IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 MACA.No. 1898 of 2006() ----------------------- OPMV.195/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PARAVUR .................... APPELLANT/3RD RESPONDENT: ----------------------- THE NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE, MAIN ROAD, NORTH PARUR POST, ERNAKULAM DISTRICT. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: CLAIMANTS: ------------------------- 1. K.V. PUSHPA, W/O.K.V.VENURAJAN, KOMANDY HOUSE, ELAMKUKNNAPUZHA POST, KOCHI TALUK, ERNAKULAM DISTRICT. 2. K.V. AMALRAJ, AGED 13 (MINOR), S/O. K.V.VENURAJAN -DO-. 3. K.V.ANILRAJ, AGED 8 (MINOR), S/O. K.V.VENURAJAN -DO-. 4. KARTHYAYANI, AGED 72 YEARS, W/O. P.K.VELAYUDHAN, KOMANDI HOUSE -DO-. (RESPONDENTS 2 AND 3 MINORS REPRESENTED BY FIRST RESPONDENT MOTHER AND NATURAL GUARDIAN K.V.PUSHPA, W/O.VENURAJAN). ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) FOR R1 TO 4 SRI.MATHEWS V.JACOB (PARAVUR) FOR R1 TO 4 SRI.N.T.NANDAKUMAR (PARAVUR) FOR R1 TO 4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 5/06/2009, ALONG WITH MACA NO.224 OF 2007 THE COURT ON 10.6.2009 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. ---------------------------------------------- M.A.C.A. No.1898 of 2006 & M.A.C.A. No.224 of 2007 --------------------------------------------- J U D G M E N T Dated this the day of June, 2009. Abdul Rehim,J. 1. The 3rd respondent before the Motor Accident Claims Tribunal, N. Paravur in O.P.(MV).194/2002 and 195/2002 is the appellant in both these appeals. The challenge is against the common Award. The accident happened on 19.1.2002, when a Bus hit on a scooter driven by the husband of the 1st respondent in MACA.1898/06 (sole respondent in MACA.224/07). The 1st respondent was its pillion rider. The rider of the scooter died in the accident, while the 1st respondent sustained injuries. MACA.1898/06 is against award in O.P.(MV).195/02 filed claiming compensation with respect to the death of the rider, by his wife, mother and two minor children. MACA.224/07 is against award in O.P(MV).194/02 filed claiming compensation with respect to injuries sustained to the 1st respondent, wife of the deceased. The challenge against the common award is on the grounds that the findings with respect to the negligence aspect is erroneous and quantum awarded in both the cases are MACA.1898/06 & 224/07 2 excessive. 2. Heard Adv.Rajan P. Kaliyath, learned standing counsel appearing for the appellants, and Adv.G. Balamuraleedharan, learned counsel appearing for the respondents. The appellant contended that the accident occurred solely due to the negligence of the deceased, who was riding the scooter in a rash and negligent manner. Records of the criminal case registered with respect to the accident, like scene mahazar, wound certificate, postmortem certificate, charge sheet, etc. were produced and marked in evidence, which will reveal that the accident occurred only due to negligence on the part of the Driver of the Bus. The 1st respondent, who sustained injuries in the accident, when examined as PW1 gave evidence in full support of the version in the police records. The learned counsel for the appellant relying on the descriptions in Ext.A2 regarding the scene of occurrence, vehemently contended that rider of the scooter was on its wrong side. But on a perusal of the scene mahazar it is not decernable with any accuracy about the actual spot of the accident. He further contended that the rider of the scooter was negligent in as much as he was not wearing head gear at the time of accident. But it is pertinent to note that inspite of a contention in the written statement to the effect that the accident occurred due to negligent driving of the scooter by MACA.1898/06 & 224/07 3 the deceased, the appellant did not adduce any oral or documentary evidence to dispute correctness of the police records or to prove negligence on the part of the deceased in any manner. There is also no evidence adduced, either oral or documentary, to show that the deceased was not wearing head gear at the time of accident. Hence on an active consideration of the entire evidence on record we are not in a position to agree with the appellant that the findings of the Tribunal on the aspect of negligence is in any way illegal or erroneous. 3. The next contention is with respect to quantum of compensation awarded. OP(MV).195/02 is the claim for compensation with respect to death of the rider of the scooter. The deceased was an employee in the Local Fund Audit Department of the State Government, aged 43 years at the time of accident. Ext.A8 salary certificate and Ext.B1 certificate showing deductions in the salary, revealed that the net salary (take home salary) of the deceased was Rs.7,279/-. From Ext.A9 certificate his future prospects in service is evident. His date of superannuation is 30.4.2014 and it is stated that, if he would have continued in service he could have reached the level of Deputy Director (Higher Grade) which is under the pay scale of Rs.10,000/- to 15,150/-. The Tribunal while computing compensation for the loss of estate and dependency, adopted his MACA.1898/06 & 224/07 4 present monthly income of Rs.7,279/- and multiplier as 15. According to the appellant the Tribunal failed in not making deductions for his personal expenditure. The further contention is that the Tribunal ought to have taken multiplicant at the above said rate only for a period of 12 years, since he had left with service only for 12 years. In other words, calculations made for the entire period of 15 years on the basis of the present salary is erroneous. On an active consideration of the contentions, we feel that non-deduction of any amount on account of personal expenditure is in fact not an omission. The Tribunal had taken note of the contentions of the claimants for taking into consideration of future prospects in service, for the purpose of fixing the multiplicant. The Tribunal had also taken note of the decision reported in 1992 (1) KLT 587 in this respect. The Tribunal had clearly observed that the future prospects of the deceased is well evidenced from Ext.A9 certificate. Therefore we are of the opinion that the non-deduction of any amount for personal expenditure and computation of income for the entire multiplier of 15 years, are of no relevance and consequence, since the Tribunal has given no weightage for the future prospects and increase in the income while fixing the multiplicant. Therefore, we do not find any reason to make deductions in the amount of Rs.13,10,220/- awarded under the MACA.1898/06 & 224/07 5 head of loss of estate and dependency. Various amounts awarded under other heads are also quite reasonable. Hence, we are not pursued with the contentions of the appellant for interfering with the quantum of award. 4. With respect to OP(MV).194/02 from which MACA.224/07 arises, the claimant had sustained contusion and haematoma on her right forehead and eye lid, along with bleeding through both ears, and fracture of medial wall of right orbit. There are other injuries sustained on her right palm and on right patellar region. The claimant is working in Bharat Sanchar Nigam Ltd. She had availed leave of 148 days, as evidenced by Ext.A7 certificate. Under these circumstances we do not feel that the total amount of Rs.15,750/- awarded by the Tribunal is in any way unreasonable or excessive. Under the above circumstances we do not find any illegality or error in the impugned awards. Accordingly both the appeals are devoid of any merit and are dismissed. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb