KANCHANAVALLY (on behalf of minor Sreekutty) and others v. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION & RAJAN

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` FRIDAY, THE 23[RD] DAY OF SEPTEMBER 2022 / 1ST ASWINA, 1944 ``` ## **`MACA NO. 91 OF 2010`** ``` AGAINST THE AWARD DATED 30.04.2009 IN O.P.(M.V) NO.1134/2000 OF ADDITIONAL MOTOR ACCIDENTS CLIAMS TRIBUNAL, MAVELIKKARA ``` ## **`APPELLANTS/APPLICANTS:`** ``` 1KANCHANAVALLY, W/O.RETNAN, VILAYASSERIL, KANDALLOOR NORTH MURI, KANDALLOOR VILLAGE, PATTOLIMARKET P.O., VIA.KAYAMKULAM. 2RETNAN S/O.RAGHAVAN DO. DO. 3ARAVIND, S/O.RETNAN (MINOR) REPRESENTED BY HIS MOTHER KANCHANAVALLY DO. DO. DO., (BROTHER OF THE DECEASED SREKUTTY). BY ADVS.SRI.ANANDA RAJAN.N SRI.K.K.MANGALANANDAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORTATION, CHIEF OFFICE, TRANSPORT BHAVAN, EAST FORT P.O, THIRUVANANTHAPURAM- 23. 2RAJAN, S/O.PURUSHOTHAMAN KALLUMPURATH VEEDU, KALLELI BHAGOM MURI, KALLELI BHAGOM VILLAGE, P.O.KALLELI BHAGOM, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. ``` ``` BY ADVS. R1 BY SRI.JOY GEORGE, SC, K.S.R.T.C. SRI.ALEX ANTONY SEBASTIAN P.A, SC, K.S.R.T.C R2 BY SRI.V.PHILIP MATHEW ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD`** ``` ON 23.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.91 of 2010 ``` ``` 2 ``` ## **`JUDGMENT`** ``` Dated this the 23[rd] day of September, 2022 ``` Challenging an award passed by Additional Motor Accidents Claims Tribunal, Mavelikkara (for short ‘the Tribunal’) on 30.04.2009 in O.P(M.V) No.1134/2000, the appeal on hand is filed. 2. The appellants are legal heirs of a minor girl child named Sreekutty aged 2 years who succumbed to the injuries sustained in a motor accident, while being transported to the hospital. The accident was occurred at about 9.10 am on 23.03.2000. The minor girl was standing in front of her house approximately 300 mts west of Onampally junction on the southern road margin of Keerikkad Jetty-Paravoor Junction public road and was knocked down by a KSRTC bus bearing Registration No.KL 15 657 (TR 625) driven by it’s driver in a rash and negligent manner. The minor girl succumbed to the ``` 3 ``` ``` M.A.C.A.No.91 of 2010 ``` fatal injuries sustained, while rushing to the hospital. 1[st] respondent is the owner of the KSRTC bus and the 2[nd] respondent, it’s driver. Alleging that respondents 1 and 2 are jointly and severally liable to compensate the petitioners, Original Petition was preferred before the Tribunal, seeking for a sum of Rs.2,46,000/- as compensation. 3. Respondents 1 and 2 filed a joint written statement wherein it was contended that the accident was caused due to the negligence of the minor girl and the failure of her parents to take care of her. The 2[nd] respondent who was driving the K.S.R.T.C bus through a narrow road which was dug for laying cable cannot be made responsible for the accident and liable to compensate the petitioners. The compensation claimed is also disputed, being exorbitant. 4. Before the Tribunal, the 1[st] petitioner led oral evidence as PW1 and marked Exts.A1 to A10. Neither any oral nor documentary evidence was adduced by the respondents. The Tribunal appreciated the available evidence and found the ``` M.A.C.A.No.91 of 2010 ``` ``` 4 ``` driver of the KSRTC bus, the 2[nd] respondent rash and negligent in driving and responsible for the accident. The Tribunal also found the petitioners entitled to get compensation from the respondents for the death of the minor child. The Tribunal quantified the compensation payable as Rs.1,05,000/- and directed the respondents to pay it with interest at the rate of 7.5% per annum from the date of the Original Petition till the date of realisation. The Tribunal has also apportioned the amount among the petitioners. 5. Mr.N.Ananda Rajan the learned counsel for the appellants canvassed for enhancement of the compensation. According to him, the Tribunal had taken only Rs.15,000/- as the multiplicand for the purpose of computation of compensation for dependency. The learned counsel has relied on Kurvan Ansari alias Kurvan Ali & Anr. vs. Shyam Kishore Murmu & Anr. [2021 KHC 6703] to contend that the Tribunal ought to have taken Rs.25,000/- as the annual notional income. According to him in Kurvan Ansari supra, while ``` M.A.C.A.No.91 of 2010 ``` ``` 5 ``` assessing compensation for the death of a minor boy aged 7 years, Rs.25,000/- was taken as the annual notional income and the facts of the case being identical, the Tribunal would be justified in adopting the same amount as annual notional income. According to the learned counsel, the Tribunal ought to have granted Rs.15,000/-, each as compensation under the heads funeral expenses and loss of estate and Rs.40,000/- to each of the surviving members of the deceased as compensation towards loss of consortium as directed by the Apex Court in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]. 