IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 MACA.No. 2001 of 2010() ----------------------- OPMV.2205/2005 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANTS/PETITIONERS ------------------------- 1. JESSY VARGHESE, AGED 39 YEARS, W/O.JIJO POULOSE, KAIPILLI HOUSE, KURUPPAMPADY P.O., MUDAKKARAI KARA, RAYAMANGALAM VILLAGE. 2. JOMY, AGED 9 YEARS, (MINOR), S/O.LATE JIJO POULOSE, DATE OF BIRTH 27/5/1996, REP. BY MOTHER AND NATURAL GUARDIAN JESSY VARGHESE W/O.JIJO POULOSE, KAIPILLI HOUSE,KURUPPAMPADY P.O. MUDAKKARAI KARA, RAYAMANGALAM VILLAGE. 3. POULOSE, AGED 63 YEARS, F/O.LATE JIJO POULOSE, KAIPPILLI HOUSE, KURUPPAMPADY P.O., MUDAKKARAI KARA, RAYAMANGALAM VILLAGE. 4. SARAMMA, AGED 58 YEARS, M/O.LATE JIJO POULOSE, KAIPPILLI HOUSE, KURUPPAMPADY P.O., MUDAKKARAI KARA, RAYAMANGALAM VILLAGE. BY ADV. SRI.K.SUNILKUMAR SMT.NIMISHA ARUN RESPONDENTS/RESPONDENTS:- --------------- 1. THE MANAGING DIRECTOR, K.S.R.T.C. THIRUVANANTHAPURAM-695001. 2. P.A.THOMAS, S/O.ABRAHAM, PALACKAL HOUSE, VADAKUMKARA, VAZHAPPILOLY VILLAGE, VEROOR-686 104. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RKC R.BASANT & N.K.BALAKRISHNAN, JJ. ----------------------------------------- M.A.C.A No.2001 OF 2010 ---------------------------------------- Dated this the 5th day of July, 2011 ORDER/JUDGMENT BASANT,J. C.M.Appl.No.2591 of 2010: This petition is to condone the delay of 78 days in filing the appeal. Respondents served. There is no appearance. We take a lenient view. Petition allowed. Delay condoned. M.A.C.A No.2001 OF 2010: 2. Claimants are the appellants. They are the wife, son and parents of a deceased person aged about 40 years. An amount of Rs.10,00,000/- was claimed as compensation. The Tribunal came to the conclusion that the claimant have suffered a loss of Rs.4,47,500/- as per the details given in paragraph 15 which is extracted below: Loss of dependency : Rs. 4,05,000/- Transportation expenses : Rs. 2,500/- Pain and suffering : Rs. 5,000/- Loss of love and affection : Rs. 15,000/- Funeral expenses : Rs. 2,500/- M.A.C.A No.2001 OF 2010 2 Loss of estate : Rs. 2,500/- Loss of consortium : Rs. 15,000/- ------------------- Total Rs.4,47,500/- ============ 3. However, the Tribunal took the view that there was contributory negligence on the part of the deceased who along with his wife, PW1 was travelling in a car at the time of the accident. He was the driver. The Tribunal apportioned the blame for the accident at 75% on the part of the second respondent and 25% on the part of the deceased. Accordingly, only 3/4th of the amount of loss was granted as compensation. 4. We have heard the learned counsel for the appellants. There was no appearance for the respondents. The learned counsel for the appellants assails the impugned award on the following specific grounds: 1. The finding that there was contributory negligence on the part of the deceased is totally unjustified. M.A.C.A No.2001 OF 2010 3 2. The monthly income of the deceased reckoned for the purpose of considering loss of dependency is unreal and inadequate. 5. We have considered these contentions. The K.S.R.T.C. bus driven by the second respondent and Maruti Zen car driven by the deceased were proceeding in opposite directions. The road at the seen of occurrence has a width of 7.40 meters. The accident took place at a spot 3.72 meters to the left of the right hand side kerb of the road. The deceased had thus swerved 2 centimeters to the right of the imaginary mid line. This was the sole reason that prompted the Tribunal to come to a conclusion that there was contributory negligence on the part of the deceased. The learned counsel for the appellants submits that this conclusion of the Tribunal is totally erroneous and unjustified. Merely because the spot of incident located in the scene mahazar is to a distance of 2 cms. to the right of the imaginary mid line, a ready and instant conclusion that the deceased was negligent should not have been drawn by the Tribunal, it is contended. It is further pointed out that the police, after investigation, have filed a charge sheet only M.A.C.A No.2001 OF 2010 4 against the second respondent. It is further pointed out that PW1 who was travelling along with the deceased had given evidence about the negligence on the part of the second respondent; whereas the first and second respondents had not chosen to adduce any evidence on the question of negligence. We are, in these circumstances, satisfied that there is merit in the challenge raised against the conclusion that there was contributory negligence to the extent of 25% on the part of the deceased. That finding of fact is not justified by the materials on record. We vacate that findings. We hold that the claimants are entitled to recover the entire loss suffered by them from respondent No.1 and 2. The first point is thus answered in favour of the appellants. 6. It is next contended that the deceased was earning an income of Rs.7,000/- per mensem. Reliance is placed on the salary certificate proved through PW2 that deceased was employed in Mumbai in an automobile work shop. The Tribunal has chosen to accept that the income of the deceased must have been only Rs.3,000/- per mensem. The Tribunal further came to the conclusion that Rs. 2,250/- per M.A.C.A No.2001 OF 2010 5 mensem must have been the contribution by the deceased to the family. 7. The learned counsel contends that the amount reckoned at Rs.3,000/- per mensem is too inadequate. He was employed in Mumbai. He was a qualified skilled worker. Taking all these circumstances into account the monthly income should have been reckoned as Rs.7,000/-, contends the counsel. 8. We have considered all the relevant inputs. We take note of the fact that the deceased was a skilled person employed in Mumbai. He was driving a car at the relevant time and was travelling along with his wife. The accident took place on 13.5.2005. We feel it is absolutely safe, in these circumstances, to conclude that the deceased can safely be assumed to earn an income of Rs.4,000/- per mensem. Even in the absence of better evidence that the conclusion appears to be reasonable. 9. The Tribunal had reckoned the contribution by the deceased to the family as 3/4th of the entire income earned by him. We are of the opinion that it is absolutely safe to conclude that 1/3rd of income M.A.C.A No.2001 OF 2010 6 must have been spend by the deceased in connection with the employment at Mumbai. Only 2/3rd of the remaining amount would have been available as contribution from the deceased. We are, in these circumstances satisfied, that the appellants are entitled for a higher amount of compensation under the head of loss of dependency. The following further amount is found to be due: Loss of dependency : Rs.75,000/- (4000x12x2/3x15=Rs.4,80,000/- minus Rs.4,05,000) 8. We come to the conclusion that the appellants are entitled to a total amount of Rs.5,22,500/- (Rs.4,47,500+Rs.75,000) (Rupees five lakh twenty two thousand and five hundred) as compensation. All other directions of Tribunal are upheld. 9. In the result: a. This appeal is allowed in part. b. The appellant are found entitled to a total amount of Rs.5,22,500/-(Rupees five lakh twenty two thousand and five hundred) along with interest as directed by the Tribunal and proportionate costs. M.A.C.A No.2001 OF 2010 7 c. The direction of the Tribunal regarding apportionment is upheld. R.BASANT, JUDGE N.K.BALAKRISHNAN, JUDGE mns