IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 826 of 2007()
1. K.N.GOPINATHN,AGED 46 YEARS,
... Petitioner
2. RADHAMANY, AGED 40 YEARS,
3. K.N.VENUGOPAL AGED 38 YEARS,
4. JAYASREE AGED 35 YEARS D/O.LATE
5. SREELATHA, AGED 33 YEARS,
6. RAJALAKSHMI, AGED 31 YEARS,
7. RAJENDRAN, AGED 29 YEARS,
Vs
1. MANAGING PARTNER,M/S.URUMBATH MATHAI
... Respondent
2. JOSEY,JACOB,S/O.CHACKO,VALIYMANGALATH,
3. NATIONAL INSURANCE CO.LTD,URUMBATH
For Petitioner :SRI.V.K.GOPALAKRISHNA PILLAI
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :19/08/2009
O R D E R
K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ.
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M.A.C.A.No.826 of 2007
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Dated, this the 19th day of August, 2009
J U D G M E N T
K.M.Joseph, J.
Appellants are the claimants 2 to 8 in a petition
filed under Section 166 of the Motor Vehicles Act. The first
claimant was the widow of the deceased and the mother of the
appellants. Feeling aggrieved by the amount awarded this
appeal is filed.
2. We heard the learned counsel for the appellants
and learned counsel for the insurance company.
3. The Tribunal has awarded Rs.2,24,560/-.
Rs.1,12,520/- represents medical expenses. Rs.80,040/- has
been awarded towards loss of dependency. Apart from that
appellant has been granted Rs.15,000/- towards pain and
suffering Rs.10,000/- towards loss of love and affection. Of
course, no amount is seen awarded towards loss of
consortium. The widow passed away during the pendency of
the petition.
4. The main contention raised by the learned
counsel for the appellants is that the Tribunal has attributed
25 percent negligence to the deceased. He would submit
MACA No.826/2007 -2-
that it cannot be sustained.
5. Learned counsel for the insurance company
supported the award.
6. The deceased was riding a cycle when the
accident took place. The Tribunal has found that the total
width of the road is 10 metres and the accident was about
3.80 metres from the western tar end. It is found that the
deceased was almost crossing the road but had not reached
the western extremity. Some degree of negligence is found
on the part of the deceased. It is on this basis that
contributory negligence is found and Rs.25% is deducted. As
noticed, from the award of Rs.2,24,560/- nearly more than
half that is Rs.1,12,520/- represents medical expenses. The
deceased was on a cycle. The accident took place on a
National Highway. Of course, the learned counsel for the
insurance company contended that the lorry was driven very
slowly.
7. Having regard to the place of the accident and
the fact that the deceased was riding a cycle we feel that the
Tribunal is not justified in attributing 25 percent negligence
MACA No.826/2007 -3-
on the part of the deceased. But, we are also not inclined to
accept the case of the appellants in toto. There is negligence
on the part of the deceased also. We would be justified to
apportion the negligence between the deceased and the lorry
driver on the ratio 10:90. On this basis the appellants would
be entitled to Rs.2,02,000/- in place of Rs.1,68,420/-. Even
though the appellants contend that the amount of
Rs.15,000/- granted towards pain and suffering is inadequate
since the deceased was in hospital for one month we are not
satisfied that the said award is unjust. Accordingly, the appeal
is allowed in part and the appellants are allowed to realise
Rs.2,02,000/- in place of Rs.1,68,420/- with interest at the
rate of 7.5 percent from the date of petition till the date of
realisation.
(K.M.JOSEPH)
JUDGE.
(M.L.JOSEPH FRANCIS)
JUDGE.
MS