IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2762 of 2008()
1. THE ORIENTAL INSURANCE CO.LTD.,
... Petitioner
Vs
1. THE SECRETARY, KOLLAM AUTOMOBILE
... Respondent
2. PRADEEP.G. S/O.GANESHAN, KURUPUMVEETTIL
3. BABYKUTTY AMMA, W/O. DECEASED AYYAPPAN
4. ANOOP,S/O.DECEASED AYYAPPAN PILLAI,
5. ANUPAMA, S/O.DECEASED AYYAPPAN PILLAI,
For Petitioner :SRI.VPK.PANICKER
For Respondent :SRI.R.ARUN RAJ
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :23/11/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.No.2762 OF 2008
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Dated this the 23rd day of November, 2010
JUDGMENT
Barkath Ali, J.
Appellant is the third respondent Insurance Company in
O.P.(MV)No.980/2004 on the file of Motor Accidents Claims Tribunal,
Punalur. In this appeal the appellant challenges the judgment and award
of the Tribunal dated March 11, 2008 awarding a compensation of
Rs. 2,32,200/- to the claimants, who are respondents 3 to 5 in this
appeal, for the loss caused to them on account of the death of deceased
Ayyappan in a motor accident.
2. Claimants are the wife and the two children of deceased
Ayyappan. The accident happened on May 28, 2004 at Kadappakkad in
Kollam district while the deceased Ayyappan was riding the scooter, he
was knocked down by the bus bearing Reg.No.KL/3/A/4149 driven by
the second respondent on the Kollam-Chenkotta public road near
Aaramar Hotel, Kadappakkad. Deceased sustained serious injuries and
he succumbed to the injuries sustained while undergoing treatment in
the District Hospital, Kollam. Alleging negligence against the second
respondent in the O.P., the claimants filed the O.P. before the Tribunal
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claiming a compensation of Rs. 5,00,000/-.
3. Respondents 1 and 2 in the O.P., the owner and the driver
of the offending bus remained absent before the Tribunal. The third
respondent/appellant, the insurer of the offending bus filed a written
statement admitting the policy .
4. Pws 1 to 3 were examined and Exts.A1 to A10 and Ext.X1
were marked on the side of the claimant before the Tribunal. Ext.B1
was marked on the side of the third respondent. On an appreciation of
evidence, the Tribunal awarded a compensation of Rs. 2,32,200/-
with interest @ 7.5% per annum from the date of petition till realisation
and a cost of Rs.1500/- The Tribunal has also found that there was
violation of the condition of the policy as second respondent has no
valid driving licence at the time of the accident and allowed the third
respondent to recover the compensation amount from respondents 1
and 2. The third respondent Insurance Company has now come up in
appeal challenging the quantum of compensation awarded by the
Tribunal as well as the above finding of the Tribunal regarding the
negligence on the part of the second respondent, the driver of the bus.
5. Heard the counsel for the appellant Insurance Company and
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the counsel for the claimants.
6. The following points arise for consideration :
1. Whether the finding of the Tribunal that the
accident occurred due to the negligence of the second
respondent can be sustained ?
2. Whether the compensation awarded by the
Tribunal is excessive ?
Point No.1
7. The accident is not disputed. The fact that the deceased
died as a result of the injury sustained in the accident is also admitted.
The Tribunal found that the accident occurred due to the negligence of
the second respondent, the driver of the offending bus. Counsel for the
appellant/Insurance Company argued that as this is a case of collision
between the two vehicles, there was also negligence on the part of the
deceased who was riding the scooter. We find no merit in the above
contention. On the side of the claimant, Exts.A1 to A10 were marked
and Pws 1 to 3 were examined. It is admitted that police has charged
the case against the second respondent which is also evidenced by
Ext.A5, copy of the police charge. PW1, the first claimant has testified
that the accident occurred due to the negligence of the second
respondent . She was not even cross-examined by the counsel for the
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third respondent. The evidence of PW1 coupled with Ext.A5 police
charge clearly shows that the accident occurred due to the negligence
of the second respondent, the driver of the offending bus. Therefore,
we confirm the finding of the Tribunal on this point.
8. The next question for consideration is whether the
compensation awarded by the Tribunal is excessive. The Tribunal
awarded a total compensation of Rs.2,32,000/- . The break up of the
compensation awarded is as under :
Loss of dependency - Rs. 2,22,200/-
Transportation - Rs. 2,000/-
Funeral expenses - Rs. 3,000/-
Pain and suffering - Rs. 5,000/-
9. Counsel for the claimant argued that the Tribunal fixed the
monthly income of the deceased as Rs. 5555/- which is on the higher
side as the first claimant would be receiving family pension as the
deceased was an ex-military person. There is no substance in the above
contention. It is not disputed that the claimant was a retired Subedar
from Military Engineering Services. Ext.X1 the relevant documents
show that he was drawing a pension of Rs. 2189/-. PW2 is the
Manager of State Bank of Travancore, Kilikolloor branch who proved
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Ext.X1. Further, Ext.A10 salary certificate issued by PW3, the
Manager of the Boots and Boots Company, Kollam shows that
deceased was drawing a salary of Rs.6,000/- per month. Taking into
consideration all these aspects, we feel that the monthly income fixed
by the Tribunal as Rs. 5555/- appears reasonable. After deducting 1/3
for his personal expenses, the balance amount of Rs. 44,440/- was fixed
as his annual contribution to his family. The Tribunal adopted a
multiplier of 5 as the deceased was aged 63 at the time of the accident
and awarded Rs.2,22,200/- for loss of dependency. Taking into
consideration the above facts and in the circumstances of the case, we
feel that the compensation awarded by the Tribunal is just and
reasonable and is not excessive. That being so, the appeal has to be
dismissed.
In the result, the appeal is dismissed. No cost.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
sv.
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