Kunjikali and others v. The Managing Director, Kerala State Road Transport Corporation and Pathrose K.V.

1 MACA No.1461 of 2010 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 24[TH] DAY OF JANUARY 2022 / 4TH MAGHA, 1943** **MACA NO. 1461 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 800/2006 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** - **1 KUNJIKALI M/O.LATE BALAN,CHITTIYEL HOUSE, MELOOR DESOM & VILLAGE,, MELOOR P.O., MUKUNDAPURAM TALUK,, THRISSUR DISTRICT.** - **2 AMMINI, SISTER OF LATE BALAN,CHITTIYEL HOUSE, MELOOR DESOM & VILLAGE,, MELOOR P.O., MUKUNDAPURAM TALUK,, THRISSUR DISTRICT.** - **3 UNNI, BROTHER OF LATE BALAN,CHITTIYEL HOUSE, MELOOR DESOM & VILLAGE,, MELOOR P.O., MUKUNDAPURAM TALUK,, THRISSUR DISTRICT.** - **4 SANTHA, SISTER OF LATE BALAN,CHITTIYEL HOUSE, MELOOR DESOM & VILLAGE,, MELOOR P.O., MUKUNDAPURAM TALUK,, THRISSUR DISTRICT.** - **5 VIJAYAN, BROTHER OF LATE BALAN,CHITTIYEL HOUSE, MELOOR DESOM & VILLAGE,, MELOOR P.O., MUKUNDAPURAM TALUK,, THRISSUR DISTRICT.** - **6 GOPI, BROTHER OF LATE BALAN,CHITTIYEL HOUSE, MELOOR DESOM & VILLAGE,, MELOOR P.O., MUKUNDAPURAM TALUK,, THRISSUR DISTRICT.** - **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENT/S:** - **1 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, FORT,, TRIVANDRUM- 695 001.** - **2 PATHROSE K.V., S/O.VARKEY,PANAKULAM P.O., KOMBANAD VILLAGE,, ERNAKULAM DISTRICT, PIN 683511. BY ADVS. SMT.BIMALA BABY, SC, KSRTC SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC ALEX ANTONY SEBASTIAN P.A.SC, KSRTC** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **24.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1461 of 2010 ## **C.S.DIAS, J.** ## **====================== MACA No.1461 of 2010** ## **====================== Dated this the 24[th ] day of January, 2022.** ## **JUDGMENT** The appellants were the petitioners in OP(MV) 800/2006 on the file of the Motor Accident Claims Tribunal, Irinjalakkuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Balan (deceased) - the son of the first appellant and the brother of the appellants 2 to 6. It was their case that, on 8.1.2006, while the deceased was walking through the ThrissurErnakulam National Highway, a bus bearing registration No.KL-15/2496 (bus), driven by the second respondent in a negligent manner, hit the deceased. The deceased sustained fatal injuries and lost his life on the same day at 3 MACA No.1461 of 2010 the Elite Mission Hospital, Thrissur. The bus was owned by the first respondent. The deceased was a Hotel employee and earning a monthly income of Rs.3,000/-. The appellants were the dependents of the deceased. Hence, the appellants claimed a compensation of Rs.3,22,800/- from the respondents 3. The second respondent did not contest the proceeding and were set ex parte. 4. The first respondent had filed a written statement refuting the allegations in the claim petition. The first respondent contended that the accident occurred due to the negligence of the deceased. 5. The appellants produced and marked Exts A1 to A4 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellants to recover from the first 4 MACA No.1461 of 2010 respondent an amount of Rs.80,000/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard: Sri.P.V Baby, the learned Counsel appearing for the appellants/ petitioners and Sri.Alex Antony, the learned counsel appearing for the first respondent - owner. 9. The sole point that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext A2 charge-sheet filed by the Koratty Police in crime No.20/2006 proves that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner of the bus. The respondents have not let in any evidence to discredit Ext A2 charge-sheet. Therefore, the first 5 MACA No.1461 of 2010 respondent is vicariously liable to pay the compensation amount arising out of the accident. ## **Income** 11. The appellants had claimed that the deceased was a Hotel employee and earning a monthly income of Rs.3,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the deceased at Rs.2,000/-. 12. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2006, I refix the notional monthly income of the deceased at Rs.3,000/- as claimed in the claim petition. 6 MACA No.1461 of 2010 ## **Multiplier** 14. The deceased was aged 49 years at the time of the accident/death. