Dr. Ashalatha R. & Ors. v. Mammen Mathew & KSRTC

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 14[TH] DAY OF NOVEMBER 2023 / 23RD KARTHIKA, 1945 ``` ## **`MACA NO. 1494 OF 2012`** ``` AGAINST THE AWARD DATED 08.08.2011 IN OP(MV) 231/2008 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM`** ## **`APPELLANT/PETITIONERS:`** ``` 1DR.ASHALATHA.R. THONIPPURACKAL HOUSE, CHINGAVANAM P.O., KOTTAYAM. 2NAMITHA A.G. (MINOR) REPRESENTED BY HER MOTHER ASHALATHA, THONIPPURACKAL HOUSE, CHINGAVANAM P.O., KOTTAYAM. 3NAYANA A.G. (MINOR) REPRESENTED BY HER MOTHER ASHALATHA, THONIPPURACKAL HOUSE, CHINGAVANAM P.O., KOTTAYAM. 4K.K. SANTHAKUMARI W/O.LATE T.V.BHASKARAN, GIGI NIVAS, POONTHOPPU WARD AVALUKUNNU, ALAPPUZHA. BY ADV SRI.P.M.NATESAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1MAMMEN MATHEW MAPPOTTILPUTHEN VEEDU, UMAYATTUKARA, KALLISSERY CHENGANNOOR, PIN- 689 124. 2THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM, PIN-695 001. ``` ``` BY ADVS. P.C.CHACKO(K) ALEX ANTONY SEBASTIAN P.A. - SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.11.2023, ALONG WITH MACA.774/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1494 OF 2012 & MACA NO. 774 OF 2012 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 14[TH] DAY OF NOVEMBER 2023 / 23RD KARTHIKA, ``` ## **`1945`** ## **`MACA NO. 774 OF 2012`** ``` AGAINST THE AWARD DATED IN OP(MV) 231/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM ``` ## **`APPELLANT/2ND RESPONDENT:`** ``` MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O., TRIVANDRUM – 23 REPRESENTED BY ITS CHIEF LAW OFFICER. ``` ``` BY ADVS. SRI.P.K.BEHANAN,SC,KSRTC ALEX ANTONY SEBASTIAN P.A. ``` ## **`RESPONDENTS/PETITIONERS:`** ``` 1DR.ASHALATHA.R. THONIPPURACKAL HOUSE, CHINGAVANAM P.O., KOTTAYAM. PIN – 686 531. ``` ``` 2NAMITHA A.G. (MINOR) REPRESENTED BY HER MOTHER ASHALATHA R., THONIPPURACKAL HOUSE, CHINGAVANAM P.O., KOTTAYAM. PIN – 686 531. ``` ``` 3NAYANA A.G. (MINOR) REPRESENTED BY HER MOTHER ASHALATHA R., THONIPPURACKAL HOUSE, CHINGAVANAM P.O., KOTTAYAM. PIN – 686 531. ``` ``` MACA NO. 1494 OF 2012 & MACA NO. 774 OF 2012 ``` ``` 3 ``` ``` 4K.K. SANTHAKUMARI W/O.LATE T.V.BHASKARAN, GIRI NIVAS, POONTHOPPU WARD AVALUKUNNU, ALAPPUZHA. PIN – 688006 ``` ``` BY ADV SRI.P.M.NATESAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.11.2023, ALONG WITH MACA.1494/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1494 OF 2012 & MACA NO. 774 OF 2012 ``` ``` 4 ``` ## **`JUDGMENT`** ## **`[MACA Nos.1494/2012, 774/2012]`** Both these appeals arise from O.P.(M.V.) No.231/2008 on the files of the Motor Accident Claims Tribunal, Kottayam. One appeal is submitted by the claimants seeking enhancement of compensation, whereas the other appeal is submitted by the 2[nd] respondent challenging the quantum of compensation ( For convenience, the parties are hereinafter referred to as per their respective ranks in the claim petition) 2. The said claim petition was submitted by the claimants seeking compensation for the death of one Giresh B.B., who died due to the injuries sustained in a motor accident that occurred on 06.11.2006. The accident occurred when the motorcycle ridden by the deceased was hit by a K.S.R.T.C. bus bearing Registration No.KL 15/5037. 3. According to the claimants, the deceased was working as an Assistant Manager of M/S.Traco Cable Company Limited, with a monthly income of Rs.19670/-. He ``` MACA NO. 1494 OF 2012 & MACA NO. 774 OF 2012 ``` ``` 5 ``` was aged 40 years and 10 months as on the date of the accident. The 1st appellant was the wife, 2nd and 3rd appellants were the children, and the 4th respondent was the mother of the deceased. The claim petition was submitted in such circumstances seeking compensation. 4. The 1st respondent, the driver of the vehicle, remained ex-parte. The 2nd respondent, the Managing Director of K.S.R.T.C. and the owner of the bus filed a written statement disputing the negligence on the part of the driver. The quantum of compensation was also seriously disputed by them. 5. The evidence in this case consists of oral testimonies of PWs.1 and 2 and Exts.A1 to A16 from the side of the claimants. No evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 1st respondent and therefore, being the employer of the 1st respondent, the 2nd respondent herein ``` MACA NO. 1494 OF 2012 & MACA NO. 774 OF 2012 ``` ``` 6 ``` was held liable to pay the compensation. The quantum of compensation was fixed as Rs.22,56,040/-, and the 2nd respondent was directed to deposit the said amount along with interest @ 7.5% per annum from the date of petition till realisation. The claimants submitted M.A.C.A. No.1494/2012 in such circumstances seeking enhancement of compensation, whereas the 2nd respondent/Managing Director of K.S.R.T.C. filed M.A.C.A. 774/2012 challenging the quantum of compensation. 6. Heard Sri.P.M. Nadesan, learned counsel, appearing for the claimants and Sri. Alex Antony Sebastian P.A. learned Standing Counsel appearing for the 2[nd] respondent. 