Point of Law: Awarded by Tribunal under head 'loss of pain and sufferings' is reasonable and just, whereas the amount awarded under the head, 'short expectancy of life' is a duplication of the amount awarded under head 'loss of dependency with future prospects'.

JUDGMENT :

The appellants were the petitioners in OP(MV) 473/2004 on the file of the Additional Motor Accidents Claims Tribunal, Alappuzha. The respondents in the appeal were the respondents in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition.

2. The petitioners had filed the claim petition under Sec.163A of the Motor Vehicles Act, 1988 (in short 'the Act'), claiming compensation on account of the death of one Rajesh (deceased), who was the son of petitioners 1 and 2 and the brother of the third petitioner.

3. The concise case of the petitioners in the claim petition was that on 7.3.2004, while the deceased was travelling in a car bearing registration No.KL-5/L 7444, the car hit on the rear portion of a lorry bearing registration No.KL-4/E 9759. The deceased sustained serious injuries and died within a few minutes after the accident. There was negligence on the part of the drivers of the car as well as the lorry. The first respondent was the driver and second respondent was the owner of the lorry, the fourth respondent was the owner-cum-driver of the car and the third respondent was the Insurance Company of both the lorry as well as the car. The petitioners were entitled for compensation from the respondents, which they quantified at Rs.4,79,000/-.

4. The respondents 1, 2 and 4 did not contest the proceedings.

5. The third respondent filed a written statement admitting that the lorry as well as the car had a valid insurance policy issued by the third respondent. However, it was contended that the petition under Sec.163A of the Act was not maintainable as the Police had registered a case against the fourth respondent. It is also contended that the amount claimed in the claim petition was excessive.

6. The Tribunal, after analysing the pleadings and materials on record treated the claim petition as one filed under Sec.166 of the Act and by the impugned award allowed the claim petition, in part, by allowing the petitioners to recover an amount of Rs.2,20,000/-with interest at the rate of 7.5% per annum from the date of petition till the date of realisation. The Tribunal found that there was 75% negligence on the part of the car and 25% negligence on the part of the lorry. Accordingly, the Tribunal directed the third respondent to pay 25% of the compensation amount and the fourth respondent to pay 75% of the compensation amount. The Tribunal exonerated the third respondent – Insurance Company – from paying 75% of the compensation, which was imposed on the fourth respondent, as the car was covered only by an 'Act Policy'. However, the third respondent was directed to pay 25% of the compensation amount in respect of the lorry.

7. Dissatisfied with the quantum of compensation awarded by the Tribunal and the fixation of the composite negligence on the part of the two vehicles, the petitioners are in appeal.

8. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the third respondent – Insurance Company.

9. The learned counsel appearing for the appellants argued that this Court in Rose Lynd E.T and Ors vs Lekha and Ors [2008 (3) KLJ 293] has gone onto hold that parking of the lorry on the road without keeping indicator lamps on is substantial negligence. The Tribunal ought to have followed the said ratio and fixed the composite negligence at least to the extent of 50% each on both the vehicles. Instead, the Tribunal solely on the basis of Ext A3 charge-sheet, fixed the composite negligence at 75% on the car and 25% on the lorry, which is erroneous. Similarly, the Tribunal has not awarded compensation under the conventional heads as laid down in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121], improperly fixed the multiplier, which ought to be 18, instead of 16 as per the ratio in National Insurance Co.Ltd v Pranay Set