IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 MACA.No. 231 of 2008() ---------------------- OPMV.610/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANTS/PETITIONERS ------------------------------------ 1. MINI, W/O.LATE SABU, KUMMANNUR VEETTIL DYMOCK KARA, DYMOCK PUTHUVEL, PERIYAR VILLAGE PEERMEDU TALUK, IDUKKI DIST. 2. CLAUDAI @ MARY, D/O.LATE SABU, MINOR (DATE OF BIRTH 14/4/'94) REPRESENTEED BY HER MOTHER AND GUARDIAN MINI, W/O.LATE SABU KUMMANNUR VEETTIL, DYMOCK KARA, DYMOCK PUTHUVEL PERIYAR VILLAGE, PEERMEDU TALUK, IDUKKI DIST. 3. THRESSIAMMA @ CLOUSIA, D/O.LATE SABU MINOR (DATE OF LBIRTH 28/9/'97) REPRESENTED BY HER MOTHER MINI, W/O.LATE SABU, KUMMANNUR VEETTIL, DYMOCK KARA, DYMOCK PUTHUVEL PERIYAR VILLAGE, PEERMEDU TALUK. 4. JOSEPH, S/O.JOSE KUMMANNUR VEETTIL, DYMOCK KARA, DYMOCK PUTHUVEL PERIYAR VILLAGE, PEERMEDU TALUK. 5. MARIYAMMA, W/O.JOSEPH KUMMANNUR VEETTIL, DYMOCK KARA DYMOCK PUTHUVEL, PERIYAR VILLAGE PEERMEDU TALUK. BY ADV. SRI.T.V.GEORGE SRI.K.N.BALACHANDRA KAIMAL MACA.NO.231/08 RESPONDENT(S): RESPONDENTS -------------------------- 1. JINNA, S/O.CHENIAPILLAI M.C.A. VEETTIL MANNANKAL BHAGAM, KUMBAZHA KARA PATHANAMTHITTA VILLAGE (DRIVER) PATHANAMTHITTA DIST. 2. SHAMSUDHIN, S/O.HASSANKANI "SHAMSUDHIN MANZIL", KANNAMKARA PATHANAMTHITTA VILLAGE (OWNER) PATHANAMTHITTA DIST. 3. SUMESH, S/O.THANKAPPAN, KILLICKAL HOUSE MALLARADI KARA, MELAPURATTU, PERIYAR VILLAGE (DRIVER), PEERMEDU TALUK, IDUKKI DIST. 4. VARKEY, S/O.DEVASSIA, PUNNATHARA HOUSE PASUMATHI ATTORAM, VANDIPERIYAR (OWNER) PEERMEDU TALUK, IDUKKI DIST. 5. NATIONAL INSURANCE CO.LTD., KOTTAYAM. 6. THE NEW INDIA ASSURANCE CO.LTD. KOTTAYAM. ADV. SRI.N.S.MOHAMMED USMAN FOR R6 SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.231 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of March, 2010 JUDGMENT Basheer, J. A young widow , her two minor children and the parents of her deceased husband have filed this appeal calling in question the legality and propriety of the award passed by the Motor Accidents Claims Tribunal, Thodupuzha. 2. By the impugned award, the Tribunal found that drivers of the two jeeps involved in the accident were negligent in causing the accident. But, at the same time, the Tribunal held that the victim had also contributed to the accident, as the evidence on record clearly established that he was traveling on the rear foot board of the jeep. Therefore, the Tribunal directed that the contributory negligence of the deceased be fixed at 1/3rd and that the two insurance companies do pay 1/3rd each of the amount of compensation of Rs. 2,87,950/-. In other words, the appellants were found entitled to get only a sum of Rs. 1,91,966/- after deducting 1/3rd towards the alleged contributory MACA.No.231/08 Page numbers negligence on the part of the deceased. 3. Admittedly deceased Sabu who had been working as a coolie was travelling in a jeep bearing Reg.No.KRQ/2710 which was proceeding from Periyar to Anakuzhy. When the jeep reached at Nellimala, another jeep bearing Reg.No.KL-3B/786 coming from the opposite direction dashed against each other. The deceased sustained fatal injuries to which he succumbed on the same day itself on the way to the hospital. 4. The claim petition was filed before the Tribunal alleging that negligence on the part of the two drivers was responsible for the accident. The two insurance companies which contested the claim petition, while denying the allegation of negligence on the part of their respective drivers, alleged that the deceased himself was responsible for the accident since he had been travelling on the foot board on the rear side of the jeep which he was not supposed to do. Ext.A1 First Information Report given by PW2 before the Police was pressed into service for this purpose. However, PW2 while examined in court on the side of the claimants asserted that the deceased was in fact sitting MACA.No.231/08 Page numbers inside the jeep and was not standing on the foot board on the rear side as stated by him in Ext.A1 FIR. The Tribunal disbelieved PW2 and placed reliance on Ext.A1. The Tribunal held that the deceased had also contributed to the accident by travelling in the jeep standing on the rear foot board. The share of contributory negligence on the part of the deceased was fixed at 1/3rd and that of the two drivers was fixed at 1/3rd each. 5. Learned counsel for the appellant submits that the reasoning and conclusion made by the Tribunal cannot be sustained at all since the deceased was admittedly a passenger in the jeep. Even assuming the deceased was standing on the rear foot board, it cannot, by any stretch of imagination, be said that he had in any way contributed to the accident as such and, it has to be held that the accident occurred for the simple reason that the two drivers of the vehicles were rash and negligent while driving their respective vehicles. 