High Court Kerala High Court

Rosamma Kurian vs Robin Xavier on 24 November, 2009

Kerala High Court
Rosamma Kurian vs Robin Xavier on 24 November, 2009
       

  

  

 
 
  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.

                   -------------------------------

                    M.A.C.A.No.2052 of 2007

                   -------------------------------

              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.

M.A.C.A.No.2052 of 2007

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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/=.

M.A.C.A.No.2052 of 2007

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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.

M.A.C.A.No.2052 of 2007

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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.