IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 1242 of 1994()
1. NATIONAL INSURANCE COMAPANY
... Petitioner
Vs
1. SATHYABATE PARTO
... Respondent
For Petitioner :SRI.GEORGE CHERIAN
For Respondent :SRI.S.GOPAKUMARAN NAIR
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :04/01/2007
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
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M.F.A. No. 1242 Of 1994
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Dated this the 4th day of January, 2007.
JUDGMENT
The insurer is the appellant. The 4th respondent is the owner and
driver of a vehicle in which his father Kashi Vishwanathan was a
passenger, when it met with an accident resulting in the death of
Kashi Vishwanathan, three days after the accident. Respondents 1 to
3, the other children of Kashi Vishwanathan filed O.P.(M.V)No.588/1993
before MACT, Punalur and sought for an order for compensation. They
charged the 4th respondent, their brother, of negligence resulting in
the death of their father.
2. Insurer contested the proceedings contenting that the 4th
respondent owner cum driver was not negligent and the victim of the
accident, Kashi Vishwanathan, was living with the 4th respondent and
the petitioners were not dependant of the deceased.
3. The Tribunal granted an interim award. Later on, after recording
evidence and holding that taking into consideration the age of the
deceased, the period he had undergone treatment after sustaining
injuries, dependency etc., a sum of Rs.45,000/- was awarded as
M.F.A. No. 1242 Of 1994 2
compensation to petitioners 1 to 3. The Tribunal was well aware of
the fact that the primary tort feasor, 4th respondent is also a son of the
deceased. Therefore, the Tribunal made it specific that the
compensation determined by it is that which is found due to the
petitioners, that is the children of the deceased, excluding the primary
tort feasor viz.4th respondent.
4. In this appeal the insurer contents that the amount of
compensation being available to the estate of the deceased in entirety
and in view of the provision of section 166 of the Motor Vehicles
Act,1988 that an application for compensation shall be on behalf of the
legal representatives entitle to compensation, the amount granted as
of compensation has to be slashed by 1/4th, being an amount that the
primary tort feasor would derive out of the estate of his dead father.
5. Having regard to the nature of the findings of the Tribunal as
noticed above, in my view, the Tribunal consciously and cautiously
made the award by determining the compensation due only to the
other children of the deceased Kashi Vishwanathan, excluding the
primary tort feasor, 4th respondent, though is his son. The concept of
tort feasor getting contribution of the compensation payable on
account of his own act qua the dis-entitlement of a heir to succeed to
M.F.A. No. 1242 Of 1994 3
the estate are not issues, this court needs to deliberate upon in this
case.
In the result, I do not find any merit on this appeal. It fails and is
hence dismissed. No costs.
THOTTATHIL B. RADHAKRISHNAN,
JUDGE.
sj
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