Kali and others v. K.N. Krishnan; Kerala State Road Transport Corporation; Subramanian; and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 25[TH] DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943** ## **MACA NO. 1023 OF 2009** **AGAINST THE AWARD DATED 1.3.2007 IN OPMV 120/2004 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL TIRUR** ## **APPELLANTS/PETITIONERS:** 1 KALI, D/O KUMARAN AGED 61 YEARS 2 KARTHIAYANI, D/O THAMI AGED 44 YEARS 3 SARADA, D/O THAMI AGED 26 YEARS 4 GEETHA, D/O THAMI AGED 22 YEARS ALL ARE RESINING AT THAZHATHEPURACKAL HOUSE, KALADI PO, PONNANI TALUK, MALAPPURAM DISTRICT BY ADVS. SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN ## **RESPONDENTS/RESPONDENTS 1 AND 2 AND SUPPLEMENTAL PEITITONER** **NO.6:** 1 K.N.KRISHNAN, S/O NAGAN, AGED 45 YEARS, KOTTAPALA HOUSE, PARUTHIPULLY, PALAKKAD. 2 MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION,, FORT,THIRUVANANTHAPURAM. 3 SUBRAMANIAN, S/O THAMI, AGED 43 YEARS, THAZHATHEPURACKAL HOUSE, KALADI P.O., PONNANI TALUK,MALAPPURAM DISTRICT. (RESPONDENT NOS.1 AND 3 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 21/10/2021 IN I.A NO.1/2021 IN MACA 1023/2009 BY ADVS. SRI.JOY GEORGE, SC, K.S.R.T.C. ALEX ANTONY SEBASTIAN P.A.-R2 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 25.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1023 of 2009 2 ## **JUDGMENT** This appeal has been filed against the award in O.P.(MV) No. 120/2004 on the file of the Principal Motor Accidents Claims Tribunal, Tirur. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation due to the death of Raja @ Babu. The claimants are the parents and siblings of deceased. 2. It is alleged that the deceased died out of motor vehicle accident on 15.9.2003, while the deceased was travelling in an autorickshaw bearing registration No.KL-10/P/3422 driven by the 3rd respondent and when the autorickshaw reached Kuttippuram, K.S.R.T.C. bus bearing registration No.KL-15-3858 came from the opposite direction, dashed against the autorickshaw, resulting in fatal injuries to the deceased Raja @ Babu (herein after referred as 'deceased'). On the way to the hospital, he succumbed to injuries. It is alleged that the accident happened due to the rash and negligent driving of 1st respondent, driver of the K.S.R.T.C. bus and the driver of the autorickshaw, 3rd respondent. 2nd respondent is the owner of the bus. Respondents 4 and 5 are owner and insurer of the autorickshaw. MACA.No.1023 of 2009 3 3. Before the Tribunal, the 1st and 2nd respondent filed written statement contending that the accident happened due to the negligence of the 3rd respondent. It is also contended that the compensation claimed is highly excessive. 4. The 3rd and 4th respondents filed joint written statement contending that the accident happened due to the rash and negligent driving of the driver of the bus. The 5th respondent filed written statement admitting the policy coverage with respect to the autorickshaw and further contended that the accident happened due to the negligent driving of the driver of the bus/1st respondent. 5. 2nd appellant/3rd claimant was examined as PW1. Exts.A1 to A7 were marked from the side of the appellants/claimants. Exts. B1 and B2 were marked from the side of the 3rd and 4th respondents. 6. Tribunal on evaluating the pleadings and evidence found that the driver of the bus-1st respondent was responsible for the accident and 2nd respondent K.S.R.T.C. was held liable for the accident. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellants/claimants are before this Court in this appeal. MACA.No.1023 of 2009 4 8. 1st and 3rd respondents were deleted from party array. The 2nd respondent appeared through Standing Counsel for the K.S.R.T.C. Heard the learned counsel for the appellants as well as the learned Standing Counsel for the 2nd respondent. Lower court records were called for and perused. 9. The compensation awarded by the Tribunal under various heads are as follows: **==> picture [320 x 251] intentionally omitted <==** **----- Start of picture text -----**<br> Amount awarded<br>Compensation allowed at<br>different heads<br>Rs.<br>Transport to hospital 1800-00<br>Pain and suffering of the<br>5000-00<br>deceased<br>Loss of dependency 1,15,200-00<br>Funeral Expenses 3,000-00<br>Total 1,25,000-00<br>**----- End of picture text -----**<br> 10. According to the learned counsel for the appellants/claimants (herein after be referred as claimants), the deceased was a painter, aged 24 years and he was the only breadwinner of the family of the deceased, who are the parents and sisters. During the pendency of the claim petition, 1[st] claimant, the father of the deceased died and supplementary 6[th] claimant, the MACA.No.1023 of 2009 5 ## brother of the deceased was impleaded. 11. According to the learned counsel for the claimants, the deceased was a painter, but the Tribunal notionally fixed monthly income as Rs.3,500/-, which according to him is very low. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Hon'ble Apex Court notionally fixed the monthly income of a coolie in the year 2004 at Rs.4,500/-. It was held that a claimant working as coolie cannot be expected to produce any documentary evidence to substantiate their claim. It is also held that in the absence of any other evidence contrary to the claim made by the claimant, the Tribunal should have accepted the claim of the claimant. It is also held that in a given case if the claim made is so exorbitant or if the claim made is contrary to ground realities the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work which may include the ground realities prevailing at the relevant point of time. 13. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735],** Apex Court was dealing with an appeal which arose out of an accident occurred on 14-08-2008. Claimant was a vegetable vendor aged about 24 MACA.No.1023 of 2009 6 years who sustained injury to the lower end to right femur and left upper arm and his right leg had to be amputated. Question arose about his monthly income. Following the principles in Ramachandrappa's case it was held that there is no reason for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. It is further found that going by the present state of economy and rising prices in agricultural products a vegetable vendor is reasonably capable of earning Rs.6,500/- per month. 14. In the present case, the accident occurred in the year 2003. The deceased was a painter aged 24 years old. The following principles laid down in the above said decisions the monthly income of the deceased can be taken as RS.4,000/-. 15. In **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]** the Apex Court laid down the guidelines for determination of quantum of compensation in case of death in motor accident. It has been held that compensation awarded should be just compensation and that the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. The assessment of compensation though involve certain hypothetical considerations, MACA.No.1023 of 2009 7 should nevertheless be objective and justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication and fairness and uniformity in decision making process and the decisions. Though it is not possible to have a mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. 16. In **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** a Constitution Bench of the Apex Court dealt with the concept of 'just compensation' and held that the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of “just compensation” has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. It is also emphasized that the compensation should not be a windfall nor be a pittance. 17. In **Sarla Verma's** case the Apex Court made a rule of addition of 50% of actual salary in view of the imponderables and uncertainties towards future prospects where the deceased has MACA.No.1023 of 2009 8 permanent job and was below 40 years and the said addition was limited to 30% if the age of the deceased was 40 – 50 years and further it was prescribed that there should be no addition where the age of deceased is more than 50 years. 18. In **Pranay Sethi's** case, the Constitution Bench laid down that in case of self employed persons or persons with fixed salary there should be addition of 10% in between the age group of 50 – 60 years and an addition of 25% between the age group of 40 - 50 and 40% where deceased was below 40 years and it is also held that the established income also provided as the income minus tax component in the case of salaried persons. 19. Here, monthly income of the deceased has already been found as Rs.4,000/-. The claimants are also entitled to get 40% enhancement of the monthly income towards future prospects. So the monthly income would be Rs.4,000+1,600 (40% of 4,000)=Rs.5,600/-. 20. On the question of deduction towards personal expenses in **Sarla Verma's** case, the Apex Court held that personal and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependants. If the deceased is a bachelor and claimants are parents deduction to MACA.No.1023 of 2009 9 be made is 50% and where number of dependent family members is between 2 and 3, the deduction towards dependant family members is 1/3 and where number of dependant family members is between 4 and 6 the deduction would be ¼ and it would be 1/5 when the number of family members exceeds six and that is followed in **Reshma Kumari & Ors. v. Madan Mohan & Anr.** ## **[(2013) 9 SCC 65).** 21. The claimant was a bachelor. The evidence of PW1 the unmarried sister, would reveal that the deceased was the only breadwinner of the family. The three sisters are unmarried. So, 1/3[rd] deduction adopted by the Tribunal towards personal and living expenses of the deceased can very well be maintained. Towards loss of dependency deducting 1/3[rd] of Rs.5,600/-, the balance would be Rs.3,734/- (Rs.5,600-1,866 (1/3 of 5,600). 22. The multiplier to be applied as per **Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121]** followed in **Reshma Kumari & Ors. v. Madan Mohan & Anr.2013 (9) SCC 65),** approved by the Constitutional Bench in ## **National Insurance Company Ltd. v. Pranay Sethi [2017 (4)** **KLT 662 (SC)]** is '18', since, the deceased was 24 years at the time of accident. So, towards loss of dependency the claimants are MACA.No.1023 of 2009 10 entitled to get Rs.8,06,544/-. Deducting the amount already awarded by the Tribunal the balance would be Rs.8,06,5441,15,200=6,91,344/-. 