IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 MFA.No. 641 of 2002(C) ---------------------- OPMV.9/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PARAVUR .................... APPELLANTS/PETITIONERS :- ----------------------------- 1. KOMALA, W/O. VIDYA SAGARAN, MADATHIL HOUSE, OCHANTHURUTHU KARA, PUTHUVYPPU VILLAGE, KOCHI TALUK. 2. INDULEKHA, W/O. SUDHARMAN, THATTARUPARAMBIL, PUTHUVYPPE KARA, PUTHUVYPPE VILLAGE, KOCHI TALUK. 3. SHYLA, W/O. RAJAN, PAZHAMPILLISSERY, KOTTUVALLYKAD KARA, MOOTHAKUNNAM VILLAGE, PARAVUR TALUK. 4. RAJAPPAN, S/O. SUBRAN, ANATTU HOUSE, OCHANTHURUTHU KARA, PUTHUVYPPE VILLAGE, KOCHI TALUK. 5. MONY, W/O. RAVI, KUTHIRAVATTATH HOUSE, MANAKKAPADY DESOM, KARUMALLUR VILLAGE, PARAVUR TALUK. 6. SHAJI, S/O. SUBRAN, ANATTU HOUSE, THIRUVANKULAM KARA, THIRUVANKULAM VILLAGE, KANAYANNUR TALUK. 7. BABY, W/O. RAJAN, VALIYAVEETTIL HOUSE, AYYAMPILLY KARA, KUZHUPPILLY VILLAGE, KOCHI TAULK. 8. RANJAN, S/O. SUBRAN, ANATTU HOUSE, OCHANTHURUTH KARA, PUTHUVYPPE VILLAGE, KOCHI TALUK. BY ADV. SRI.T.H.ABDUL AZEEZ SRI.K.P.MAJEED MFA.No. 641 of 2002(C) RESPONDENTS/RESPONDENTS :- ---------------------------------- 1. SUBRAMONIAN, S/O. PARAMESWARAN, PAZHUPARAMBIL HOUSE, VALLUVALLY, KOTTUVALLY VILLAGE, PARUR TALUK. 2. K.S. KUNJU, S/O. SANKARAN, KALAPPASSERY HOUSE, NAYARAMBALAM VILLAGE, KOCHI TALUK. 3. THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, 1ST FLOOR, ENSLAN BUILDING, M.G. ROAD, KOCHI-682 011. 4. SASI, S/O. PADMANABHAN, THANNIKKAL VEETIL, OCHANTHURUTHU, PUTHUVYPPU VILLAGE, KOCHI TALUK. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) SC - R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & P.N.Ravindran, JJ. ===================== M.F.A.No.641 of 2002 ===================== Dated this the 2nd day of June, 2008. JUDGMENT Koshy,J. A 32 year old youngster, who was a Sub Organiser of M/s. Peerless General Finance Investments Company, while travelling as a pillion rider sustained injuries, when the motor cycle collided with a bus, KRP 8247 driven by the first respondent, owned by the second respondent and insured by the third respondent - Insurance Company. The motor cycle in which he was travelling was driven by the fourth respondent. PW2 deposed that the accident occurred due to the negligence of the first respondent. Ext.A1 charge sheet also shows that the accident happened due to the rash and negligent driving of the first respondent. But the Tribunal, on the basis of the scene mahazar alone found that the fourth respondent was negligent and since no amount was claimed by the petitioner under Section 166 of the Motor Vehicles Act, the claim was dismissed. But MFA 641/02 -: 2 :- compensation of Rs.50,000/- was awarded under Section 140 of the Act. 2. During the pendency of the claim petition, the first claimant - mother died. The findings of negligence as well as the quantum of compensation are disputed by the appellants. Merely on the basis of the scene mahazar, one cannot say that there was negligence on the part of the driver especially it was prepared after the incident, especially when the bus hits with a motor cycle due to the impact of the accident the original position of the motor cycle will change. The Apex Court in Bijoy Kumar Dugar v. Bidyadhar Dutta & Ors - A.I.R. 2006 S.C. 1255 held that in a case of head on collision in highway in the absence of clear evidence negligence can be attributed equally on the drivers. Here, PW2 deposed that the accident occurred due to the negligence of RW1. But the scene mahazar would show that the motor cycle was also driven not on the correct side. In these circumstances, we are of the opinion that the negligence can be apportioned between both the drivers. 3. With regard to the quantum of compensation, even though the mother was a claimant, she died during the pendency MFA 641/02 -: 3 :- of the claim petition. Claimants 2 to 9 are brothers and sisters of the deceased. All of them were younger to the deceased. All the claimants were married except the 9th claimant. It is the case of the claimants that being an unmarried member of the family, he is looking after his family as the father already expired. All these circumstances were taken into account by the Tribunal and fixed his monthly income as Rs.2,500/- and considering the nature of the dependency only Rs.1770/- was fixed as loss of earning for the purpose of calculating compensation. We see no ground to change the same. But we are of the view that since the mother's age at the time of the accident was not proved and since he was 32 only lowest multiplier of 5 can be adopted and therefore the compensation payable will be Rs.1,06,200/- (1770x12x5) instead of Rs.70,800/- fixed by the Tribunal. 4. The Tribunal fixed Rs.10,000/- for pain and suffering and for loss of love and affection Rs.7,000/- was awarded. For treatment Rs.200/- was allowed, for transportation Rs.1,000/- was allowed and Rs.5,000/- was awarded for funeral expenses. We are not changing the above amounts awarded by the Tribunal. Therefore, the total compensation that can be MFA 641/02 -: 4 :- calculated will be Rs.1,29,400/-. The first respondent is attributed only 50% negligence. The liability of the first respondent and vicarious liability of the second respondent and consequential liability of the third respondent - Insurance Company is only Rs.64,000/-. The Tribunal has allowed Rs.50,000/- under Section 140 of the M.V. Act. Therefore additional amount payable is Rs.14,000/-. The above amount of Rs.14,000/- should be deposited by the third respondent - Insurance Company with 7% interest from the date of application till its deposit over and above the amount awarded by the Tribunal. On deposit of the amount, the claimants are allowed to withdraw the same at the proportion fixed by the Tribunal. The appeal is partly allowed. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 3/6