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009)** **6 SCC 121]** , the relevant multiplier to be adopted is '13'. ## **Personal living expenses of the deceased** 15. It is undisputed that the deceased was a bachelor. In the light of the law laid down in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** one - half of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 16. Following the ratio in **Sarla Verma** (supra) and **Pranay Sethi** (supra), and considering the fact that the deceased was aged 49 years at the time of the accident, I hold that the appellants are entitled to future prospects @ 25%. 7 MACA No.1461 of 2010 ## **Loss of dependency** 17. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.3,000/-, the multiplier at '13', future prospects @ 25% and after deducting one-half of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency at **Rs.2,92,500/** -, instead of Rs.60,000/- awarded by the Tribunal. ## **Conventional heads of claim** 18. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of **Pranay Sethi (supra)** has held that the dependents of the deceased are entitled for compensation under the conventional heads viz., funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- respectively. It is also observed that the conventional heads of compensation have to be enhanced every three years by 10%. 19. In **N.Jayasree vs. Cholamandalam M.S,** 8 MACA No.1461 of 2010 **General Insurance Co Ltd. [2021 SCC Online SC 967]** and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another [2021 SCC Online SC 1193]** , the Hon'ble Supreme Court has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accident. Thus, it is to be interpreted and inferred that the escalation of 10% is to be awarded after three years from the pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered in the year 2017, and not for accidents that occurred three years after 2017. 20. In the instant case, the Tribunal has awarded an amount of Rs.3,000/towards funeral expenses. Therefore, I hold that the appellants are entitled to a further amount of Rs.13,500/- towards funeral expenses. I also award the appellants a further amount of Rs.16,500/towards loss of estate. As the first appellant is the mother 9 MACA No.1461 of 2010 of the deceased, I award an amount of **Rs.44,000/-** towards filial consortium. Since the appellants 2 to 6 were majors and leading an independent life, I decline to award any amount under the head 'loss of consortium'. ## **Pain and sufferings** 21. The Tribunal has awarded an amount of Rs.5,000/- under the head 'pain and sufferings'. 22. In paragraph 19 of **Sarla Varma** (supra), the Honourable Supreme Court has held that no amount shall be awarded to the dependents of the deceased under the head 'pain and sufferings' in the case of instantaneous death. Therefore, I set aside the amount of Rs.5,000/awarded under the said head. ## **Loss of love and affection** 23. The Tribunal has awarded an amount of Rs.10,000/- under the head 'loss of love and affection'. In **New India Assurance Co. v. Somwati and others** **[(2020) 9 SCC 644]** the Hon'ble Supreme Court has held 10 MACA No.1461 of 2010 that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount awarded under the head 'loss of love and affection'. ## **Other heads of compensation** 24. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 25. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellants/petitioner are entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. 11 MACA No.1461 of 2010 |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Transport to hospital|2,000/-|2,000/-| |2|Funeral expenses|3,000/-|16,500/-| |3|Loss of consortium|Nil|44,000/-| |4|Loss of estate|Nil|16,500/-| |5|Loss of love and affection|10,000/-|Nil| |6|Loss of dependency|60,000/-|2,92,500/-| |7|Pain and suffering|5,000/-|Nil| ||Total|80,000/-|3,71,500/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.2,91,500/-** (Rupees Two Lakh Ninety One Thousand Five Hundred only) with interest on the enhanced compensation at the rate of 7% per annum from the date of claim petition till the date of deposit and proportionate costs. The first respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount 12 MACA No.1461 of 2010 being deposited, the same shall be disbursed to the first appellant, in accordance with law. SD/- sks/24.1.22 **C.S.DIAS, JUDGE**