23. The next contention of the learned counsel is with regard to the enhancement of the conventional heads as per the directions in **Pranay Sethi's** case, wherein Apex court has held that Rs.15,000/- to be awarded under the head loss of estate. Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. 24. The learned counsel would contend that the Apex Court has also held that the above amounts should be revised on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. The learned counsel would contend that the judgment in **Pranay Sethi's** case was on 31.10.2017. So three years have elapsed. So the appellants are entitled for 10% enhancement on the said amounts. So according to him, the amounts to be awarded under the above heads should be Rs.16,500/- each under the head of loss of estate and funeral expenses and Rs.44,000/- each towards loss of consortium. 25. In this context, **Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC** MACA.No.1023 of 2009 11 **1024]** is to be taken note of. That was a case in which the accident occurred on 09.05.2013 and the judgment of the High Court of Orissa at Cuttack in MACA No.965/2016 was dated 07.03.2018. In that decision, under the conventional heads, following the principles in **Pranay Sethi's** case, the claimants were found to be entitled for 10% enhancement of Rs.16,500/- towards the loss of estate and Rs.44,000/- towards spousal consortium. Following that principles, a learned Single Judge of this Court in MACA No.1290/2011 dated 10.12.2021 granted 10% escalation on conventional heads irrespective of the date of accident. In **Pranay Sethi's** case, while fixing 10% escalation in every three years, no reference was made with respect to the date of accident also. So I am of the considered view that claimants are entitled for 10% increase on conventional heads. 26. Next is with regard to the consortium to be awarded. The law laid down by the Apex Court in **Magma General Insurance Co.Ltd. V Nanu Ram Alias Chuhru Ram & Ors. (2018 (18) SCC 130)** is relevant to be taken note of. In that decision, the Apex Court, while dealing with consortium in legal parlance it has been classified into 'spousal consortium', 'parental consortium' and 'filial consortium'. The spousal consortium is described as rights MACA.No.1023 of 2009 12 pertaining to the relationship of husband – wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection and aid of the other in every conjugal relation”. (Black's Law Dictionary (5th ed. 1979). Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. Filial consortium is the right of the parents to compensation in the case of an accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lost their child during their life time. Children are valued for their love, affection, companionship and their role in the family unit. Detailed description regarding filial consortium has also been made therein. It states that filial consortium is the right of parents to compensation in the case of an accidental death of a child. In case where a parent has lost their minor child or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. 27. Though 1st claimant father died pending the proceedings before the Tribunal in **Kirti & Another v. Oriental Insurance Co. Ltd. [2021 (2) SCC 166]** it has been held by the Apex court that MACA.No.1023 of 2009 13 subsequent death of the dependent of the deceased ought not to be a reason for reduction of motor accident compensation and claims and legal liabilities crystallise at the time of accident and the changes post there to ought not to ordinarily affect pending proceedings. 28. Hence, the 1[st] and 2[nd] claimants parents are entitled for filial consortium and three sisters are unmarried. The deceased was the only breadwinner of the family. So, consortium can very well be given to unmarried sisters also. Hence, towards loss of consortium, the claimants are entitled to get Rs.2,20,000/- (Rs.44,000x5). Towards loss of estate and funeral expenses the claimants are also entitled to get Rs.16,500/- each. Deducting the amount already awarded by the Tribunal the balance would be Rs.30,000/(Rs.33,000-3000). Hence, the total enhanced compensation would be Rs.9,41,344/- rounded off to Rs.9,41,350/- (Rs.6,91,344 + 2,20,000 + 30,000). 29. In the result, the appellants 1 to 5 are allowed to realise the enhanced compensation of **Rs.9,41,350/-** which will carry interest at the rate of 7.5% per annum from the date of petition (excluding 642 days the delay caused in filing the appeal) till realisation. The third respondent insurer shall satisfy the additional MACA.No.1023 of 2009 14 compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability of the appellants/claimants towards Balance Court Fee. The disbursement of enhanced compensation to appellants shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the standing counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. The enhanced compensation shall be apportioned among the 2[nd] to 5[th] claimants in the ratio of 40:20:20:20. In the result appeal stands allowed. Parties shall bear their respective costs. Sd/- ## **M.R.ANITHA JUDGE** SMF