IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 111 of 2004()
1. HASHIM, SON OF MUHAMMED HANEEFA,
... Petitioner
Vs
1. SARASWATHY, DAUGHTER OF SREEDHARAN,
... Respondent
2. BABY, DAUGHTER OF SREEDHARAN,
3. INDIRA, DAUGHTER OF SREEDHARAN,
4. SAKUNTHALA, DAUGHTER OF GOPI,
5. RAJU, SON OF GOPI,
6. SANTHOSHKUMAR, SON OF NADESAN,
7. THE ORIENTAL INSURANCE COMPANY LIMITED,
For Petitioner :SRI.S.M.PREM
For Respondent :SRI.B.JAYASURYA
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :21/11/2008
O R D E R
M.N.KRISHNAN, J
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MACA No.111 OF 2004
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Dated this the 21st day of November 2008
JUDGMENT
This appeal is preferred against the award of the Motor Accidents
Claims Tribunal, Attingal in O.P.(MV)No.1247 of 1998. Claimants are the
legal representatives of deceased Sarasamma, who succumbed to the
injuries sustained in a road accident on 27.3.1997. The Tribunal found that
she has contributed 30% to the accident and the rider of the bike 70% and
held respondents 1 and 2 jointly and severally liable for the claim. It
awarded a sum of Rs.71,750/- with 9% interest. It is against that decision,
the 2nd respondent has come up in appeal before this Court challenging the
question of negligence as well as the quantum.
2. Admittedly the deceased was a passenger in a bus. She got down
from the bus and through front side of the bus. While she was crossing the
road and at that time the accident took place. It is seen from the scene
mahazar that the accident had taken place 88 cms. east of the western tar
end in a road which is having a width of 5.40 metres and straight vision of
250 metres to the south and 300m metres to the north. Learned counsel
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would contend that the deceased was a blind lady and she did not take care
at all and it was on account of her negligence the accident took place. It has
to be stated that the rider of the bike was coming behind the bus and when
the bus stopped for alighting passengers he attempted to overtake the bus
and in that process he met with the accident. It is not known how the
accident had taken place on the other extremity of the road which is
indicative of one factor that the deceased had almost crossed the road.
There was a duty cast upon the deceased as well to wait and see whether any
vehicles are coming from the two directions before crossing the road. So
also a rider of a vehicle especially when a vehicle like a bus is parked for
alighting passengers should be very cautious and must slow down the
vehicle so that these type of unfortunate incident does not take place. But
unfortunately the rider did not take that much care which he is expected
and therefore that has resulted in the accident. The duty of a rider is more
towards pedestrians especially under the above mentioned circumstances.
Therefore I do not propose to disturb the negligence apportioned as 70%
and 30% respectively.
Now turning to the quantum of compensation. The Tribunal itself had
opined that the deceased was only a pensioner having a monthly pension of
Rs.75 to Rs.100/-. Though it is stated that she was a blind person no
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evidence has been produced to prove the same. The Tribunal should have
taken a nominal income of Rs.1000/- at least. Similarly the Tribunal need
not have awarded Rs.15,000/- as compensation for pain and suffering and
Rs.15,000/- towards loss of estate. When dependency is allowed again
adding loss of estate as a huge amount will be a duplication and a nominal
amount need be awarded in such cases. The claimant had a head injury. She
did not survive long after the accident. Towards love and affection the same
compensation can be retained. The award passed by the Tribunal is
modified as follows. Towards loss of dependency I award Rs.40,000/-,
transport expenses Rs.2,000/-, damage to clothing Rs.500/-, funeral
expenses Rs.5,000/-, pain and suffering Rs.5,000/-, loss of estate Rs.2,000/-,
loss of love and affection Rs.15,000/- making a total of Rs.69,500/- of
which the claimants are entitled to 70% of the amount which would come
to Rs.45,650/-.
In the result, MACA is partly allowed and a revised award is passed
whereby claimants 1 to 4 are entitled to realise a sum of Rs.45,650/- with
9% interest from 5.10.1998 till realisation from respondents 1 and 2. They
shall take the amount in equal shares. If any amount is deposited that shall
be given credit to and disbursed to them. Respondents 1 and 2 are directed
to deposit the amount within a period of 90 days from the date of receipt of
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a copy of this judgment.
M.N.KRISHNAN, JUDGE
Cdp/-