IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 771 of 2005()
1. KAMALAM W/O PRABHAKARAN, AGED 34 YEARS
... Petitioner
2. BABY ALIAS MANIKANDAN, AGED 7 YEARS,
3. PREETHA, AGED 3 YEARS,
Vs
1. HARIHARAN, S/O. BALAKRISHNAN NAIR,
... Respondent
2. A.M.SARASWATHY DEVI, VALLIYOLI KALAM,
3. NATIONAL INSURANCE CO.LTD., THRISSUR
For Petitioner :SRI.JACOB SEBASTIAN
For Respondent : No Appearance
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :22/09/2008
O R D E R
C.N.RAMACHANDRAN NAIR &
HARUN-UL-RASHID, JJ.
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M.A.C.A. No.771 of 2005
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Dated this the 22nd day of September, 2008.
JUDGMENT
Ramachandran Nair, J.
The appeal remains defective for failure to take steps by the
appellants to serve notice on respondents. Since the appeal is pending for
the last three years, by order dated 15.9.2008 we directed counsel for the
appellants to serve notice on Standing Counsel for the Insurance Company.
However, counsel reported that counsel to whom notice was offered for the
Insurance Company, declined to receive the same. We have gone through
the award and we feel there is no need to serve notice on the Insurance
Company because even before the MACT, the Insurance Company did not
take any serious steps even to prove the nature of the accident, which on the
face of it does not appear to us to be in the way stated in the claim petition
and sought to be proved through evidence. Since notice is served on the
Insurance Company, we feel the appeal has to be decided based on available
evidence and going by the relief we propose, which is only marginal
increase of compensation for loss of love and affection and for loss of
consortium, we do not think appearance of Insurance Company will make
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any difference for our decision. We, therefore, proceed to dispose of the
case.
2. The case of the appellants that the deceased died of electrocution
while sitting inside the cabin of a mini lorry on account of the live electric
wire lying across the road is unbelievable. The appellants have stated that
even after receiving the electric shock and sustaining burn injuries by the
deceased, the driver drove the vehicle one kilometre beyond the place of
accident. In the first place, if vehicle ran over a live electric cable, there is
no likelihood of those sitting inside getting electric shock because the only
contact the vehicle has with the road is tyres which are not conducting
materials. Moreover, if shock was experienced in the cabin, in the normal
course the driver would have been the bigger victim than the passenger.
Therefore, the likelihood is that the deceased while sitting above the goods
which is stated to be hay under transport, would have got electric shock
from a hanging electric line which would not have been noticed by the
driver. To our mind, this is the only way the accident would have been
happened and if this has happened, there is obviously contributory
negligence on the part of the deceased for traveling above the goods
exposing himself to dangers. If the case of the appellants that the deceased
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was a traveler in a goods vehicle is accepted, then going by the decision of
the Supreme Court, appellants are not entitled to get compensation from the
Insurance Company. In any case since the Insurance Company has not
made any serious effort to establish genuineness of the the case before the
MACT, we do not wish to go into the same.
3. Counsel for the appellants prayed for enhancement of
compensation under various heads for the reason that deceased was the only
bread winner of the family. We find that no evidence was produced to
prove income of the decease who was stated to be a headload worker.
Therefore, MACT rightly took the income at Rs.1,500/- per month, reduced
one third therefrom and fixed the compensation by adopting the multiplier
16. We feel the fixation of compensation under this head is quite
reasonable because in the absence of any evidence, the Act provides for
taking the annual income at Rs.15,000/- as against which the MACT has
fixed Rs.18,000/- as income of the deceased. However, we find force in
the contention of the appellants that the compensation awarded for loss of
love and affection and for consortium is quite low because the deceased had
two minor children and a fairly young wife left behind. We, therefore,
increase the compensation for loss of love and affection to the children and
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for loss of consortium to the wife by Rs.33,500/- thereby enhancing total
compensation to Rs.2,50,000/-. The Insurance Company is directed to
deposit the additional compensation with interest at 7.5% p.a. from date of
application till date of deposit. The appeal stands allowed to the above
extent.
C.N.RAMACHANDRAN NAIR
Judge
HARUN-UL-RASHID
Judge
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C.N.RAMACHANDRAN NAIR &
HARUN-UL-RASHID, JJ.
…………………………………………………………..
M.A.C.A. Nos.771,986,984,988,751,782,997,
963,1176,799,1584,1588,1168 and 1589 of 2005
…………………………………………………………..
Dated this the 15th day of September, 2008.
ORDER
Ramachandran Nair, J.
Counsel for the appellant/appellants will serve copy to any counsel in
the panel of Standing Counsel for the concerned Insurance Company.
Notice to other respondents will be considered during hearing. Post on
22.9.2008 for disposal.
C.N.RAMACHANDRAN NAIR
Judge
HARUN-UL-RASHID
Judge
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