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2021 Latest Caselaw 7524 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

                THE HONOURABLE MR.JUSTICE C.S.DIAS

    THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942

                     MACA.No.2209 OF 2014(C)

AGAINST THE AWARD IN OP(MV) 824/2011 DATED 7.3.2014 ON THE FILE OF
            MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM


APPELLANT/3RD RESPONDENT:

             RELIANCE GENERAL INSURANCE CO.LTD.
             PALAKKAD, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL
             OFFICER, ERNAKULAM.

             BY ADV. SRI.GEORGE CHERIAN (SR.)

RESPONDENTS/CLAIMANTS:

      1      RATHI BABY,
             W/O.UDAYAN, PULIKKASSERI HOUSE, KANJIRAM, PERIMBADARI
             P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT AND
             PRESENTLY RESIDING AT PULIKKASSERI HOUSE,
             MUTHUKURUSSI P.O., MANNARKKAD TALUK, PALAKKAD
             DISTRICT, PIN 678582.

      2      UDAYAN,
             S/O.PARAMESWARAN, PULIKKASSERI HOUSE, KANJIRAM,
             PERIMBADARI P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT
             AND PRESENTLY RESIDING AT PULIKKASSERI HOUSE,
             MUTHUKURUSSI P.O., MANNARKKAD TALUK, PALAKKAD
             DISTRICT, PIN 678582.

      3      ONIEL,
             S/O.UDAYAN, PULIKKASSERI HOUSE, KANJIRAM, PERIMBADARI
             P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT AND
             PRESENTLY RESIDING AT PULIKKASSERI HOUSE,
             MUTHUKURUSSI P.O., MANNARKKAD TALUK, PALAKKAD
             DISTRICT, PIN 678582.

             R1 BY ADV. SRI.K.B.ARUNKUMAR
             R1 BY ADV. SRI.RANJIT BABU

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA.No.2209 OF 2014(C)             2




                            JUDGMENT

The appellant is the third respondent in OP(MV)

No.824 of 2011 on the file of Motor Accidents Claims

Tribunal, Ottapalam. The respondents in the appeal were

the claimants before the Tribunal. The parties are, for the

sake of convenience, referred to as per their status in the

claim petition.

2. The concise case of the petitioners in the claim

petition, for the adjudication of the appeal, was that: On

5.3.2011 while the son of the petitioners 1 and 2 namely,

Yujil P Udayan (deceased) and the brother of the third

petitioner was riding his motorcycle bearing Reg.No.KL 50A

2755 through the Kozhikode - Palakkad National Highway,

the bike was hit by the lorry bearing Reg.No. KL09Y 9572

(offending vehicle) driven by the first respondent, in a rash

and negligent manner. The deceased sustained serious

injuries in the accident. He was treated at the Al-Shifa

Hospital, Perinthalmanna, where he succumbed to the

injuries on the next day. The accident occurred solely due to

the rashness and negligence on the part of the first

respondent. The 2nd respondent is the owner and the third

respondent is the insurer of the offending vehicle. The

petitioners claimed a compensation of Rs.8,25,000/-, which

was limited to Rs.8,00,000/-.

3. The respondents 1 and 2 remained absent and

were set ex parte.

4. The third respondent filed a written statement

refuting the allegations in the claim petition. According to

the third respondent, the accident occurred due to the

negligence on the part of the deceased. The 3 rd respondent

disputed the age, income and occupation of the deceased.

It was also contended that the amount of compensation

claimed was excessive and exorbitant. However, the third

respondent admitted the insurance policy of the offending

vehicle.

5. The petitioners produced and marked Exts.A1 to

A11 in evidence. The third respondent produced Ext.D1

copy of the insurance policy.

6. The Tribunal, after analysing the pleadings and

materials on record, by the impugned award allowed the

claim petition, by directing the third respondent to pay an

amount of Rs.10.37,600/- as compensation to the petitioners

with 9% interest per annum from the date of petition till the

date of realization along with proportionate costs.

7. Aggrieved by the impugned award the third

respondent - Insurance Company is in appeal before this

Court.

8. Heard the learned counsel appearing for the

appellant/3rd respondent and the learned counsel appearing

for the respondents/petitioners.

9. The fact that the accident was caused due to the

rashness and negligence of the first respondent stands

substantiated by Exts.A1 to A4 and A7 documents. No

contra evidence was let him by the respondents as held by

this Court in New India Assurance Company Ltd., vs.

Pazhaniyammal (2011 (3) KLT 648) to rebut Ext.A7

charge sheet filed by the Police after investigation.

Therefore, the finding of the Tribunal that it was due to the

negligence on the part of the first respondent that the

accident occurred is only to be upheld.

10. It is also not disputed by the appellant/3 rd

respondent that the deceased was only 19 years as on the

date of accident and he was a student pursuing his

Electronics and Communication System Course in the AJK

college of Arts and Science, Coimbatore, as evidenced from

Exts.A9 and A10.

11. The Tribunal following the well settled principles,

considering the educational qualifications of the deceased

fixed his notional income at Rs.8,000/- per month.

However, as the deceased was a bachelor the Tribunal

deducted 50% towards the deceased's personal and living

expenses.

12. Following the ratio in Sarala Verma vs. Delhi

Transport Corporation (AIR 2010 (2) KLT 802 SC), the

Tribunal fixed the multiplier at 18 and fixed the loss of

dependency at Rs.8,64,000/-. The Tribunal also awarded an

amount of Rs.33,600/- towards actual medical expenses

incurred for the treatment of the deceased, Rs.5,000/-

towards ambulance charges, Rs.10,000/- towards pain and

sufferings, Rs.1,00,000/- towards loss of love and affection,

Rs.25,000/- towards funeral expenses. Accordingly, the

Tribunal arrived at an amount of Rs.10,37,600/- as

compensation for the petitioners on account of the death of

the deceased.

13. On an over all re-appreciation of pleadings and

materials on record, I do not find any error or illegality in

the impugned award warranting the interference of this

Court in in exercise of its appellate jurisdiction. The

appeal is devoid of any merits and is groundless.

In the result, the appeal is dismissed, confirming the

award passed by the Tribunal. It is seen from the records

that this Court had at the time of admission of the appeal,

directed the appellant to deposit 60% of the compensation

amount within a period of two months. It was also further

directed that, if the deposit was made, the amount to be

released to the respondents/petitioners as per the

conditions prescribed in the award. Needless to mention

that, if the ordered amount was deposited by the appellant

and the same was withdrawn by the respondents, then the

appellant need only deposit the remaining amount due as

per the impugned award with interest at 9% per annum on

the balance amount from the date of petition till the date of

deposit with proportionate costs. On such deposit being

made, the Tribunal shall permit the respondents/petitioners

to withdraw the deposited amount in accordance with law.

Sd/-

C.S.DIAS, JUDGE

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