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 30TH AUGUST 2010 / 8TH BHADRA 1932 MACA.No. 451 of 2005() ---------------------- OPMV.1243/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANT(S): APPELLANTS/PETITIONERS IN OPMV -------------------------------------------- 1. SREEMATHI AMMA P., W/O.RAVI @ RAJAGOPALAN NAIR, SREE BHAVAN, AVANEESWARAM, R.S.P.O, MANJAKKALA, THALAVOOR VILLAGE, PATHANAPURAM TALUK. 2. SREE RAJ, AGED 16 YEARS(MINOR), S/O.RAVI @ RAJAGOPALAN NAIR SREE BHAVAN, AVANEESWARAM, R.S.P.O,MANJAKKALA,THALAVOOR VILLAGE PATHANAPURAM TALUK, REP. BY SREEMATHI AMMA, W/O.RAVI @ RAJAGOPALAN NAIR, SREE BHAVAN, AVANEESWARAM, R.S.P.O, MANJAKKALA, DO.DO. 3. REJI NAIR, AGED 14 YEARS (MINOR), D/O.RAVI @ RAJAGOPALAN NAIR, REP. BY SREEMANI AMMA, W/O.RAVI @ RAJAGOPALAN NAIR SREE BHAVAN, AVANEESWARAM, R.S.P.O,MANJAKKALA, THALAVOOR VILLAGE, PATHANAPURAM TALUK. 4. KUTTAN PILLAI, S/O.NEELAKHANTTA PILLAI, SREE BHAVAN, AVANEESWARAM, R.S.P.O, MANJAKKALA, THALAVOOR VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.T.KURIAKOSE PETER SRI.ABRAHAM P.GEORGE RESPONDENT(S): RESPONDENTS IN OPMV ---------------------------------- 1. CLEMENT IRUDAYARAJ S., KISHUKKATHARA, KOLLEKARO, PALAKKAD. 2. V.RAJENDRAN, S/O.VEERAPPAN, SREE RENJINI VEEDU, THUKKANACKAL PALAYAM VILLAGE, THUKKANACKAL MURI. 3. THE BRANCH MANAGER, NEW INDIA INSURANCE CO. LTD., 28, R.G.STREET, COIMBATORE. ADV. SRI.LAL GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.451 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of August, 2010 JUDGMENT Barkath Ali, J. Appellants are the claimants in O.P.(MV)No.1243/1999 on the file of Motor Accidents Claims Tribunal, Punalur. They are the wife, children and father of deceased Rajagopalan Nair, who died in a motor accident that occurred on August 25, 1999 at about 1:00 p.m. near K.S.R.T.C. bus stand at Vaikom. The accident happened while the claimant was pillion riding on the motor cycle bearing Reg.No.KL A- 4878 along boat jetty-Valiyakavala public road, he was knocked down by the lorry bearing Reg.No.KRL-5277 driven by the second respondent. Deceased sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the Medical College Hospital, Kottayam after four days. He was aged 35 and as a contractor used to earn Rs. 5,000/- per month, according to the claimants. Claimants filed the O.P. before the Tribunal claiming a compensation of Rs. 6 lakhs alleging negligence against second MACA.No.451/2005 2 respondent. 2. Respondents 1 and 2, the owner and the driver of the offending lorry remained absent before the Tribunal. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy, but contended that there was also negligence on the part of the rider of the motor cycle. 3. PW1 was examined and Exts.A1 to A17 were marked on the side of the claimants. No evidence was adduced on the side of the contesting third respondent. On an appreciation of evidence, the Tribunal assessed a total compensation of Rs. 4,54,050/-, but awarded only Rs. 2,27,025/- finding that there was 50% contributory negligence on the part of the deceased. The claimant has now come up in appeal challenging the said finding of the Tribunal as well as the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the appellants/claimants and the Insurance Company. 5. The following points arise for consideration : 1) Whether the finding of the Tribunal that there was contributory negligence on the part of the MACA.No.451/2005 3 deceased as well as the rider of the motor cycle and thereby reducing the compensation to 50% can be sustained ? 2) Whether the claimants are entitled to any enhanced compensation ? Point No.1 6. The Tribunal found that there were two pillion riders on the motor cycle including the deceased and thereby found that there was 50% contributory negligence on the part of the deceased in the light of the decision reported in Tamil Nadu State Transport Corporation v. Abdul Salam ( 2003 (3) KLT S.N. page 123). It is true that there were two pillion riders including the deceased. Therefore definitely there was contributory negligence on the part of the deceased also. But the lorry came from behind and hit the motor cycle. If the lorry driver would have been more careful, he could have averted the accident. Therefore, we are of the view that negligence can be apportioned into 75% on the part of the lorry driver and 25% on the part of the deceased. That being so, the claimants are found entitled to 75% of the compensation assessed which comes to Rs. 3,40,538/-. MACA.No.451/2005 4 Point No.2 7. The next question for consideration is whether the claimants are entitled to any enhanced compensation. The break up of the compensation assessed is as under : Loss of dependency - Rs. 4,08,000/- Transport to hospital - Rs. 2,750/- Damage to clothing - Rs. 300/- Funeral expenses - Rs. 3,000/- Loss of consortium - Rs. 15,000/- Loss of love and affection - Rs. 10,000/- Pain and suffering - Rs. 15,000/- 8. The Tribunal took the monthly income of the deceased as Rs. 3,000/- and after deducting 1/3 for his personal expenses, took the balance amount of Rs. 2,000/- per month as his monthly contribution to his family and adopted a multiplier of 17 and assessed Rs. 4,08,000/- as compensation for loss of dependency. 9. Taking into consideration the age of the deceased and in the circumstances of the case, we feel that the compensation assessed by the Tribunal is just and reasonable. It follows that the claimants are not entitled to any enhanced compensation. 10. In the result, the claimants are found entitled to an MACA.No.451/2005 5 additional compensation of Rs. 113,513/-. They are entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the additional compensation awarded. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.451/2005 6