IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 MACA.No. 1418 of 2005() ----------------------- OPMV.1309/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANTS/PETITIONERS: ------------------------------------- 1. OMANA, W/O. DECEASED BHASKARAN, THEKKEDATH HOUSE, MUDAVOOR KARA, MUDAVOOR P.O., VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK. 2. SATHEESAN, S/O. DECEASED BHASKARAN, THEKKEDATHU HOUSE, MUDAVOOR KARA, VELOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK. 3. AJITHA, D/O. DECEASED BHASKARAN, THEKKEDATHU HOUSE, MUDAVOOR KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK. 4. VIJAYAN ALIAS SUKUMARAN, S/O. DECEASED BHASKARAN, THEKKEDATHU HOUSE, MUDAVOOR KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.SHAJI JOSEPH RESPONDENT(S): RESPONDENTS: --------------------------- 1. P.M. KABEER, S/O. MYTHEEN, PARAMBIL HOUSE, PAZHACKAPPILLY KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK. 2. SURENDRAN P.K., S/O.KUNJU NEELANDAN, PARACKAL HOUSE, KUNNACKAL P.O., VALAKAM, MUVATTUPUZHA. 3. THE NATIONAL INSURANCE COMPANY LTD., KOLENCHERRY BRANCH, POST BOX NO.6, MEDICAL MISSION JUNCTION, KOLENCHERRY P.O., PIN-682 311. ADV. SRI.E.M.JOSEPH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1418 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of October, 2010 JUDGMENT Barkath Ali, J. Appellants are the claimants in O.P.(MV)No.1309/2001 on the file of Motor Accidents Claims Tribunal, Muvattupuzha, who are the widow and children of deceased Bhaskaran who allegedly died in a motor accident that occurred on November 30, 2000 at Vazhappilly on the M.C. road. 2. They filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 4,00,000/- alleging that while the deceased was walking along the road, he was knocked down by the autorickshaw bearing Reg.No.KL-7/U-1360 driven by the first respondent, that Bhaskaran succumbed to the injuries sustained while undergoing treatment in the hospital and that the accident occurred due to the negligence of the first respondent. 3. Respondents 1 and 2, the driver and the owner of the offending autorickshaw remained absent before the Tribunal. The third MACA.No.1418/2005 2 respondent, the insurer of the offending autorickshaw filed a written statement admitting the policy, but denied the accident. 4. Pws 1 and 2 were examined and Exts.A1 to A7 and Ext.X1 were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting third respondent. On an appreciation of evidence, the Tribunal found that the claimants have failed to prove the accident and dismissed the O.P. The claimants have now come up in appeal challenging the said finding of the Tribunal. 5. Heard the counsel for the appellants/claimants and the counsel for the Insurance Company. 6. The following points arise for consideration : 1) Whether any accident happened as alleged by the appellants/claimants ? 2) Whether the appellants/claimants are entitled to any compensation from the respondents. If so, what is the quantum ? Point No.1 7. The claimant examined PW 1 and PW 2 and produced Exts.A1 to A7 and Ext.X1 to prove the accident. PW1 is the MACA.No.1418/2005 3 occurrence witness and PW2 is the then Sub Inspector of Muvattupuzha police station, who investigated the case and filed the charge sheet before the Magistrate court. The police has charged the case against the first respondent. The Tribunal disbelieved the evidence of Pws 1 and 2. PW1, the occurrence witness gave a consistent version regarding the accident. He would say that deceased Bhaskaran was walking in front of him and at that time, the offending autorickshaw knocked him down. Himself , the driver of the autorickshaw and the passenger in the autorickshaw took the deceased to the hospital. Nothing was brought out during his cross examination to discredit his evidence. The Tribunal disbelieved his evidence mainly on the ground that in the copy of the wound certificate produced by the claimants, the doctor has stated that deceased was brought by one Kabeer. First respondent is the said Kabeer which probabilise the version of PW1 that himself and the driver of the autorickshaw took the deceased to the hospital. It is seen from Ext.X1, the case diary produced from the police station that PW2, the Inspector who investigated the case has questioned PW1 and recorded his statement. MACA.No.1418/2005 4 That apart, he has also recorded the statement of first respondent who is the accused in that case, who has admitted the accident . On the other hand, there is no evidence adduced on the side of the contesting third respondent before the Tribunal to show that no such accident happened. First respondent, the driver of the offending autorickshaw remained absent before the Tribunal. 8. For all these reasons, we are of the view that the finding of the Tribunal that the claimants have failed to prove the accident cannot be sustained. The evidence adduced on the side of the claimants proves beyond doubt that on November 30, 2000 at Vazhappilly, deceased Bhaskaran was knocked down by the offending autorickshaw driven by the first respondent and that he subsequently succumbed to the injury sustained. Point No.2 9. The next question for consideration is whether the claimants are entitled to any compensation; if so, what is the quantum. Counsel for the Insurance Company submitted that the case has to be remanded to the Tribunal to decide afresh the question of negligence as MACA.No.1418/2005 5 well as the question of quantum of compensation to which the claimants are entitled to. The accident is of the year 2000. Therefore, we are not inclined to send back the case to the Tribunal. Even if negligence on the part of the first respondent is not proved, as it is proved that the offending autorickshaw was involved in the accident, the claimants are entitled to compensation as provided under Section 163 A of Motor Vehicles Act. Therefore, we treat this application as one under Section 163 A of Motor Vehicles Act. 10. The deceased was a barber as testified by PW1 before the Tribunal which is not seriously disputed. Therefore, we feel that his monthly income can be reasonably fixed at Rs. 2,000/-. After deducting 1/3 for his personal expenses, the balance amount of Rs. 16,000/- per annum can be taken as his annual contribution to his family. He was aged about 60 at the time of the accident. Therefore, we feel that a multiplier of 11 would be reasonable as provided under the Second Schedule to Motor Vehicles Act. Thus calculated for the loss of dependency, the claimants are entitled to a compensation of Rs. 1,76,000/- ( 16,000 x 11). The claimants are also entitled to MACA.No.1418/2005 6 Rs. 2,500/- for loss of estate, Rs.2,000/- for funeral expenses and Rs. 1,500/- for medical expenses. In the result, the appeal is allowed. The claimants are found entitled to a compensation of Rs. 1,82,000/- . They are entitled to interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. 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 the copy of this judgment. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1418/2005 7