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The National Insurance Company … vs Narayanan on 25 May, 2010

Kerala High Court
The National Insurance Company … vs Narayanan on 25 May, 2010
       

  

  

 
 
  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.

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

                          M.A.C.A. 1215 of 2007

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

                           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
2

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
3

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
4

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
5

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.

M.A.C.A. 1215 of 2007
6

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/-

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