IMPORTANT POINTS
The mother of the deceased had pre-deceased him, his father was aged 65 years old, his sister was unmarried, and the deceased was contributing a part of his meagre income to the family for their sustenance and survival, the Apex Court granted a sum of Rs.40,000/-as compensation to unmarried sister of the deceased under the head filial consortium, after maintaining the compensation (Rs.50,000/-x 2) awarded by the High Court towards loss of love and affection, which can only be treated as a direction issued by the Apex Court in exercise of its powers under Article 142 of the Constitution of India to do proper justice and the exercise of such power cannot be considered as law laid down by the Apex Court under Article 141 of the Constitution of India.

JUDGMENT :

The appellants are the claimants in O.P.(MV)No.757 of 2006 on the file of the Motor Accidents Claims Tribunal, Ernakulam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Dinesan, husband of the 1st appellant, father of the 2nd appellant and son of the 3rd appellant, in a motor accident which occurred on 29.9.2005, while he was riding a motorcycle bearing registration No.KL-7/V-1939. At the place of accident, a scooter bearing registration No.KL-7/AD-141, owned by the 1st respondent, ridden by the 2nd respondent and insured with the 3rd respondent, hit the motorcycle. In the accident, he sustained fatal injuries, who succumbed to the injuries on 10.10.2005, while undergoing inpatient treatment. Alleging that the accident occurred due to rash and negligent riding of the scooter by the 2nd respondent rider, claim petition was filed before the Tribunal, claiming a total compensation of Rs.16,00,000/- under various heads.

2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex parte. The 3rd respondent insurer filed written statement admitting the policy coverage of the scooter involved in the accident; however, denying negligence alleged against the 2nd respondent rider of the scooter. The insurer contended that the accident occurred due to rash and negligent riding of the motorcycle by the deceased, who applied sudden brake and thus hit against the scooter. Therefore, there was contributory negligence on the part of the deceased. The insurer contended further that the compensation claimed is highly excessive.

3. Before the Tribunal, Exts.A1 to A13 were marked on the side of the claimants. The 1st appellant was examined as PW1 and an occurrence witness was examined as PW2. Exts.B1 and B2 were marked on the side of the respondents.

4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to rash and negligent riding of the scooter by the 2nd respondent and also on account of contributory negligence on the part of the deceased, who was riding the motorcycle without holding a valid and effective driving licence. The Tribunal fixed negligence between the 2nd respondent and the deceased in the ratio of 60:40. Under various heads, the Tribunal awarded a total compensation of Rs.10,24,480/-. After deducting 40% of the said amount, i.e., Rs.4,09,792/-towards contributory negligence, the claimants were awarded a sum of Rs.6,14,688/-. Deducting Rs.50,000/-towards interim award, they were found entitled for a sum of Rs.5,64,688/-together with interest at the rate 8% per annum from the date of petition, i.e., from 16.01.2006, till realisation, with proportionate cost, and directed the 3rd respondent insurer to satisfy the award. The amount of compensation was ordered to be apportioned among the claimants in the ratio 50:40:10.

5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads and also challenging the finding of the Tribunal on the question of contributory negligence on the part of the deceased, the appellants/claimants are before this Court in this appeal.

6. Heard the learned counsel for the appellants/claimants and also the learned Senior Counsel for the 3rd respondent insurer.

7. The issues that arise for consideration in this appeal are as to whether the finding of the Tribunal on the question of contributory negligence on the part of the deceased can be sustained in law; and whether the appellants are entitled for enhancement of the compensation awarded by the Tribunal under various heads.

8. Ext.A4 is the charge sheet in Crime No.3796/2005 of Aroor Police station, registered in connection with the motor accident in question, in which the 2nd respondent rider of the scooter was charge sheeted by the police alleging o