6. According to the learned counsel the deceased was the only girl child and absolutely no scope for child bearing again on account of the sterilization procedure undergone by the mother. 7. The learned counsel for the 2[nd] respondent on the contrary contended that negligence was found by the Tribunal against the 2[nd] respondent wrongly and interference is required ``` M.A.C.A.No.91 of 2010 ``` ``` 6 ``` to exonerate him. The learned counsel for the 1[st] respondent has also urged that the sums awarded by the Tribunal under various heads being just and reasonable, interference is absolutely unwarranted. 8. The contention raised by the learned counsel for the 2[nd] respondent on the finding on negligence cannot be considered for the reason that challenge was not raised against it by the respondent by filing an appeal or cross objection. 9. It appears from the impugned award that the Tribunal has arrived at a total sum of Rs.1,55,000/- against a claim of Rs.2,46,000/- by awarding Rs.2,000/- towards transportation expenses, Rs.3,000/-, towards funeral expenses, Rs.5,000/- towards pain and suffering, Rs.1,30,000/- towards loss of dependency and Rs.15,000/- towards loss of love and affection. In Kurvan Ansari supra relied on by the learned counsel for the appellants, the Apex Court had taken Rs.25,000/- as the notional income for the purpose of computation of compensation for the death of a child aged 7 ``` M.A.C.A.No.91 of 2010 ``` ``` 7 ``` years. Multiplier taken by the Tribunal being 13, is incorrect and this Court is inclined to substitute it by 15. The child in the case on hand being aged 2 years, Rs.25,000/- is adopted as the annual notional income for assessment of compensation for dependency. 1/3[rd] of Rs.25,000/- is deducted towards personal expenditure of the deceased had she been alive. Therefore, Rs.2,50,005/- (25000-1/3[rd] of 25000 x 15) is arrived at as compensation for loss of dependency. Rs.1,30,000/- being the sum already awarded by the Tribunal under the head, Rs.1,20,005/- is payable additionally. The deceased minor girl was the companion of the third petitioner and with her death and the sterilization procedure undergone by the mother, the possibility of the sibling of the deceased to get a companion in future is lost. In the above scenario, this Court finds it appropriate to maintain Rs.15,000/- stands awarded by the Tribunal towards loss of love and affection. The child was alive after the accident for sometime and died while being transported to the hospital. Therefore Rs.10,000/- is taken as ``` M.A.C.A.No.91 of 2010 ``` ``` 8 ``` the compensation payable for pain and suffering, instead of Rs.5,000/- taken by the Tribunal. Tribunal failed to award any sum as compensation under the head loss of estate and awarded only Rs.3,000/- as compensation towards funeral expenses. The Tribunal failed to award any sum as compensation towards loss of consortium. 10. Rs.3,000/- having been awarded under the head funeral expenses, Rs.12,000/- would be payable additionally. Since no amount was awarded under the head loss of estate, a sum of Rs.15,000/- would be payable in addition. Rs.40,000/each is payable to petitioners 1 and 2, being parents of the deceased minor towards filial consortium. 11. In the reassessment as above, Rs.2,32,005/(Rupees Two lakhs Thirty Two thousand and Five only) (12,000 + 5,000 + 1,20,005 + 15,000 + (40,000x2)) is payable as additional compensation. The 1[st] and 2[nd] respondents shall deposit the amount now arrived at as additional compensation with interest at the rate of 7.5% per ``` 9 ``` ``` M.A.C.A.No.91 of 2010 ``` annum from the date of the Original Petition till the date of realisation. If the amount already awarded by the Tribunal is not paid, said amount as well as the additional sum payable as compensation shall be paid within a period of two months from the date on which, a copy of the judgment is received there. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB