IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2052 of 2007()
1. ROSAMMA KURIAN, WIDOW OF KURIAN,
... Petitioner
2. LORANCE KURIAN, S/O LATE KURIAN,
3. LOBINEE KURIAN, S/O LATE KURIAN,
4. LOLITHA GEORGE, W/O GEORGE,
Vs
1. ROBIN XAVIER, RESIDING AT
... Respondent
2. FR. AUGUSTINE, THE SECRETARY,
3. THE ORIENTAL INSURANCE COMPANY LIMITED,
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.K.M.FIROZ
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :24/11/2009
O R D E R
P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ.
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M.A.C.A.No.2052 of 2007
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Dated this the 24th November, 2009
J U D G M E N T
Raman, J.
Appellants are the wife, children and mother of
deceased Kurian who died in a motor accident on 3.9.2003. He
was a person retired from Air Force and was aged 57 years at
the time of accident. While the deceased was proceeding in his
Maruti Van along with his family, a mini lorry bearing
Registration No.KL-5/N-6388, coming from the opposite direction
came and dashed against the maruti van. Due to the accident,
all the passengers sustained very serious injuries. Though
deceased and his child by name Tom George were immediately
taken to the hospital, they succumbed to the injuries. Alleging
negligence on the part of the lorry driver and claiming an amount
of Rs.8 lakhs as compensation under various heads, the claim
petition was preferred.
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2. The Tribunal found that the accident occurred
not solely due to the negligence on the part of the driver of the
lorry, but attributed some negligence on the part of the deceased
also, and the blame was apportioned in the ratio 3:1. The total
compensation found payable was Rs.4,13,000/-, and 25% was
deducted due to contributory negligence and the balance amount
of Rs.3,09,750/- was awarded as compensation with interest at
the rate of 7%.
3. The appellants contended that there was no
justifiable reason for finding any negligence on the part of the
deceased. Going by the mahazar, the road where the accident
took place was having a width of 7.25 metres and the accident
occurred at 3.5 metres north of the southern tar end of the road.
The maruti van was proceeding from west to east. PW.1, the
wife of the deceased gave evidence in support of her contention
and said that the lorry was coming in a rash and negligent
manner, over took another vehicle and dashed against their
maruti van. Going by the point at which the accident occurred;
M.A.C.A.No.2052 of 2007
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taking note of the fact that the entire front portion of the Maruti
Van was completely damaged; and further fact that the deceased
was travelling along with his wife and minor children, there is no
reason to think that the deceased would have been negligent.
Further, as against positive evidence on the part of PW.1, who
witnessed the accident, there is no other contra evidence.
Though the lorry driver was impleaded as a party, he remained
ex parte. The police case also shows that there was no
negligence on the part of the deceased.
4. On a totality of the facts and circumstances as
discussed above, we are of the opinion that the finding of the
Tribunal that the deceased was negligent in some way is not
supported by the materials and the evidence on record. Hence,
we find that the total negligence is on the part of the lorry driver.
If that be so, the appellant is entitled for the whole of the
compensation as awarded by the Tribunal, viz., a sum of
Rs.4,13,000/=.
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5. Coming to the compensation awarded under
different heads, we find that the only head under which the
compensation granted is inadequate is towards the ‘loss of love
and affection’. Wife, two children and the mother are the
claimants. The Tribunal has granted an amount of Rs.5000/- as
compensation under this head to the wife, and a sum of
Rs.2000/- each to the children and mother. We do not disturb
the said finding. But, we find that the children and the mother
are also entitled to get the same amount of compensation as of
wife. Hence, we award a sum of Rs.5000/- each also to the two
children and mother under the head ‘loss of love and affection’.
Thus, the total amount under this head comes to Rs.20,000/-, of
which a sum of Rs.11,000/- is already awarded. Accordingly, the
appellants are entitled to get a balance sum of Rs.9000/- under
this head.
6. Further, we find that no amount is awarded
towards ‘the loss of consortium’ . Accordingly, we grant a sum
of Rs.10,000/- under this head.
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7. In this result, the appellants are entitled to get a
further sum of Rs.19,000/- as additional compensation, which
will carry interest at the rate of 7% from the date of petition till
payment, and this amount is in addition to the total amount
awarded by the Tribunal without anything there being deducted
therefrom. The third respondent, Insurance Company, shall
deposit the balance amount, as expeditiously as possible, at any
rate, within a period of two months from the date of receipt of a
copy of this judgment.
The appeal is allowed in part, as above.
P.R.RAMAN, JUDGE
P.R.RAMACHANDRA MENON, JUDGE.
nj.