAKULAM DISTRICT. 2. HARIKRISHNAN (MINOR) AGED 1.1/2 YEARS, RESIDING AT VELLANGAL, THIRUMARADY VILLAGE, THIURMARADY.P.O., ERNAKULAM DISTRICT. (MINOR REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN V.S.PREMA, 1ST APPLICANT) 3. V.B.GOPALAKRISHNAN, S/O.GOVINDAN, DRIVER, ERATTUPETTAH DEPOT, ERATTUPETTAH, RESIDING AT URUBANAKATTIL HOUSE, PALACKATTILMALA.P.O., KOTTAYAM DISTRICT. ADV. SRI.P.R.GOPALAKRISHNAN FOR R1& R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/09/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO.9216/2001 IN MFA. NO.1385/2001 DISMISSED 01/09/2008. SD/- J.B.KOSHY, JUDGE SD/- THOMAS P.JOSEPH, JUDGE //TRUE COPY// P.A. TO JUDGE Rs/ J.B.KOSHY & THOMAS P.JOSEPH, JJ. -------------------------------------- M.F.A.No.1385 OF 2001 ------------------------------------- Dated 1st September, 2008 JUDGMENT Koshy,J . This appeal is filed by the owner of the offending bus namely the Kerala State Road Transport Corporation. A driver employed in Mahatma Gandhi University, Kottayam while driving the official car of the Pro-Vice Chancellor of the University, met with an accident when a bus owned by the appellant collited with it and the driver died in the accident. The deceased driver was aged only 34 years and he was getting a salary of Rs.3,000/= per month. His wife was aged 33 years and child was aged 1½ years. They claimed a total compensation of Rs.10,00,000/=. The Tribunal awarded only Rs.2,82,200/= as compensation. The major contention raised by the appellant is that finding of negligence on the driver of the vehicle owned by the appellant was not correct as the car was on the wrong side. This question was considered by the Tribunal elaborately after perusing the documentary evidence as apart from the police charge, no independent evidence was adduced by both sides regarding the cause of accident. The Tribunal held as follows: MFA.1385/2001 2 “6. As evidenced by Ext.A2 scene mahazar, the place of hit was 3 mts. east of the western tar end of the road, which was having a width of 7.40 mts. from its tarred portion. As borne out by Ext.A6 police charge the bus was proceeding from south to north and the car, in the opposite direction. Going by the scene mahazar the place of hit was therefore on the western half portion of the road, which was the wrong side of the car. But the place of collision as noted in the scene mahazar alone is not decisive in a case like this. The crime registered by the police was investigated and the second respondent, who was driving the bus was prosecuted for the offences under secs.279 and 304(A) IPC. Ext.A6 is the copy of the police charge. If the result of investigation as borne out by Ext.A6 police charge is anything to go by, the car driver was confused on seeing the bus coming through the wrong side of the road in enormous speed. As per the police charge the car driver took his vehicle to the western side of the road with a view to avoid a head-on collision with the bus, but the bus driver all on a sudden changed his mind and swerved the bus to the western side of the road, with the result the place of collision happened to be on the wrong side of the car. As I mentioned at the outset, no independent evidence is forthcoming to prove the occurrence. Therefore this tribunal has necessarily to depend on the records in the criminal case. As pointed out by the learned counsel for the petitioners, the investigation conducted by the police was an official act and it must be presumed to have been done in good faith. Ext.A6 police charge is prima facie indicative of the case of the petitioners that the accident was due to the negligence of the second respondent.” The Tribunal did not believe the evidence of RW1, driver of the appellant as it is self serving and the driver of the appellant MFA.1385/2001 3 Corporation also in cross examination deposed that he was involved in other accident cases also and after considering that the Tribunal held that the negligence can be attributed to the driver of the appellant's bus. Driver of the bus, though a party to the case did not file any appeal. The Tribunal also found that the monthly salary of the deceased driver was Rs.3,160/=. No amount was granted for future prospects. A driver of the University will get yearly increments as well as benefits of wage revisions as per the Pay Commission Reports. But, the Tribunal has taken only Rs.1,800/= as the monthly contribution and only 12 was taken as the multiplier. The deceased was aged only 34 years. The Supreme Court held that except in exceptional circumstances, the second schedule should be taken as guidelines for fixing compensation even in claims under section 166. Going by the second schedule, the apt multiplier will be 17. But, the Tribunal has taken only 12 as the multiplier. Therefore, even if a small percentage of contributory negligence is fixed on the part of the car driver, the total compensation will make no difference. The compensation granted under other heads are also very meagre. For loss of love and affection and parental care to the child aged 1½ years, only Rs.5,000/= was awarded. It is stated that for pain and suffering of the first claimant wife, Rs.10,000/= was granted, that is for loss of consortium. But, that is too meagre considering the age of MFA.1385/2001 4 the wife (53) as at the young age she became a widow and the 1½ year old child lost the father. Considering the totality of the circumstances, we are of the view that only just and reasonable compensation was awarded and no interference is required in the impugned award. The appeal is dismissed. J.B.KOSHY JUDGE THOMAS P. JOSEPH JUDGE tks