Annie George & others v. Managing Director, KSRTC & P. M. Johnson

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943** **MACA NO. 1821 OF 2010** ## **IN OP(MV).NO.2600/2005 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **ERNAKULAM** ## **APPELLANTS:** - **1 ANNIE GEORGE, AGED 58 YEARS W/O. N. P. GEORGE, NALIATH HOUSE, MANDANAM, ECO GARDENS, KADUNGAMANGALAM, THIRUVANKULAM P. O.** - **2 TEJ PAUL GEORGE, AGED 30 YEARS S/O.N.P.GEORGE NALIATH HOUSE, MANDANAM, ECO GARDENS, KADUNGAMANGALAM, THIRUVANKULAM P.O.** - **3 ANUJA AMBAT, D/O. N. P. GEORGE, AGED 34 YEARS NALIATH HOUSE, MANDANAM, ECO GARDENS, KADUNGAMANGALAM, THIRUVANKULAM P.O., REPRESENTED BY HER REGISTERED POWER OF ATTORNEY HOLDER - ANNIE GEORGE.** **BY ADVS. SRI.ABRAHAM VAKKANAL (SR.) SRI.DIJO SEBASTIAN SRI.PAUL ABRAHAM VAKKANAL SMT.VINEETHA SUSAN THOMAS** ## **RESPONDENTS:** - **1 MANAGING DIRECTOR, KSRTC, KSRTC BHAVAN, TRIVANDRUM.** - **2 P.M.JOHNSON, AGED 48 YEARS, S/O. MATHEW, PELLISSERRY, ANMADAM, PARALAM VILLAGE, TRICHUR.** **BY ADVS. P.C.CHACKO(PARATHANAM) SRI.JOY GEORGE, SC, K.S.R.T.C.** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1821 OF 2010** **2** ## **J U D G M E N T** The appellants were the petitioners in O.P.(M.V).No.2600 of 2005 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of death of N.P.George (deceased), the husband of the first appellant and the father of appellants 2 and 3. 3. The concise case of the appellants in the claim petition, the relevant for determination of appeal, is that: on 01.01.2005, while the deceased was walking towards the Koratty Busstop along with his brother, a bus bearing registration No.KL-15-4936, driven by the second respondent in a rash and negligent manner, hit the deceased. Although, he was taken to the Little Flower Hospital, Angamaly, his life could not be saved. The bus was owned by the first respondent. The deceased was Pensioner, **MACA NO. 1821 OF 2010** **3** Agriculturalist and Tuition Teacher by profession and earning a monthly income of Rs.15,000/-. The appellants were the dependents of the deceased. The appellants claimed a compensation of Rs.10,35,000/-, which was limited to Rs.10,00,000/-. 4. The respondents 1 and 2 filed a written statement, _inter alia_ , refuting the allegations in the claimants. They contended that the accident occurred due to the negligence on the part of the deceased, who abruptly and negligently crossed the road. 5. A witness was examined on the side of the appellants as PW-1 and Exts.A1 to A12 were marked in evidence. 6. The Tribunal, after analyzing the pleading and materials on record, by the impugned award allowed the claim petition, in part, by permitting the appellants to recover and amount of Rs.2,70,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation along with proportionate cost. The first respondent was directed to pay the compensation amount. **MACA NO. 1821 OF 2010** **4** 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard Shri Abrahan Vakkanal, learned Senior Counsel appearing for the appellants and Shri P.C.Chacko, the learned Standing Counsel appearing for the first respondent. 9. The sole question that emanates for consideration in the appeal is whether the amount of compensation awarded by the Tribunal is reasonable and just. 10. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation', and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. Ext.A6 charge sheet filed by the Koratty Police after **MACA NO. 1821 OF 2010** **5** investigation, substantiates that the accident was caused due to the rash and negligent driving of the offending vehicle by the second respondent. Undisputedly the first respondent was the owner of the bus, therefore, the first respondent is vicariously liable for the liability caused due to the accident. 12. The principal area of dispute in this appeal is with regard to the fixation of the notional income of the deceased. ## **Notional Income of the Deceased** 13. The appellants claimed that the deceased was a retired Principal of the Government College, Manimalakunnu, Piravom; that he was an Agriculturalist; that he used to take Tuitions and was earning a monthly income of Rs.15,000/-. However, the appellants only produced Exts.A12 pension book, which proves that the deceased was getting a monthly pension of Rs.7,135/-. 14. The Tribunal, for lack of pleadings and want of materials, fixed the notional income of the deceased at Rs.84,000/- per annum i.e., Rs.7000/- per month. 15. Although the Tribunal held that the first appellant might **MACA NO. 1821 OF 2010** **6** be drawing family pension, it was also observed that the deceased would have taken Tuitions and would have got engaged himself in other avocations for at least a further period of 10 years. Accordingly, the income was fixed at Rs.84,000/- per annum. 16. Undisputedly as per Ext.A12 pension book, the deceased was found to be drawing a pension of Rs.7135/- per month. According to me, even though there are no materials to prove the agricultural income and the income from tuitions of the deceased, certainly we can accept Ext.A12 pension book in its entirety, keeping in mind that the deceased was only 60 years of age at the time of his death. Thus, I fix the monthly income of the deceased as per Ext.A12, at Rs.7135/- per month. ## **Future Prospects** 17. In **Sarla Verma v. Delhi Transport Corporation** [2009 (6) SCC 121] and in line of subsequent decisions the Hon'ble Supreme Court has held that the dependents of the deceased are also entitled for future prospects. As the deceased was aged 60 years on the date of his death, 10% of the **MACA NO. 1821 OF 2010** **7** compensation has to be added in the compensation for loss of dependency . ## **Multiplier** 18. It is seen that the Tribunal has adopted the multiplier of the deceased as '5'. In light of the law laid down in **Sarla Verma** (supra) **and Pranay Sethi** (supra), the relevant multiplier is '9'. Thus, I fix the multiplier as '9'. ## **Personal living expenses** 19. In **Pranay Sethi** (supra), it is held that personal living expenses has to be deducted. Taking into account that the deceased had 3 legal heirs, I hold that 1/3[rd] of the compensation for loss due to dependency has to be deducted towards his personal living expenses. ## **Compensation for Loss due to Dependenc** y 20. In the light of the parameters fixed above i.e., the age of the deceased at 60 years, his monthly income at Rs.7135/-, the multiplier at 9%, future prospects at 10% and the number of dependency as 3 and the personal living expenses of the **MACA NO. 1821 OF 2010** **8** deceased has to be deducted by 1/3[rd] , I re-fixed the compensation for loss of dependency at Rs.5,65,092/-, instead of Rs.2,40,000/fixed by the Tribunal. ## **Conventional Heads of Compensation** 21. In Clause (viii) of paragraph 61 of the **Pranay Sethi** (supra), the Hon'ble Supreme Court has fixed the compensation under conventional heads namely funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, 15,000/- and 40,000/respectively. 22. In the light of the ratio deducted in **Pranay Sethi** (supra), I enhance the compensation under heads funeral expenses from Rs.10,000 to Rs.15,000 and loss of estate from Rs.5000 to Rs.15,000/-. 23. Taking note of the fact that appellants 2 and 3 were aged 25 and 29, respectively at the time of death of the deceased, I hold that the only the first appellant is entitled for spousal consortium at Rs.40,000/-. 24. With respect to the other heads of the compensation **MACA NO. 1821 OF 2010** **9** awarded by the Tribunal, I find to the same to be reasonable and just. 25. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited precedents, I am of the definite opinion that the appellants are entitled for enhancement of compensation as modified as re-calculated above, and given in the table below for easy reference. |SI.No.|Head of claim|Amount awarded<br>by the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transport to<br>hospital|5000|5000| |2|Funeral<br>expenses|10000|15000| |3|Pain and<br>sufferings|10000|10000| |4|Loss of estate|5000|15000| |5|Loss of<br>consortium|Nil|40000| **MACA NO. 1821 OF 2010** **10** |6|Loss of<br>dependency|2,40,000/-|5,65,092| |---|---|---|---| ||Total|2,70,000|6,50,092| In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.3,80,092/- with interest at the rate of 6% per annum on the enhanced compensation from the date of claim petition till the date of deposit along with proportionate costs. The first respondent shall deposit the enhanced compensation along with interest and proportionate cost within a period of 'three months' from the date of receipt of copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellants in accordance with law. **Sd/-** **C.S.DIAS, JUDGE** AS **MACA NO. 1821 OF 2010** **11** The appellant is entitled to a sum of Rs.30,474/- (Rupees Thirty thousand four hundred and and seventy four only) being their proportionate cost in this appeal. ## Memo of costs for the appellants Court Fee paid : Rs.100/Stamp on vakalath : Rs.10/Senior Advocate's Fee : Rs.38,782/- (as per Rule 18) Junior Advocate's Fee : Rs.19,391/- (as per Rule 25 of the Advocate Fee Rules) Cost incurred in getting L.C. judgment and decree : Petition Fee : Total : Rs.5/Rs.50/------------------------------Rs.58,338/- ============ Proportionate cost for the appellant in M.A.C.A.No.1821 of 2010: : Rs.30,474/- (Rupees Thirty thousand four hundred and seventy four only) Sd/Joint Registrar Signed on 31.03.2022 **MACA NO. 1821 OF 2010** **12** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A1 TRUE COPY OF THE SALE DEED NO.98/1968 OF SRO MULAMTHURUTHY.** **ANNEXURE A2 ARTICLE TITLED “HOW PURE, ROOF RAINWATER?” ON RAIN WATER HARVESTING BY PREMA MANMADHAN IN CONVERSATION PROF N P GEORGE IN “THE HINDU” ON 19TH JULY 2004** **ANNEXURE A3 ARTICLE ON COCONUT FARMING PUBLISHED BY PROF N P GEORGE IN “KRISHIKKARAN” NOVEMBER 2004 ISSUE ANNEXURE A4 ARTICLE TITLED “ THE FARMER IN HIS NATURAL DEN” ON EXCESSIVE USE OF CHEMICALS HAS AN ADVERSE EFFECT ON AGRICULTURE BY LEELA MENON IN CONVERSATION PROF N P GEORGE, THE EXMAHARAJA'S COLLEGE PRINCIPAL, PUBLISHED IN “THE HINDU” DATED NIL ANNEXURE A5 COPY OF CERTIFICATE FROM M/S PEEKAY TREE CROPS DEVELOPMENT FOUNDATION DATED 21.02.2005.**