JUDGMENT :

C. JAYACHANDRAN, J.

1. The appeal is preferred by the third respondent/Insurance Company in O.P. (M.V.) No. 975/2016 of the Motor Accidents Claims Tribunal, Perumbavoor. The claimants preferred the above cross objection. The fatal accident occurred on 10.4.2016, at the mid night, when the motor cycle driven by the deceased hit on the rear side a crane, which was parked on the road side.

2. Heard Sri. Mathews Jacob, learned Senior Counsel, instructed by Smt. Preethy R. Nair on behalf of the appellant and Sri. A.N. Santhosh, learned counsel for respondents 1 to 6 (petitioners in the cross objection). Perused the records.

3. Learned Senior Counsel for the appellant/Insurance Company contended that the deceased was under the spell of alcohol at the time of accident, as could be seen from the wound certificate, where the smell of alcohol is recorded. However, the Tribunal attributed entire negligence on the driver of the crane, based on the final report and awarded compensation. Neither the driver nor the owner of the crane contested the matter. Although the policy is admitted, the Tribunal should have found that the accident occurred due to the negligence on the part of the deceased; or at least should have found contributory negligence as against him, is the submission of the learned Senior Counsel for the Insurance Company.

4. The second contention is based on the quantum of compensation granted. According to the learned counsel for the appellant, Rs. 9,500/- was taken as monthly income, without any supporting proof. Two other heads, which are not liable to be reckoned in cases of death, namely ‘pain and suffering’ and ‘love and affection’ have been reckoned at Rs. 15,000/- and Rs. 50,000/- respectively, which is contrary to the prevailing law, is the submission.

5. Per contra, learned counsel for the respondents (petitioners in the cross objection) submitted that the Tribunal rightly found negligence on the driver of the crane relying upon Ext.A5 final report in the crime registered, warranting no interference by this Court. It was submitted that the monthly income reckoned is grossly insufficient. The claimants sought for a monthly income of Rs. 30,000/- in the capacity of the deceased as the owner cum driver of a tipper lorry, his driving licence being produced as Ext.A10 and the R.C particulars of the lorry as Ext.A11. Despite these, the Tribunal only reckoned Rs. 9,500/- as monthly income, which is less than the index available in Ramachandrappa vs. The Manager, Royal Sundaram Alliance Insurance Company Ltd. (2011) 13 SCC 236 even for a Coolie. Learned counsel relied upon the judgment of the Honourable Supreme Court in Minu Rout and Another vs. Satya Pradyumna Mahopatra and Others, (2013) 10 SCC 695 to point out that in respect of an accident which took place in 2004 and in a case where a sum of Rs. 5,000/- alone was claimed as monthly income, the Honourable Supreme Court took note of the fact that the claimant therein, being a driver and skillfully employed, is entitled to a monthly income at Rs. 6,000/- per month.

6. Another contention of the petitioners in the cross objection is that no compensation was awarded under the head consortium. Learned counsel submitted that the deceased, a 47 year old man, is survived by his wife, three children and father, each being entitled to Rs. 40,000/- towards consortium.

7. Having heard the learned counsel appearing on both sides, this Court will first address the issue of contributory negligence, the main issue involved in this appeal.

8. In Swadling vs. Cooper, (1931) AC 1, the House of Lords defined contributory negligence as the rule that although there may have been negligence on the part of the plaintiff, yet unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, he was entitled to recover, but if by ordinary care he might have avoided them, he was the author of his own wrong. In Halsbury's Laws of England [3rd Edition, V