7. The main dispute, in this case, is relating to the quantum of compensation. According to the claimants, the amounts awarded towards loss of dependency and other heads were significantly on the lower side, whereas according to the 2nd respondent, the amounts awarded under those ``` MACA NO. 1494 OF 2012 & MACA NO. 774 OF 2012 ``` ``` 7 ``` heads were exorbitant. It is discernible from the records that the Tribunal accepted the monthly income of the deceased as Rs.19,670/- which was supported by Ext.A16 and proved by examining PW2, a competent officer of the Company, where the deceased was working. The only dispute in this regard appears to be in relation to the lack of any addition towards future prospects. Considering the fact that the deceased was a person working in a regular employment with a regular monthly income, an addition of 30% of the monthly income should have been made in the light of the principles laid down in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680]. It is evident from the records that the deceased had passed the age of 40 years as on the date of the accident, and therefore, he would fall under the category of persons coming within the age of 40 to 50. Thus, as per the principles laid down in Pranay Sethi’s case, the addition to be made is 30%. This is mainly because the Ext.A9 certificate would clearly indicate that he was a regular employee of an ``` MACA NO. 1494 OF 2012 & MACA NO. 774 OF 2012 ``` ``` 8 ``` establishment. 8. However, at this juncture, the learned counsel for the 2[nd] respondent points out that the Tribunal has not deducted any tax while assessing the compensation even though, going by the monthly income of the deceased, it would come within the taxable limits. The said contention has to be accepted, as the same is in tune with the settled position of law. It is evident that as per the tariff of tax applicable at the relevant time, tax payable for the monthly income above Rs.1,00,00/- and up to Rs.1,50,000/- was 10% of the same. Annual income beyond Rs.1,50,000/- up to Rs.2,50,000/- was taxable @ 20%. While computing the tax payable with respect to the income of the deceased at the relevant time, the amount of tax would come to Rs.22,208/(Rs.5,000 + 17,208). The annual income of the deceased was Rs.2,36,040/-. After deducting the tax payable, the annual income would come to Rs.2,13,832/-. An addition of 30% has to be made to that amount, which would come to ``` MACA NO. 1494 OF 2012 & MACA NO. 774 OF 2012 ``` ``` 9 ``` Rs.64,149.6/-. Thus, the total annual income with an addition towards future prospects would come to Rs.2,77,982/-. While reassessing the compensation for loss of dependency with the above monthly income, the amount would come to Rs.31,27,298/- (Rs.2,77,982 x 15 x ¾). The amount already awarded by the Tribunal under this head is Rs.22,03,040/-; therefore, the additional amount would come to Rs.9,24,258/-. 9. When moving on to the other heads, it can be seen that the Tribunal awarded Rs.5,000/- each towards funeral expenses and loss of estate, which are extremely on the lower side. As per the observations made by the honourable Supreme Court in **Pranay Sethi’s** case, the proper amounts that ought to have been granted under these heads were Rs.15,000/- each and therefore, a further sum of Rs.10,000/each under these heads are awarded. Similarly, an amount of Rs.10,000/- alone was granted towards loss of consortium whereas, the appellants being the wife, children and mother of the deceased, were entitled to Rs.40,000/- each in the light ``` 10 ``` ## **`MACA NO. 1494 OF 2012 & MACA NO. 774 OF 2012`** of the observations made in **Magma General Insurance Co.Ltd v. Nanu Ram & Others [2018 (3) KLT OnLine 3095]** and **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [ 2020 (3) KHC 760]. At this juncture, the learned counsel for the 2[nd] respondent would point out that the Tribunal has awarded an amount of Rs.15,000/- towards love and affection, which was not at all warranted in the light of the observations made in **Satinder Kaur’s** case. The said contention has to be accepted, in view of the fact that it was categorically held in the said decision that, when compensation is awarded for loss of consortium, no separate amount needs to be granted for loss of love and affection. Therefore, Rs.15,000/- awarded by the Tribunal for love and affection is adjusted against the additional amount awarded towards the loss of consortium. Thus, the additional amount under the head would be Rs.1,35,000/-. 10. In such circumstances, the total additional amount receivable by the appellant would come to Rs.10,79,258/- ``` MACA NO. 1494 OF 2012 & MACA NO. 774 OF 2012 ``` ``` 11 ``` (9,24,258 + 20,000 + 1,35,000) In the light of the aforesaid observations and findings, both these appeals are disposed of by modifying the award dated 08.08.2011 in O.P.(M.V.) No.231/2008 passed by the Motor Accident Claims Tribunal, Kottayam, by granting an additional amount of Rs.10,79,258/- (Rupees ten lakhs seventy nine thousand two hundred and fifty eight only) and the said amount shall be deposited by the 2[nd] respondent, along with interest and proportionate costs as ordered by the Tribunal within a period of three months from the date of receipt of a copy of this judgment. Considering the fact that M.A.C.A. 1494/2012 was filed along with a petition to condone the delay of 251 days, it shall be open for the 2[nd] respondent to exclude the said period while calculating the interest for the additional amount awarded by the Tribunal. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs