Kuyilath Sobhandevi @ Sobha Sivadas v. Koranath Saseendran and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 27TH DAY OF JULY 2012/5TH SRAVANA 1934** ## **MACA.No. 1293 of 2005 ( )** **------------------------OPMV.1060/1999 DATED 31/12/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI ..........** ## **APPELLANTS/PETITIONERS:** **--------------------------------------------** ## **1. KUYILATH SOBHANADEVI @ SOBHA SIVADAS,** - **W/O. LATE T.SIVADASAN, KUYILATH HOUSE, VALMUTTY ROAD, CHITTOOR, PALAGHAT DISTRICT.** **2. SRI.SANDEEP.,S/O.LATE T.SIVADSAN, KUYILATH HOUSE, VALMUTTY ROAD, CHITTOOR, PALGHAT DISTRICT.** ## **3. SRI.SANEJEEV S.,** **AGED 10 YEARS,S/O.LATE T.SIVADASAN, KUYILATH HOUSE, MINOR, REPRESENTED BY MOTHER AND GUARDIAN 1ST APPELLANT, VALMUTTY ROAD, CHITTOOR, PALAGHAT DISTRICT.** **BY ADV. SRI.A.K.MADHAVAN UNNI** ## **RESPONDENTS/RESPONDENTS IN OP (MV):** **---------------------------------------------------------------------** ## **1. KORANATH SASEENDRAN,** - **S/O.UNNEERI,EDAPATTA P.O., PATHIRIKODE, VIA. MELATTOOR, MALAPPURAM DISTRICT-DRIVER OF CAR KL-10/A 1060.** **2. K.HAMZA,S/O.MOHAMMED,KRIKKAL HOUSE, THELAKKAD,PATTIKKAD P.O., MALAPPURAM DISTRICT-OWNER OF LORRY MSM, 1960.** **...2/-** **Kss** **..2....** **MACA NO.1293/2005** **3. NEW INDIA INSURANCE CO. LTD., BRANCH OFFICE, CATHOLIC CENTRE,U.P.HILL, MALAPPURAM P.O.** ## **4. SHANMUGHAN,** **S/O. PONNUSWAMI, THIPPRATHIPALLI, DHARMAPURAM P.O., MANGALAPURAM.** **5. P.RAMASWAMY, S/O. PALANI GOUNDER, SELAM PAPER BOARD, SELAM PAPER BOARD LIMITED, ATHIKARIPPADY (P.O.), UDAYAMPETTY,SELAM DISTRICT,SELAM TALUK(OWNER OF LORRY)** **6. NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, 1631-B-1 FLOOR, SELAM BHAVANI MAIN ROAD, SANKARI DURG-637 301.** **R2 BY ADV. SRI.K.M.SATHYANATHA MENON R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) R6 BY ADV. SRI.P.JAYASANKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **PIUS C. KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.** -------------------------------------------------------------MACA. No. 1293 of 2005 ----------------------------------------------Dated this the 27[th] day of July, 2012 ## **J U D G M E N T** ## **Ramakrishna Pillai, J.** The appellants are the widow and minor children of one 42 year old Bank Manager by name Shivadasan who met with his death on account of the injuries sustained by him in a road traffic accident occurred on 7-5-1997. Allegedly, the deceased, while learning driving in a driving school, the car driven by the 1[st] respondent collided with a lorry coming from the opposite direction. The 4[th] respondent was the driver of the lorry. The learned Tribunal attributing negligence against the 1[st] respondent and 4[th] respondent awarded a sum of Rs.7,39,569/- against the claim of Rs.26,23,040/and apportioned the liability among R1, the driver of the car, R3, the insurer of the car and R6, the insurer of the lorry in the ratio 25:25:30. In this appeal, the appellants are challenging the finding regarding the negligence as well as the adequacy of compensation awarded. 2. We have heard the learned counsel for the appellants, the MACA. 1293/05 -2- learned counsel appearing for 2[nd] respondent, the learned counsel for 3[rd] respondent and the learned counsel for 6[th] respondent. We have also perused the impugned award. 3. The learned Tribunal fixed negligence on the 1[st] respondent, who is the driver of the car as well as on the 4[th] respondent, who is the driver of the lorry involved in the accident. The vehicles were coming in the opposite direction. The learned counsel for the appellants as well as the learned counsel for the second respondent invited our attention to Ext.B1, which is the judgment of the same Tribunal in OP(MV).No.785/1999, which was preferred by the first respondent, who was the driver of the car, for compensation for injuries sustained by him in the very same accident. The learned Tribunal, accepting the case, fixed negligence on the driver of the lorry and awarded compensation to the first respondent. It was submitted by the second respondent that though the first respondent was charge sheeted, he got an acquittal. We notice that the 4[th] MACA. 1293/05 -3- respondent was impleaded as 3[rd] respondent in Ext.B1 and they suffered the award. Thus, the judgment of the same Tribunal in OP(MV).No.785/1999 has attained finality. Though the judgment was adverted to by the learned Tribunal, the learned Tribunal fixed the liability on the 1[st] respondent and 4[th] respondent for unjustifiable reasons. As the finding regarding the negligence has attained finality in the light of Ext.B1, we interfere with the finding of the learned Tribunal that the accident was due to the negligence of 1[st] and 4[th] respondents. We hold that the accident occurred due to negligence of the 4[th] respondent, who was the driver of the lorry involved in the accident. 