GOPINATHAN R. and others v. Managing Director, Kerala State Road Transport Corporation

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 8[TH] DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944 MACA NO. 1749 OF 2013 ``` ``` AGAINST THE AWARD DATED 12.10.2012 IN O.P(M.V) NO.1129/2007 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1GOPINATHAN R., AGED 59 YEARS, S/O.RAMASWAMY, JAYA BHAVAN, POOVATHOOR WEST.P.O., MAVADI, KOTTARAKARA, KOLLAM DISTRICT. 2JAGATHAMMA W/O.GOPINATHAN.R., JAYA BHAVAN, POOVATHOOR WEST.P.O., MAVADI, KOTTARAKARA, KOLLAM DISTRICT. 3JAYAR. W/O. MOHAN BOSE, AGED 40, JAYA BHAVAN, POOVATHOOR WEST.P.O., MAVADI, KOTTARAKARA, KOLLAM DISTRICT. 4VIJAYAKUMARI.J. AGED 32, D/O. GOPINATHAN.R.,JAYA BHAVAN, POOVATHOOR WEST.P.O., MAVADI, KOTTARAKARA, KOLLAM DISTRICT. BY ADV SRI.K.N.RADHAKRISHNAN(THIRUVALLA) ``` ## **`RESPONDENT/RESPONDENT:`** ``` MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM-695 001. BY ADVS. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. SRI.ALEX ANTONY SEBASTIAN P.A.,SC, K.S.R.T.C ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1749 of 2013 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 08[th] day of November, 2022** This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Pathanamthitta (for short ‘the Tribunal’) on 12.10.2012 in O.P.(MV) No.1129/2007. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondent in accordance with their status in the Original Petition. 2. The petitioners are legal heirs and dependents of one Mr.Jayakumar, who died on account of the injuries sustained in a motor accident occurred on 27.06.2007. He was aged 32 years at the relevant time. A K.S.R.T.C bus bearing Registration No.KL 15 2091 dashed against the Motorcycle bearing Registration No.KL-24/5953 ridden by Mr.Jayakumar and thereby he sustained serious injuries. He succumbed to those immediately thereafter. The accident was allegedly occurred due to the rash and negligent driving of the K.S.R.T.C bus by its driver. Managing Director of the ``` M.A.C.A.No.1749 of 2013 ``` ``` 3 ``` K.S.R.T.C bus was arrayed as the sole respondent in the Original Petition. Rs.20,00,000/- was claimed in the Original Petition as compensation. 3. The sole respondent has raised a contention in the written statement that the accident was occurred due to the rash and negligent riding of the Motorcycle by the deceased himself and that the compensation claimed is exorbitant. Petitioners’ evidence before the Tribunal consists of the oral testimony of the 3[rd] petitioner as PW1, one witness as PW2 and Exts.A1 to A11. Evidence of any nature was not let in by the sole respondent. The Tribunal found that the driver of the K.S.R.T.C bus was negligent and fixed the liability on him and thereby vicarious liability was fastened on the owner of the said vehicle to compensate the petitioners. 4. The Tribunal has arrived at Rs.3,42,000/- as the sum payable as compensation and directed the owner to deposit the same with interest at the rate of 7.5% per annum from the date on which the Original Petition was filed till the date on which the amount was realised alongwith Rs.6,000/as proportionate cost. It is contended by the learned counsel ``` M.A.C.A.No.1749 of 2013 ``` ``` 4 ``` that the quantum awarded by the Tribunal as compensation is disproportionate to the injuries and therefore falls on the lower side. According to him, though the petitioners are entitled to get compensation under the conventional heads of funeral expenses and loss of consortium in accordance with the rates fixed by the Apex Court in **National Insurance Company Limited v. Pranay Sethi [2017 (4) KLT 662 (SC)],** the Tribunal failed to award compensation in tune with the entitlement. 5. It was further contended by the learned counsel that the monthly income was fixed by the Tribunal notionally as Rs.4,000/- despite claims raised by the petitioners that the deceased was getting Rs.25,000/- monthly. According to him, the sister of the deceased mounted the witness box and tendered oral evidence about the job and monthly income of the deceased. According to him, the Manager of the Bank wherein the deceased was maintaining an account was also examined as PW2. The statement of accounts of the deceased was also marked in evidence as Ext.A10. Relying on Ext.A10, it was urged by the learned counsel that an ``` M.A.C.A.No.1749 of 2013 ``` ``` 5 ``` average of 500 Dollars has been credited into the account every month. There was no challenge on that aspect during cross examination of PW2. But it is pertinent to note from Ext.A10 that the credit as spoken by PW2 was maintained till November, 2006 and was not found as made after November, 2006. Therefore, this Court is declined to rely on Ext.A10 to take a view that 500 Dollars have been credited into the account maintained by the deceased with the Bank, every month. 