6. We find considerable force in the above contention. It has to be remembered that the common man while commuting, will some MACA.No.231/08 Page numbers how try to get into any vehicle which is available to him. Commuters travelling on foot boards of passenger buses in towns and cities is not an uncommon sight. In suburban trains we find commuters travelling even on top of them. We are not trying to legitimise or justify the desperate bid of the commuters to reach their destinations. But we are only stressing the fact that a desperate commuter may try to make use of any mode of transportation that is available to him to reach his destination. This is particularly so in interior villages where transportation facilities are scarce. In that view of the matter even if deceased Sabu had stepped on to the rear foot board available on the jeep to reach his destination, it cannot be said that he was negligent. In fact, it should have been the responsibility of the owner and driver of the jeep concerned to take care that no passenger is allowed to resort to such a seemingly hazardous or dangerous mode. For their failure, the family of the poor victim cannot be penalised. 7. Sri.Jayasanker, learned counsel for respondent No.5 vehemently contended that the award calls for no interference at the hands of this court especially since the Tribunal has, after assessing the MACA.No.231/08 Page numbers evidence available on record, come to the right conclusion that the deceased has also contributed to the accident to the extent of 33%. He points out that there was equal responsibility on the passenger of a transport vehicle to ensure that he does not expose himself to any risk or accident. Even assuming the negligence of the two drivers resulted in the head on collision , the deceased might not have sustained such fatal injuries, if he were sitting inside the jeep as a passenger. He was thrown out of the jeep only because he was standing on the rear foot board. Therefore the deceased has to be solely held responsible for the accident, it is contended by the learned counsel. 8. We are unable to agree. The aim and object of a social welfare legislation like payment of compensation to the victims of accident has to be kept view, even if we consider the general principles governing tortious liability. There can be no room for any doubt that the contention now raised by the insurance company cannot be countenanced. 9. Learned counsel for respondent No.6, the other Insurance Company, has also adopted the same line of argument. It is contended MACA.No.231/08 Page numbers by Smt.Priya Devi that the Tribunal was justified in deducting 1/3rd of the compensation from the amount quantified by it. 10. Having considered the rival contentions of the parties, we have no hesitation to hold that the finding of the Tribunal that the deceased victim had contributed to the accident cannot be sustained at all. Therefore, the said finding is set aside. It is held that the drivers of the two vehicles which were involved in the accident and which stood insured with respondents 5 and 6, were wholly responsible for the accident. It has come out in evidence that it was a head on collision and the front side of the two vehicles had been badly damaged. It is true that the deceased was thrown off the jeep because of the impact of the collision. If the two drivers were cautious and careful, the collision might not have taken place. In that view of the matter, it is held that the two insurance companies are liable to share the burden in the ratio of 50:50. 11. Coming to the quantum of compensation, it may at once be noticed that the deceased was aged only 28 at the time of the accident. He was admittedly a coolie. The appellants had claimed that deceased MACA.No.231/08 Page numbers was earning Rs. 2500/- per month. However, the Tribunal reckoned his daily earnings as Rs. 60/-. Thus calculated , his monthly income was fixed at Rs. 1800/- . 1/3rd was deducted from the total income. Applying 18 as the multiplier, the total compensation for loss of dependency was fixed at Rs. 259,200/- . In addition to the above Rs. 10,000/- was awarded to appellant No.1( widow) towards loss of consortium. A sum of Rs. 10,000/- was awarded to the two children towards loss of love and affection. A sum of Rs. 3,000/- was awarded towards pain and suffering also, apart from Rs. 5,000/- towards funeral expenses. Thus the total compensation payable was reckoned as Rs. 2,87,950/-, as stated earlier. 12. It is not in dispute that appellant No.1 was aged 23 at the time when the tragedy befell and she was carrying her second child in her womb at the time of the accident. The first child was aged 3 years when the cruel fate snatched away his young father from him. 13. Having regard to the entire facts and circumstances, we are satisfied that the monthly income of the deceased has to be reckoned as Rs. 2,000/- per month and the loss of dependency has to be recalculated MACA.No.231/08 Page numbers as hereunder : Rs. 2,000/- x 12 x 18 = Rs. 4,32,000/- 14. Similarly, compensation for loss of love and affection to the entire family has to be enhanced from Rs.10,000/- to Rs. 30,000/-. No modification is warranted as regards the compensation awarded under the other heads. 15. It is vehemently contended by the learned counsel for the two Insurance Companies that the Tribunal has already awarded interest @ 12% which by any standards is very high and exorbitant. It is further pointed out that this appeal was filed with a delay of 2227 days. Keeping in view of the above aspects, we are satisfied that the enhanced compensation shall carry interest only @ 7% per annum and that too from the date of filing of this appeal i.e. November 14, 2007. The Appeal is disposed of as above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.231/08 Page numbers