4. Coming to the amount of compensation awarded, the learned counsel for the appellants would submit that adequate compensation has not been awarded by the learned Tribunal. The deceased Shivadasan was the Manager of the Federal Bank drawing a monthly salary of Rs.14,678/- as per Ext.A4 salary certificate. Though the MACA. 1293/05 -4- same was accepted by the learned Tribunal, the learned Tribunal was not inclined to adopt the multiplicand on the basis of Ext.A4 for the flimsy reason that the widow of the deceased was given an employment in Federal Bank on compassionate ground. It is settled law that compassionate employment received by a legal heir shall not be a bar for awarding compensation for loss of dependency. The learned counsel for the appellant relying on the decision of the Apex Court in _**Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC))**_ would contend that the learned Tribunal ought to have added 30% of the salary in consideration of the future prospects of the deceased. The learned counsel for the 6[th] respondent would contend that the fact that the widow of the deceased was given compassionate employment in the same bank should be taken as a relevant factor for not enhancing the monthly income on account of future prospects for arriving at the compensation for dependency. We see considerable force in MACA. 1293/05 -5- the submission made by the learned counsel for the 6[th] respondent. We adopt the monthly income made mention of in Ext.A4 for arriving at the compensation for loss of dependency. As the deceased was aged 42 years at the time of his death the correct multiplier applicable to his age group is 14 as per the decision of the Apex Court in Sarla Verma's case (cited supra). As there are only 3 dependents one-third of the amount has to be deducted in consideration of the expenses which the deceased would have incurred had he been alive. When the dependency compensation is recalculated as above, it will come to Rs.16,43,936/-. 5. As we find infirmity in the amount awarded by the learned Tribunal on almost all heads we are revising the entire award. 6. We notice that the deceased met with his death only after hospitalisation of 129 days. Hence, we are awarding to the appellants a sum of Rs.25,000/- as compensation for pain and suffering. MACA. 1293/05 -6- 7. Towards loss of estate, we are awarding a sum of Rs.5,000/- to the appellants. 8. Towards funeral expenses also, we are awarding a sum of Rs.5,000/-. 9. The first appellant, who is the widow, was aged 37 years at the time of the accident. Certainly she is entitled to get a reasonable sum as compensation for loss of consortium. As she lost her husband at her middle age, we are awarding a sum of Rs.25,000/- as compensation for loss of consortium. 10. The second and third appellants were only aged 14 years and 4 years respectively at the relevant time. As they have lost their father at their tender age, they are entitled to get a reasonable sum as compensation for love and affection. Thus, we award to them a sum of Rs.30,000/- on that count. 11. Thus in total, the appellants are entitled to get a sum of Rs.17,33,936/- as compensation which is in MACA. 1293/05 -7- substitution of Rs.7,39,569/- awarded by the learned Tribunal. The award amount shall carry interest at 7% from the date of petition till realisation. The 6[th] respondent shall pay the compensation, as they have admitted the policy of the lorry which was involved in the accident. Appeal is allowed and the impugned award shall stand modified as above. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(A.V.RAMAKRISHNA PILLAI, JUDGE)** ksv/-