6. In the aforesaid circumstances that the Tribunal was declined to take Rs.25,000/- or any amount near to that as the monthly income of the deceased. A National Trade Certificate was issued in favour of the deceased by the National Council for Vocational Training, Ministry of Labour, Government of India and that is marked in evidence as Ext.A9. It shows that the deceased had successfully completed the trade test in the trade of Fitter. PW1 deposed that the deceased was working abroad as a Fitter. An appointment letter issued from Eastern International L.L.C, Sharjah on 12.06.2007 is produced and marked in evidence ``` M.A.C.A.No.1749 of 2013 ``` ``` 6 ``` as Ext.A8. The appointment letter only shows that an offer has been made to the deceased to join Eastern International L.L.C as a Fitter. It was dated on 12.06.2007. It is pertinent to note that the accident was occurred on 27.06.2007. Therefore, it cannot even be presumed that the deceased had joined as a Fitter in Eastern International L.L.C, Sharjah. However, this Court is convinced from Ext.A9 that the deceased has completed his course as a Fitter. But, there is want of evidence to show that the deceased was working with Eastern International L.L.C, Sharjah. It can be taken for granted that if Mr.Jayakumar had not been met with the motor accident, he would have joined Eastern International L.L.C, Sharjah as a Fitter on the basis of Ext.A8 appointment letter. In the appointment letter the salary offered was shown as 1850 Dirhams, which according to the counsel is equivalent to Rs.41,708/-. 7. According to the petitioners, the deceased was aged 32 years at the relevant time of his death. Ext.A7 reveals the date of birth of the deceased as 25.05.1975. This Court is convinced from Ext.A7 that the deceased was aged ``` M.A.C.A.No.1749 of 2013 ``` ``` 7 ``` 32 years at the time of his death. Since he was qualified to work as a Fitter, this Court is inclined to fix Rs.12,000/notionally as his monthly income. The multiplier liable to be taken is 16. The deceased being 32 years, 40% is added towards future prospects. Being a bachelor half of the monthly income is deducted towards personal expenditure met by him had his death not occurred in the motor accident. Thus Rs.8,400/- is arrived at as the monthly income for computation of compensation for loss of dependency. In the calculation, the petitioner is entitled to get Rs.16,12,800/(Rs.8,400/- x 12 x 16). Rs.2,64,000/- being the sum stands awarded by the Tribunal, petitioners will get Rs.13,48,800/additionally. 8. It is noticed that the Tribunal has awarded Rs.20,000/- towards loss of estate. In view of **Pranay Sethi** supra, the petitioners are entitled to get only Rs.15,000/under that conventional head. Therefore, Rs.5,000/- needs to be deducted. Under the head loss of love and affection, Rs.30,000/- stands awarded in favour of petitioners 1 and 2 and Rs.10,000/- in favour of petitioners 3 and 4. Petitioners ``` M.A.C.A.No.1749 of 2013 ``` ``` 8 ``` 1 and 2 being the parents of the deceased are entitled to get filial consortium at the rate of Rs.40,000/- each. Therefore, Rs.30,000/- awarded under the head love and affection is liable to be deducted from Rs.80,000/- fixed now as the total compensation payable for loss of consortium. Thus, petitioners 1 and 2 are entitled to get only Rs.50,000/- as compensation for loss of consortium. Petitioners 3 and 4 being the siblings and married sisters of the deceased, they are not entitled to get any amount as compensation under the head loss of consortium. Under the head funeral expenses Rs.10,000/- stands awarded by the Tribunal and therefore the petitioners will get Rs.5,000/- additionally. Rs.10,000/was found awarded as compensation to the siblings survived towards loss of love and affection, for which they have no entitlement and therefore, the same is liable to be deducted from the total sum found payable as additional compensation. 9. When compensation is reassessed in the above manner, the petitioners will get Rs.13,78,800/- (Rupees Thirteen Lakhs Seventy Eight Thousand and Eight Hundred only) as additional compensation. The said amount would ``` M.A.C.A.No.1749 of 2013 ``` ``` 9 ``` carry interest at the rate of 7.5% per annum from 17.09.2007, date of filing of the Original Petition till the date of realisation, excluding the period of delay which stands exempted by order passed by this Court on 02.02.2021 in C.M.A. No.1/2013. The sole respondent/ the Managing Director of the K.S.R.T.C bus shall deposit the aforesaid amount with interest fixed as above and also the sum stands awarded by the Tribunal together with interest fixed by it and cost of Rs.6,000/- (if not already paid) within a period of two months from the date on which a certified copy of this judgment is received by it. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB