Anu Mathew, Sinoj Mathew and Lijy Ann Mathew v. Rajendran Nair and The Managing Director, KSRTC

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 11TH DAY OF JULY 2019 / 20TH ASHADHA, 1941** **MACA.No.467 of 2014** **AGAINST THE AWARD IN OPMV 1631/2005 of ADDITIONAL DISTRICT COURT& MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA DATED 07-10-2013** ## **APPELLANTS/PETITIONERS 1 TO 3:** **1 ANU MATHEW SPRING FIELD HOUSE, THENGUMKAVU P.O., PRAMADOM VILLAGE, KOZHENCHERRY TALUK. PATHANAMTHITTA DISTRICT 2 SINOJ MATHEW SPRING FIELD HOUSE, THENGUMKAVU P.O., PRAMADOM VILLAGE, KOZHENCHERRY TALUK. PATHANAMTHITTA DISTRICT 3 LIJY ANN MATHEW SPRING FIELD HOUSE, THENGUMKAVU P.O., PRAMADOM VILLAGE, KOZHENCHERRY TALUK. PATHANAMTHITTA DISTRICT BY ADVS. SRI.T.K.KOSHY SMT.V.V.RISANI SRI.SABU.I.KOSHY** ## **RESPONDENTS/ RESPONDENTS 1&2:** **1 RAJENDRAN NAIR S/O.KUTTAPPAN NAIR, LEKSHMIVILASAM HOUSE, PANCHAYATPADI, ARUAPPULAM MURI & VILLAGE, KONNI, PIN-689691. 2 THE MANAGING DIRECTOR K.S.R.T.C., EAST FORT, THIRUVANANTHAPURAM, PIN695001. BY ADVS. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. FOR R2 SMT.K.S. SUDHA FOR R1** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA.No.467 of 2014** -2- ## M.A.C.A. No.467 of 2014 --------------------------------------- ## JUDGMENT The claimants in a proceedings for compensation before the Motor Accidents Claims Tribunal have come up in the appeal challenging the quantum of compensation fixed by the Tribunal. 2. A 25 year old Polymer Engineer died in a Motor Accident on 17.08.2005 involving a vehicle owned by the Kerala State Road Transport Corporation. A sum of Rs. 15,00,250/- was the claim made in the proceedings. The mother and the younger siblings of the deceased were the claimants. Having regard to the facts and circumstances, the Tribunal granted to the claimants a sum of Rs.4,45,000/-by way of compensation. It is aggrieved by the inadequacy of the said compensation that the claimants have come up in this appeal. 3. Heard the learned counsel for the appellant as also the learned counsel for the Kerala State Road Transport ## **MACA.No.467 of 2014** -3- Corporation. 4. It is seen that the tribunal has reckoned the monthly income of the deceased at Rs.5000/- for the purpose of fixing the compensation for loss of dependency. Likewise, in the matter of fixing the compensation for loss of dependency, the Tribunal had applied the multiplier '13' having regard to the age of the mother of the deceased. 5. No doubt, in the case of this nature, the Tribunal should have determined the multiplier to be applied having regard to the age of the deceased. Coming to the income, the pleading of the claimants was that the deceased was on a private employment earning a yearly salary of Rs.2,44,300/-. In other words, it was their case that the deceased was earning a sum of Rs.20,358/- per month. Though a salary certificate of the deceased was produced in the proceedings as Ext.A14, as the same was not proved by examining the person who has issued the same, the Tribunal has not accepted the salary certificate. It is in the said circumstances that the Tribunal has reckoned the monthly income of the deceased at Rs.5000/- . ## **MACA.No.467 of 2014** -4- 6. It is seen from the materials on record that the deceased was a Graduate Engineer. Ext.A7 is the degree certificate issued to him from the Mahatma Gandhi University. Ext.A8 indicate that the deceased had undergone 125 hours of professional training at Keltron. Ext.A9 is a certificate of merit issued to the deceased by M/s.Idea Information Technology and Communication Centre. In so far as it is established that the deceased was a Graduate Engineer, even if it is taken that he has not proved the income, according to me, the Tribunal should have reckoned the monthly income of the deceased at least at Rs.12,000/- in the context of the accident took place in the year 2005. I am taking this view in the light of the decisions of the Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited, (2011) 13 SCC 236 and Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd., (2014) 2 SCC 735, where the Apex Court has reckoned the monthly income of persons who were unable to prove their income, at Rs.4500/- and 6500/- in the context of accidents took place in the year 2004 and 2008 respectively. In ## **MACA.No.467 of 2014** -5- Ramachandrappa , the person concerned was a casual labourer and in Syed Sadiq, the person concerned was a vegetable merchant. If the monthly income of a casual labourer can be estimated notionally at Rs.4500/- in the context of the accident took place in the year 2004, certainly, the monthly income of a Graduate Engineer, in the context of the accident took place in the year 2005, can be estimated at Rs.12,000/-. The threshold limit for payment of income tax under the Income Tax Act during 2004-2005 was Rs.50,000/and a person who is earning income up to Rs.1,50,000/during the said year was obliged to pay income tax at the rate of 20%. Insofar as the income of the deceased is liable to be reckoned as 40% more of the income earned for comprehending the future prospects in life, it can be taken that the claimants would have paid 20% out of the income estimated, by way of income tax. The monthly income less the income tax would, therefore, come to Rs.9,600/-. If compensation for loss of dependency is worked out on that basis, the same would come to Rs.14,51,520/(9600x140/100x12x18/2). The Tribunal has granted only a ## **MACA.No.467 of 2014** -6- sum of Rs.3,90,000/- under that head to the claimants. The claimants are, therefore, entitled to Rs.10,61,520/- by way of additional compensation for loss of dependency. Likewise, only a sum of Rs.10,000/- has been granted by the Tribunal to the claimants towards compensation for loss of estate. In the light of the decision of the Apex Court in National Insurance Company Ltd v. Pranay Sethi [2017(4) KLT 662 (SC)] , having regard to the fact that the accident is one that took place in the year 2005, according to me, at least a sum of Rs.12,500/- should have been granted by the Tribunal under the head. The claimants are, therefore, entitled Rs.2,500/- more under that head. Again, no compensation is granted to the claimants towards pain and sufferings. A sum of Rs.10,000/- at least should have been granted by the Tribunal under that head also. Towards compensation for loss of love and affection, only a sum of Rs.25,000/- has been granted. In the light of the decision of the Apex Court in Magma General Insurance Co. Ltd. v. Nanu Ram and others (2018 ACJ 2782), the claimants should have been ## **MACA.No.467 of 2014** -7- granted a sum of Rs.40,000/- each by way of compensation under that head. In other words, the claimants are entitled to an additional compensation of Rs.95,000/- under that head. Thus, the total additional compensation payable to the claimants would come to Rs.11,69,020/-. 7. In the light of the decision of the Apex Court in Pranay Sethi, the appropriate compensation towards funeral expenses, having regard to the fact that the accident is one that took place in the year 2005, is Rs.12,500/-. In other words, Rs.12,500/- granted by the Tribunal in excess of the eligibility of the claimants has to be adjusted against the additional compensation to which they are found entitled. If that is so, the net additional compensation payable to the claimants would come to Rs.11,56,520/- 8. It is seen that though the Tribunal has worked out the compensation payable at Rs.4,55,000/-, the award is passed only for a sum of Rs.4,45,000/-. The claimants are therefore, entitled to Rs.10,000/- more along with the additional compensation. ## **MACA.No.467 of 2014** -8- 9. In the result, the appeal is allowed, granting to the claimants Rs.11,66,520/- by way of additional compensation. Needless to say, the claimants will be entitled to interest for the additional amount of compensation at the rate of 7.5%. The parties are at liberty to move the Tribunal for directions as regards deposit of the additional amount of compensation granted and for the disbursal thereof. ## **SD/-** **P.B.SURESH KUMAR** **JUDGE** SJ