IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1215 of 2007()
1. THE NATIONAL INSURANCE COMPANY LTD.,
... Petitioner
Vs
1. NARAYANAN, S/O PONNUCHAMY,
... Respondent
2. DAMAYANTHI, W/O NARAYANAN, -DO-
3. SANTHI, MINOR,D/O NARAYANAN REP. BY THE
4. MR.SUNU, C/O RAMAKRISHNAN,
5. MR.FRANCIC XAVIER, S/O PUSHPARAJ,
6. THE NEW INDIA ASSURANCE COMPANY LTD.,
7. SANGARAJ, S/O SUBRAMANIAN, 5/35,
8. MR.SATHEESH, S/O VELAYUDHAN,
9. THE MANAGING DIRECTOR,
10. S.SENTHILKUMAR, S/O SIKAMANI, 2/17,
For Petitioner :SRI.RAJAN P.KALIYATH
For Respondent :SRI.P.RAVINDRAN (SR.)
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :25/05/2010
O R D E R
A.K. BASHEER & P.Q. BARKATH ALI, JJ.
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M.A.C.A. 1215 of 2007
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Dated: MAY 25, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under sec.173 of the Motor Vehicles Act the 6th
respondent Insurance Company in OP(MV) 752/1999 on the file of the
Motor Accidents Claims Tribunal, Palakkad, challenges the judgment
and award of the Tribunal dated August 30, 2006 awarding a
compensation of Rs.1,69,400/- for the loss caused to the claimants
on account of the death of Satheesh Babu @ Satheesh Kumar, aged
15, in a motor accident.
2. The facts leading to this appeal in brief are these: On
February 13, 1999 at about 1.30 p.m. the deceased was travelling as
a pillion rider on TVS 50 moped bearing registration No.TN 41.C/4495
ridden by the 5th respondent along the Chavadi – Velanthavalam road.
While the 5th respondent was trying to overtake a bus bearing
registration No. CTC 48 which was proceeding in front, another
motorcycle bearing registration No. TDC 3883 ridden by the 2nd
respondent came at a high speed and dashed against the moped of
the claimant. The deceased was thrown off to the road and the front
right wheel of the bus ran over him causing serious injuries to him.
He succumbed to the injuries while undergoing treatment in the
M.A.C.A. 1215 of 2007
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hospital. The claimants are the parents and the sister of the
deceased. According to the claimants the accident occurred due to the
negligence of respondent No.2/the rider of the motorcycle, respondent
No.5/the rider of the moped and respondent No.8/the driver of the
bus. Respondent No.1 as the owner, respondent No.2 as the rider
and respondent No.3 as the insurer of the motorcycle bearing
registration No. TDC 3883 and respondent No.4 as the owner,
respondent No.5 as the rider and respondent No.6 as the insurer of
TVS 50 moped bearing registration No.TN 41.C/4495 and respondent
No.7 as the owner and respondent No.8 as the driver of the bus are
jointly and severally liable to pay compensation to the claimant.
3. Respondents 1 and 2, the owner and the rider of the
offending motorcycle bearing registration No. TDC 3883 remained
absent before the Tribunal. The 3rd respondent, insurer of the
offending motorcycle, filed a written statement admitting the policy,
but contending that the accident occurred due to the negligence on the
part of the 5th respondent, rider of the moped. Respondents 4 and 5,
the owner and the rider of the TVS 50 moped bearing registration
No.TN 41.C/4495 remained absent before the Tribunal. The 6th
respondent, insurer of the said vehicle, filed a written statement
admitting the policy, and further contending that the accident occurred
M.A.C.A. 1215 of 2007
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due to the negligence on the part of the rider of the motorcycle and
the driver of the bus. Respondents 7 and 8 filed a joint written
statement admitting the accident and contending that the accident
occurred due to the negligence on the part of the rider of the moped.
4. PWs.1 and 2 were examined and Exts.A1 to A5 were
marked on the side of the claimants before the Tribunal. No evidence
was adduced by the contesting respondents. On an appreciation of
evidence the Tribunal awarded a compensation of Rs.1,69,400/-
against respondents 4 to 6. The 6th respondent, insurer of the
offending moped, has now come up in appeal challenging the finding
of the Tribunal regarding the negligence as well as the quantum of
compensation. The appellant has also denied the policy of the
offending vehicle.
5. Heard the counsel for the appellant and the respondents.
6. The accident is not disputed. The appellant has challenged
the finding of the Tribunal regarding the negligence as well as
assessing the compensation. The appellant has also contended that
the offending moped was not covered by a valid insurance policy at the
time of the accident. Therefore, the following points arise for
consideration:-
I. Whether the finding of the Tribunal that the accident
M.A.C.A. 1215 of 2007
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occurred due to the negligence on the part of the 5th
respondent and making respondents 4 to 6 liable can be
sustained?
II. Whether the compensation awarded is excessive?
III. Whether the finding of the Tribunal that the offending
vehicle was covered by a valid insurance policy at the time
of the accident can be sustained?
Points I to III
7. The counsel for the appellant argued that the Tribunal went
wrong in finding that the accident occurred due to negligence on the
part of respondent No.5, rider of the moped, and that actually the
accident occurred due to the negligence on the part of the rider of the
motorcycle and the driver of the bus. There is no substance in the
above contention. The claimants examined PWs.1 and 2 who are not
eye-witnesses to the incident. Ext.A1(a) translated copy of the FIR
shows that the rider of the moped negligently overtook the bus which
was proceeding in front and dashed against the motorcycle and that
the deceased was carrying a tyre while travelling in the said moped.
Therefore the Tribunal is perfectly justified in holding that the accident
occurred due to the negligence on the part of the rider of the said
M.A.C.A. 1215 of 2007
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vehicle, especially in view of the fact that no other evidence is
available in the record to prove otherwise. Therefore we confirm the
finding of the Tribunal that the accident occurred due to the negligence
on the part of the 5th respondent. The Tribunal is also justified in
making respondents 4 to 6 liable to pay compensation.
8. The learned counsel for the appellant argued that the
offending moped was not covered by a valid insurance policy at the
time of the accident which is evident from the copy of the policy
produced, Ext.A4. We are unable to agree. The appellant/6th
respondent did not raise such a contention before the Tribunal. On
the other hand, the appellant/6th respondent in its written statement
has admitted the policy. Therefore the Tribunal is perfectly justified
in holding that the offending vehicle was covered by a valid insurance
policy at the time of the accident and that the 6th respondent is bound
to indemnify the 4th respondent, the owner of the moped.
9. It was also contended by the appellant that the compensation
awarded by the Tribunal is excessive. The deceased was a boy aged
15 at the time of the accident. The Tribunal took his notional income
as Rs.1200/- and after deducting 1/3rd for his personal expenses and
adopting a multiplier of 15 as shown in the Second Schedule to the
Motor Vehicles Act, awarded Rs.1,44,000/- for the loss of dependency.
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The Tribunal also awarded Rs.15,000/- for loss of love and affection,
Rs.5000/- for pain and suffering and Rs.5000/- towards transportation
expenses. Taking into account the age of the deceased and the age of
the claimants, we feel that the compensation awarded by the Tribunal
is just and reasonable and not excessive. For all these reasons we
find no merit in the appeal and the same has to be dismissed.
In the result the appeal is dismissed. The parties shall bear
their own costs.
A.K. BASHEER, JUDGE
P.Q. BARKATH ALI, JUDGE
mt/-