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INDIRA W/O. LATE PANKAJAKSHAN NAIR versus SMT.SALI JOSE, PAIKADA HOUSE, NEELOOR PO

High Court of Kerala

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INDIRA W/O. LATE PANKAJAKSHAN NAIR v. SMT.SALI JOSE, PAIKADA HOUSE, NEELOOR PO - MFA No. 793 of 2002(A) [2007] RD-KL 8421 (24 May 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA No. 793 of 2002(A)

1. INDIRA W/O. LATE PANKAJAKSHAN NAIR,
... Petitioner

Vs

1. SMT.SALI JOSE, PAIKADA HOUSE, NEELOOR PO
... Respondent

2. JOJO S/O. NARAYANAN NAIR,

3. UNITED INDIA INSURANCE CO. THROUGH ITS

For Petitioner :SRI.M.V.MATHEW

For Respondent :SRI.M.A.GEORGE

The Hon'ble MR. Justice K.PADMANABHAN NAIR

Dated :24/05/2007

O R D E R

K.PADMANABHAN NAIR, JUDGE.


=====================
M..F.A. No. 793 OF 2002

Dated this the 24th day of May, 2007


========================


JUDGMENT

The claimant in O.P.(M.V).No. 619/1998, on the file of Motor Accident Claims Tribunal, Toduhpuzha, is the appellant. The appellant had filed the petition claiming compensation on account of the death of her only son Sudheer, in a motor vehicle accident. On 23.11.1997, the deceased was riding a motor cycle along Thodupuzha-Muthalakodam road. When the motor cycle reached the place of occurrence an accident took place involving the motor cycle in which the deceased was riding and a stage carriage bus bearing registration No. KL-6/6199. Sudheer sustained injuries. He was taken to the hospital. While undergoing treatment, he succumbed to injuries. The appellant filed a petition for compensation impleading the owner, driver and insurer of the vehicle. The insurer alone contested the matter. It was contended that the accident occurred not due to the rash or negligence of the bus driver, but due to the negligence of the deceased himself. The quantum of compensation claimed was disputed. The Tribunal after trial found that the accident occurred due to the negligence of the deceased as well the driver of the bus. It was held that the deceased also contributed to the accident and the liability was apportioned at the ratio of 50:50. The Tribunal found that the deceased was getting an income of Rs.2,000/- and the appellant will get 1/3 of the same which was fixed at Rs.667/-. 16 was adopted as multiplier. M..F.A. No. 793 OF 2002 2 Tribunal found that the total compensation due on account of the death of late Sudheer was Rs. 1,56,100/-. The amount due to the appellant was fixed as Rs.80,000/-. Challenging the quantum of compensation, the petitioner in the O.P. has filed this appeal.

2. The learned counsel appearing for the appellant has strenuously argued before me that findings of the Tribunal that the deceased also contributed to the accident, is illegal and not based on any evidence. It is also argued that the quantum of compensation fixed is very low. It is argued that the deceased was earning more than Rs.10,000/- per mensum.

3. I will first consider the finding of the Tribunal regarding the negligence. The case of the appellant was that the bus driven by second respondent came from the opposite direction in a rash or negligent manner and hit against the motor cycle. PW2 is an eye witness. The oral evidence of PW2 shows that bus was coming through the left side of the road. His evidence also indicate that the motor cycle went to wrong side and incident occurred. So the findings of the Tribunal that the deceased also contributed to the accident is correct. But findings that he was 50% liable is unsustainable. After considering the evidence on record, I am of the view that the deceased was only 25% liable for the accident. The Tribunal found that the deceased might have been getting an income of Rs.2,000/- and 1/3 of that amount was fixed at Rs.667/-. Tribunal ought to have fixed the monthly income of the deceased at Rs.2,100/- and 1/3 of that amount was taken as the contribution of the deceased to his mother. 16 was accepted as M..F.A. No. 793 OF 2002 3 the multiplier. I do not propose to change the same. So the amount on account of loss of dependency is 700 x 12 x 16 = 1,34,400/-. I do not find any reason to interfere with the quantum or compensation awarded under other heads. So those amounts awarded are confirmed. The total compensation due to the appellant is fixed as 1,62,400/-. 75% of the same will come to Rs.1,21,800/-. The petitioner was already paid an award of Rs.80,000/- and she is entitled to get an additional compensation of Rs.41,800/- with interest at the fate of 7%. That amount shall be paid by the insurer. In the result, the appeal is allowed in part. It is found that the appellant is entitled to get an additional compensation of Rs.41,800/- with interest at the rate of 7% from the date of petition till realisation of the amount. The amount shall be deposited by the insurer. Half of the amount shall be released to the petitioner immediately on deposit. K.PADMANABHAN NAIR

JUDGE.

bkn


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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