IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 348 of 2003()
1. SUSAMMA MATHEW,
... Petitioner
2. JANSON MATHEW (MINOR),
3. T.J.JOSEPH,
4. JAJU MATHEW (MINOR),
5. JOSEPH J.MALAYIL,
6. ANNAMMA THOMAS,
7. CELINAMMA JOSE,
Vs
1. RAJA SEKHARAN NAIR, S/O.SIVARAMA PILLAI,
... Respondent
2. PUNNOOSE @ KOCHI BABY,
3. THE NEW INDIA INSURANCE CO. LTD.,
For Petitioner :SRI.MATHEW ABRAHAM
For Respondent :SRI.N.S.MOHAMMED USMAN
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :05/08/2008
O R D E R
J.B. Koshy & K.P.Balachandran, JJ.
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M.F.A. Nos.348, 362 & 465 of 2003
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Dated this the 5th day of August, 2008
Judgment
Koshy,J.
The legal representative of an autorickshaw driver
applied for compensation contending that the mini lorry insured by
the third respondent insurance company hit the autorickshaw and
the accident happened due to the negligence of the second
respondent driver of the mini lorry and claimed compensation of
Rupees Four lakhs. The tribunal awarded a compensation of
Rs.2,49,000/-. They also filed a claim for damages caused to the
autorickshaw. The tribunal awarded Rs.12,300/- as damages to the
autorickshaw. The insurance company filed two appeals questioning
the awards contending that the vehicle involved was not the mini
lorry, but, another jeep and, therefore, there is no liability for the
insurance company to pay the compensation. The legal
representative of the deceased autorickshaw driver also filed appeal
contending that the amount awarded was inadequate. All the three
appeals were heard together.
M.F.A. Nos.348, 362 & 465/2003 2
2. Main contention raised by the appellant insurance
company is that immediately after the accident, a first information
statement was filed by one Jose, who was a passenger in the
autorickshaw and who was examined as PW3 wherein it is stated
that the autorickshaw was hit by a jeep from behind. PW3 gave
evidence before the tribunal that he did not give such a first
information statement before the police. The first information
statement was also not put to PW3 when he was examined before
the tribunal. He also deposed before the tribunal that while they
were travelling, the mini lorry came and hit the autorickshaw and as
a result of the hit, himself and the driver were thrown out and they
sustained serious injuries and, consequently, the driver of the
autorickshaw died. It is the case of PW3 that after the accident
occurred, the lorry further proceeded and hit a jeep also. Two other
eye witnesses were also examined. They also deposed that the
accident occurred due to the negligence of the lorry driver. The
tribunal relied on the evidence of the eye witnesses examined
before the tribunal. The tribunal also noticed that after
investigation, despite the alleged statement that the mini lorry hit
the jeep, lorry driver was only charge-sheeted. The details of the
jeep is also mentioned in the charge sheet as after the accident,
M.F.A. Nos.348, 362 & 465/2003 3
the lorry hit the jeep also. Mahazar of the said jeep was also
prepared. But, PW3, though stated before the Magistrate’s court
that he did not remember the number of the lorry and he cannot say
whether the negligence of the lorry driver has caused the accident.
A definite question was put in cross-examination of PW3 that the
mini lorry hit the autorickshaw due to the negligence of the
autorickshaw driver as the autorickshaw was coming in the wrong
side. It also stated that the jeep also hit the mini lorry. So, the
cross-examination of PW3 before the Magistrate’s court shows the
involvement of PW3 in the case. From the evidence of the eye
witnesses before the tribunal, the tribunal found that the accident
occurred due to the negligence of the driver of the mini lorry insured
by the appellant insurance company. Since the tribunal has relied on
the evidence of eye witnesses, merely because the driver was
acquitted by the Magistrate’s court, we see no reason to interfere
with the finding. The tribunal is bound by the evidence adduced
before it. No other witnesses were brought by the appellant or by
any other respondents to show that the accident occurred due to
the hit of the jeep on the autorickshaw as contended by it. So, the
evidence adduced justify the finding of the tribunal regarding the
negligence of the lorry driver. It is not disputed that the lorry was
M.F.A. Nos.348, 362 & 465/2003 4
covered by the insurance policy. Therefore, the appeals filed by the
insurance company are dismissed.
With regard to the appeal filed by the claimant, legal
representative of the autorickshaw driver, monthly contribution to
the family was calculated as Rs.1,500/- (after deducting personal
expenses). 17 was taken as the multiplier taking guidance from the
second schedule as he was aged 31 and compensation was
calculated. Total amount of compensation granted was
Rs.2,49,000/- with 9% interest from the date of application.
Considering the total amount of compensation granted, we are of
opinion that no interference is needed and, therefore, the appeal
filed by the claimants are also dismissed.
J.B.Koshy
Judge
K.P.Balachandran
Judge
vaa
M.F.A. Nos.348, 362 & 465/2003 5
J.B. KOSHY
AND
K.P.BALACHANDRAN,JJ.
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M.F.A. Nos.348,362 &
465/2003
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Judgment
Dated:5th August, 2008