IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1244 of 2007()
1. THE NATIONAL INSURANCE COMPANY LTD.,
... Petitioner
Vs
1. SANTHA T.R., PADINJARE VELIKKAKATHU
... Respondent
2. PRAVEEN KUMAR.V., (MINOR),
3. MAYADEVI.S.(MINOR),
4. KANAKAMMA.B.,
5. DEPE GLOBAL SHIPPING AGENCIES PVT.LTD.,
For Petitioner :SRI.RAJAN P.KALIYATH
For Respondent :SRI.S.SANAL KUMAR
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :03/08/2009
O R D E R
K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ.
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M.A.C.A. NO: 1244 OF 2007
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Dated this the 3rd Day of August, 2009.
JUDGMENT
K. M. Joseph J.
The appellant is the 3rd respondent in a petition filed under
Section 166 of Motor Vehicle Act. The respondents 1 to 4 filed a
claim petition on account of the death of the husband of the first
respondent and father of respondents 2 and 3 and son of the 4th
respondent. The Tribunal has awarded a total sum of Rs.5,92,000/-
and costs.
2. Heard the learned counsel for the appellant and the
learned counsel for respondents 1 to 4.
3. Learned counsel for the appellant raised two issues
before us. Firstly, he would contend that the finding of the Tribunal
attributing negligence to the driver/ second respondent is erroneous.
He points out that the vehicle was found on 3 m west from the eastern
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end of the road. He would contend that the maruti car, which was
driven by the deceased, was travelling from north to south. The lorry
which was driven by the 2nd respondent was coming from the opposite
side. He further contended that the Tribunal should have found that it
was the maruti car, which was driven negligently.
4. The discussion in this respect vide issue No.1 in the
Award read as follows:
“It is contended by the third respondent that the
accident occurred not due to the rash and negligent
driving of the lorry by the second respondent but it
occurred solely due to the negligence of the deceased
Unnikrishnan Nair who was driving his car. Ext.A1 is
the copy of FIR, Ext. A3 is the copy of the scene
mahazar, Exts.A6 and A7 are the copies of the AMVI
reports regarding the lorry and the car involved in the
accident and Ext.A2 is the copy of the charge sheet in
crime No.250/09 of Kayamkulam police station, the
crime registered regarding the occurrence. Ext.A16 is
the copy of the driving license of the deceased
Unnikrishnan. In these circumstances, in the absence of
any contra evidence, I find that the accident occurred
due to the rash and negligent driving of the lorry by the
second respondent.”
5. The Tribunal has of course found shelter in the fact that
the charge sheet was filed in the crime registered against the second
respondent. It is not the law that it should be established beyond any
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doubt that the negligence is as alleged by the claimant. It is a summary
proceeding. Therefore, we reject the contention raised by the appellant
in this regard.
6. The Tribunal has awarded a sum of Rs.5,28,000/-
towards loss of dependency. The deceased was aged 52 years and he
was working as Basketball coach in the Kerala State Sports Council.
As on the date of incident, he was 52 years of age. The deceased
would have retired at the age of 55 years. It is complained that the
multiplier was taken as 11. But the same multiplicand is taken for the
entire period of 11 years. The Tribunal has taken Rs.4,000/- as
multiplicand for the entire period of 11 years. The learned counsel
would contend that the deceased would have continued to work with
the Sports Council for 3 years more. Going by Ext.A19 Certificate
income is shown as Rs.6,699/- and if 1/3 rd is deducted it would be
Rs.4,466/-. It is pointed out that after the retirement the income could
not have been fixed at Rs.4,000/- for the entire period of 8 years. It is
pointed out that one should not loose sight of the fact that legal
representatives would get family pension.
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7. Per contra, learned counsel for respondents 1 to 4
supported the award. She points out that in fact the salary certificate
would show that the actual total emoluments of the deceased is
Rs.9,729.47. From the said amount a total amount of Rs.3,030/- was
deducted to arrive at Rs.6,699/- as the net salary. When we went
through the contents, under the head recovery, we find that there was a
deduction of Rs.1,500/- towards GPF subscription and Rs.375/-
towards KSC chitty. If that is so, the Tribunal should have also taken
into account of Rs.1,500/- and Rs.375/-, an aggregate of Rs.1,875/- in
calculating the income of the deceased, till he retired. On that basis,
the income of the deceased for the period up to his retirement would be
Rs.8,574/-. From the same, 1/3 has to be deducted. For the period,
after retirement we would feel that having regarding to the fact
necessarily the respondents would be getting family pension, we can
take Rs.4,000/- as the income. After deduction and applying the
multiplier of 8, the amount will be Rs.2,56,000/- Thus the respondents
would be entitled to realise a sum of Rs.4,61,776/- (round of to
Rs.4,62,000/-).
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Accordingly the appeal is allowed in part and we modify the
award and respondents 1 to 4 are entitled to realise a sum of
Rs.4,62,000/- along with interest at 7.5% from the date of petition till
the date of realisation. The amount already awarded by the Tribunal
will also bear interest at the rate of 7.5% in place of 6% from the date
of petition till the date of realisation.
K. M. JOSEPH, JUDGE
M. L. JOSEPH FRANCIS, JUDGE
dl/