Kerala High Court
The Divisional Manager vs Safiyath Beevi on 7 January, 2016
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
MONDAY, THE 27TH DAY OF FEBRUARY 2017/8TH PHALGUNA, 1938
MACA.No. 3068 of 2016 ()
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AGAINST THE AWARD IN OPMV 820/2012 of MACT, KOLLAM DATED 07-01-2016
APPELLANT(S)/R3 IN OPMV 820/12.:
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THE DIVISIONAL MANAGER
THE NEW INDIAASSURANCE COMPANY LTD.
2ND FLOOR, KOTTARATHIL BUILDING, PALAYAM,
THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGER
REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.
BYADV. SRI.LAL GEORGE
RESPONDENT(S)/PETITIONERS 1-3 & RESPONDENTS 1,2,4,9 IN OPMV 820/12.:
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1. SAFIYATH BEEVI
W/O.LATE MUHAMMED KUNJU
AGED 71 YEARS, RESIDING AT AJMAL MANZIL
NEAR GOVT.ITI,
CHANDAMATHOPE P.O., PERINAD VILLAGE
KOLLAM TALUK-691014.
2. LAILA BEEVI
D/O.LATE MUHAMMED KUNJU
AGED 46 YEARS, RESIDING AT AJMAL MANZIL
NEAR GOVT.ITI, CHANDAMATHOPE P.O.
PERINAD VILLAGE, KOLLAM TALUK-691014.
3. FATHIMA BEEVI
W/O.LATE MUHAMMED KUNJU,
AGED 30 YEARS, RESIDING AT AJMAL MANZIL
NEAR GOVT.ITI, CHANDAMATHOPE P.O.,
PERINAD VILLAGE, KOLLAM TALUK-691014.
4. NAZEERA BEEVI
W/O.SALAHUDEEN, RESIDINGAT S.N.MANZIL,
PALLIPPURAM P.O., THIRUVANANTHAPURAM-695316.
5. SALAHUDEEN
S/O.IBRAHIM KUNJU, RESIDING AT S.N.MANZIL
PALLIPPURAM P.O., THIRUVANANTHAPURAM-695316.
MACA NO.3068/2017 --2--
6. MAHESH
S/O.RAMAKRISHNAPILLAI, RESIDING AT
MUNDATHIARUVILA HOUSE, CHATHINAMKULAM
CHANDANATHOPE P.O., KOLLAM-691014.
7. THE BRANCH MANAGER
THE ORIENTAL INSURANCE COMPANY LTD.
P.B.NO.17, POST OFFICE JN., PUNALUR-691305.
8. SHAJAHAN
S/O.LATE MUHAMMED KUNJU
RESIDING AT AFZAL MANZIL, CHANDANATHOPE P.O.
PERINAD VILLAGE, KOLLAM TALUK-691014.
9. SALIM
S/O.LATE MUHAMMED KUNJU
RESIDING AT AFZAL MANZIL, CHANDANATHOPE P.O.
PERINAD VILLAGE, KOLLAM TALUK-691014.
10. NOORJAHAN
D/O.LATE MUHAMMED KUNJU
RESIDING AT AFZAL MANZIL, CHANDANATHOPE P.O.
PERINAD VILLAGE, KOLLAM TALUK-691014.
11. SABEENA BEEVI
D/O.LATE MUHAMMED KUNJU
RESIDING AT AFZAL MANZIL, CHANDANATHOPE P.O.
PERINAD VILLAGE, KOLLAM TALUK-691014.
R7 BYADV.SRI.P.JAYASANKAR
R1-R3 BYADV. SRI.S.SREEKUMAR (KOLLAM)
R BY SMT.K.S.SANTHI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 27-02-2017, THE COURT ON THE SAME DAYDELIVERED THE
FOLLOWING:
C.K.ABDUL REHIM & SHIRCY.V,JJ
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M.A.C.A.No. 3068 of 2016
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Dated this the 27th day of February, 2017
JUDGMENT
C.K.Abdul Rehim,J.
The above appeal is preferred by the 3rd respondent insurance company against the award in O.P(MV) No.820/2012 on the files of the Additional Motor Accidents Claim Tribunal, Kollam. The appellant was made liable to pay the amount of compensation awarded by the Tribunal, being the insurer of the vehicle involved in the accident. There is no dispute regarding the findings on the aspects of negligence and liability on the appellant. This appeal is preferred solely on the ground that the amount of compensation awarded is excessive.
2. Heard; learned Counsel appearing for the appellant, Counsel who entered appearance for respondents 1 to 3 and Standing Counsel appearing for MACA No.3068/2016 2 the 7th respondent insurance company.
3. Main contention raised is against the aspect of dependency compensation awarded by the Tribunal. It is argued that, the Tribunal went highly erred in deducting only 1/3rd of the income towards personal expenses of the deceased. It is contended that the claimants were the mother and two sisters. Out of the two sisters the 3rd claimant was unmarried as on the date of the accident. But the second claimant was married and having children. Therefore, she cannot be considered as a dependant and the deduction towards personal expenses ought to have been made at 50%., as per the dictum contained in the decision of the Honorable Supreme Court in Sarla Verma vs. Delhi Transport Corporation (2010(2) KLT 802 (SC), is the contention.
4. Learned counsel for respondents 1 to 3 contended that, specific pleading put forth before the Tribunal was that, the 2nd claimant (2nd respondent herein) was a married sister having three children, who was deserted by MACA No.3068/2016 3 her husband and are living with the deceased under his care and protection. She and her children were depending upon income of the deceased for their livelihood, was the contention raised.
5. Learned Standing Counsel contended that the 2nd respondent being a married lady having husband and children cannot be legally considered as dependant on the deceased.
6. While considering the issue, we are of the opinion that the dependency is a question of fact which need to be considered based on evidence. In the impugned award it is stated that the pleadings in the claim petition is to the effect that the 3rd petitioner (3rd respondent herein) is an unmarried sister and the 2nd petitioner (2nd respondent) is a deserted wife having three children and they were solely depending on the deceased to meet their both ends. Before the Tribunal, the 3rd respondent was examined as PW1 and she gave evidence in support of the pleadings. Therefore, the Tribunal found that the MACA No.3068/2016 4 applicants, being the dependants of the deceased are entitled to get just and reasonable compensation. We had occasion to peruse the written statement filed by the appellant insurance company. There is no denial with respect to the pleadings that all the three petitioners before the Tribunal are dependants upon the deceased. On a perusal of the proof affidavit filed by PW1 in lieu of chief examination, it is specifically mentioned that the 2nd claimant is a lady deserted by her husband and she along with her three children are solely depending on the income of the deceased for their livelihood. Nothing is there in the cross examination controverting the above version.
7. Under the above mentioned circumstances, we are of the opinion that the findings of the Tribunal regarding dependency of the 2nd respondent is based on evidence available on record and as such finding is in no manner illegal, erroneous or incorrect. Apart from the above said contention, we do not find any ground to MACA No.3068/2016 5 interfere with the award impugned.
Hence we are not inclined to admit the appeal and the same is hereby dismissed.
No costs.
C.K.ABDUL REHIM JUDGE SHIRCY.V JUDGE smm