IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1344 of 2004()
1. M/S. UNITED INDIA INSURANCE CO.LTD.,
... Petitioner
Vs
1. VELUTHAPARAMBIL SUHARA,
... Respondent
2. MOIDEEN S/O. VEERAVUNNI,
3. RAJANA (MINOR) AGED 15 1/2 YEARS,
4. RASHID (MINOR) AGED 9 1/2 YEARS,
5. MOOSA E., ENLAKODAN HOUSE,
6. GENERAL MANAGER, MALAPPURAM DISTRICT,
For Petitioner :SMT.P.A.REZIYA
For Respondent :SRI.ESM.KABEER
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :23/07/2010
O R D E R
A.K. BASHEER & P.Q. BARKATH ALI, JJ.
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M.A.C.A. 1344 of 2004
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Dated: JULY 23, 2010
JUDGMENT
Barkath Ali, J.
This appeal under sec.173 of the Motor Vehicles Act is filed by
the 3rd respondent/Insurance Company in OP(MV) 2507/1996 on
the file of the Motor Accidents Claims Tribunal, Tirur, challenging the
judgment and award of the Tribunal dated October 30, 2003 awarding
a total compensation of Rs.1,76,000/- with interest at the rate of 9%
per annum from the date of petition till realisation to the claimants on
account of the death of one boy named Rafi, aged 8, in a motor
accident.
2. The claimants are the parents, brother and sister of
deceased Rafi who died in a motor accident. On July 23, 1995 at
about 6 p.m. while the deceased was walking along the road
Anakkampadam, a car bearing registration No.KL-10A/2511 came at a
high speed and knocked him down and he sustained serious injuries
and he succumbed to the injuries sustained while undergoing
treatment at the Medical College Hospital, Thrissur. Alleging
negligence against the 1st respondent, driver of the car, and claiming a
compensation of Rs.5 lakhs, the claimants filed the OP before the
Tribunal under Sec.166 of the Motor Vehicles Act.
3. Respondents 1 to 3, the driver, owner and insurer of the
M.A.C.A. 1344 of 2004 2
offending car contested the matter before the Tribunal. Respondents
1 and 2, the driver and the owner of the car, filed a written statement
contending that the accident happened when the boy suddenly crossed
the road. The 3rd respondent/insurer of the offending vehicle filed a
written statement admitting the policy, but contended that the vehicle
was driven by one Sasi and not by the 1st respondent, who had no
valid driving licence.
4. PWs.1 and 2 were examined and Exts.A1 to A10 were
marked on the side of the claimants before the Tribunal. On the
side of the respondents, RWs.1 and 2 were examined and Exts.B1
to B3 were marked. On an appreciation of evidence the Tribunal
found that the offending car was driven by the 1st respondent at the
time of the accident and that the accident occurred due to his
negligence and awarded a compensation of Rs.1,59,500/- with interest
@ 9% per annum from the date of petition till realisation and
proportionate cost. The 3rd respondent/Insurance Company has now
come up in appeal challenging the quantum of compensation awarded
and also the finding of the Tribunal that the offending car was driven
by the 1st respondent at the time of the accident.
5. Heard the counsel for the appellant/Insurance Company
and the counsel for the claimants.
6. The following points arise for consideration:
I. Whether the finding of the Tribunal that the offending
M.A.C.A. 1344 of 2004 3
car was driven by the 1st respondent at the time of the
accident and not by one Sasi can be sustained?
II. Whether the compensation awarded by the Tribunal is
excessive?
7. As regards the contention of the appellant/Insurance
Company that one Sasi was driving the offending car at the time of the
accident, we find no substance in this contention. Respondent No.1
has admitted that he was driving the car at the time of the accident.
He was also examined as RW.1 before the Tribunal. Police has also
charged a case against him. An attempt was made on the side of he
appellant/Insurance Company by producing Exts.B1 to B3, petition and
letter given by RW1 and and another letter given by RW2 Nasir
stating that Moosa, the 1st respondent, was not the driver of the
offending vehicle at the time of the accident. The Tribunal has
correctly rejected those evidence in the light of the admission made by
RW1 before the Tribunal and also as police has charged the case
against him. Therefore we are of the view that the Tribunal is
perfectly justified in coming to the conclusion that the offending car
was driven by RW1 at the time of the accident and that the accident
occurred due to his negligence.
8. The Tribunal awarded a total compenstion of Rs.1,76,000/-.
The break up of the compensation amount awarded is as under:
compensation for loss of income – Rs.1,50,000/-
M.A.C.A. 1344 of 2004 4
funeral expenses, loss of estate etc. – Rs. 9,500/-
medical expenses - 6,500/- pain and suffering - 10,000/-
9. The Counsel for the appellant argued that the Tribunal went
wrong in adopting the Second Schedule to the Motor Vehicles Act in
assessing the compensation as the petition was filed under Sec.166 of
the Motor Vehicles Act. There is no merit in the above contention.
It is settled law that the Second Schedule to the Motor Vehicles Act
can be taken as a guide for assessing the compensation. The Tribunal
took the annual notional income of the deceased boy as Rs.15000/-
and after deducting 1/3rd for his personal expenses, took his annual
contribution as Rs.10,000/- and adopted a multiplier of 15 as shown in
the Second Schedule and awarded Rs.1,50,000/- for the loss of
dependency. We find no error committed by the Tribunal to interfere
with the same. We also find that the compensation awarded by the
Tribunal is just and reasonable and not excessive. That being so, the
appeal has to be dismissed.
In the result the appeal is dismissed.
A.K. BASHEER, JUDGE
P.Q. BARKATH ALI, JUDGE
mt/-