MACA 180/2023 (Itteera T V and others vs. KSRTC and Others)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944 ``` ## **`MACA NO. 180 OF 2023`** ## **`AGAINST THE AWARD DATED 28.02.2022 IN OP(MV) NO.49/2019 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA`** ## **`APPELLANTS:`** - `1 ITTEERA T V, AGED 70 YEARS, S/O. VARGHESE, (HUSBAND OF LATE MERIKUTTY), THEKKUMTHALA HOUSE, KALPETTA NORTH DESOM AND P.O, MUTTIL SOUTH, VYTHIRI TALUK, WAYANAD DISTRICT,, PIN – 673122` - `2 NAVEEN I THEKKUMTHALA, AGED 40 YEARS, S/O. ITTEERA (S/O. LATE MERIKUTTY), THEKKUMTHALA HOUSE, KALPETTA NORTH DESOM AND P.O, MUTTIL NORTH,VYTHIRI TALUK, WAYANAD DISTRICT,, PIN – 673122` - `3 NELVIN T I, AGED 38 YEARS, S/O. ITTEERA (S/O LATE MERIKUTTY), THEKKUMTHALA HOUSE, PALLATHUKATTIL, KALPETTA NORTH DESOM AND P.O, MUTTIL SOUTH, VYTHIRI TALUK, WAYANAD DISTRICT, PIN – 673122` ``` BY ADVS. A.R.NIMOD M.A.AUGUSTINE ``` ## **`RESPONDENTS:`** - `1 MANAGING DIRECTOR, KSRTC, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM,, PIN – 695023` - `2 T R BABU, S/O. DAMODHARAN, THAIKODATH HOUSE, ALUVA, ERNAKULAM DISTRICT,, PIN – 683101` - `3 NATIONAL INSURANCE CO.LTD., THIRUVANANTHAPURAM BRANCH, K K BUILDINGS, ARISTO JUNCTION, THAMPANOOR, THIRUVANANTHAPURAM DISTRICT REPRESENTED BY BRANCH MANAGER, PIN – 695014` - `4 LILLY, W/O ABRAHAM, CHIRAYATH HOUSE, R.S. ROAD, CHLAKUDI, THRISSUR, PIN – 680307` - `5 ANTONY K.C., KANNAMPILLY HOUSE, JN 13, AREKAL JUNCTION, ANGAMALY P.O, THURAVOOR, ERNAKULAM, PIN – 683572` MACA 180/23 2 - `6 ROSILY K.C, VAKAYIL, ITC ROAD, KOONAMMAVU P.O, KOONAMAVU, ERNAKULAM, PIN – 683518` - `7 K.C. OUSEPH, KANNAMPILLY, ANNAMANADA P.O, EDAYATTOOR, ALATHUR, THRISSUR, PIN – 680741` - `8 ALPHONSA JOSE, KALLARACKAL, ELAVOOR, ELAVOOR P.O, PARAKKADAVU, ANGAMALY ERNAKULAM, PIN – 683572` - `9 JESSY, W/O C.T JOSEPH, CHETTUKUDAN HOUSE, MALAPALLIPURAM P.O, PALLIPURAM, THRISSUR, PIN – 680732` - `10 URUMIS K.C., KANNAMPILLY, EDAYATTOOR, ANNAMANADA P.O, VTC ALATHUR, THRISSUR – 680741.` ``` BY ADVS. ALEX ANTONY SEBASTIAN P.A. P.K.SANTHAMMA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 180/23 3 ## **`JUDGMENT`** Late Merikutty was hit by the offending vehicle owned by the 1st respondent – Kerala State Road Transport Corporation (KSRTC), driven in a rash and negligent manner, when she was walking along a public road on 04.12.2018. She sustained injuries, but succumbed to them two days later, on 06.12.2018; and the claimants – who are her husband, children and mother – filed OP(MV) No.49/2019 before the Motor Accidents Claims Tribunal, Irinjalakkuda (hereinafter referred to as ‘the Tribunal’ for short), seeking compensation of an amount of Rs.15,00,000/-, but which has been awarded only to a sum of Rs.9,86,000/-. They thus impugn the said Award as being inadequate. 2. Sri.M.A.Augustine – learned counsel for the appellants, argued that the notional income adopted by the Tribunal in favour of the deceased was incorrect; and also that it erred in not granting adequate compensation under the heads ‘Transportation Expenses’; ‘Loss of Consortium’; ‘Loss of Estate’ and ‘Funeral Expenses’. He pointed out that, going by National Insurance MACA 180/23 4 Company Ltd. v. Pranay Sethi [2017 (4) KLT 662], the amounts now granted under the afore heads are much lower than what has been authorised. 3. In response, Smt.P.K.Santhamaa – learned Standing Counsel for the Insurance Company, argued that the computations arrived at by the Tribunal are without error, particularly when it has reckoned the notional income of the deceased as per the binding precedents of the Honourable Supreme Court. She thus prayed that this Appeal be dismissed. 4. Sri.Alex Antony Sebastian – learned Standing Counsel for the KSRTC, submitted that since the offending vehicle was fully covered by an Insurance Policy, he has no comment to make on the controversy now projected by the appellants. 5. I have considered the afore rival contentions on the touchstone of the evidence on record, which I have examined carefully. 6. First, on the question of notional income of the deceased, I cannot find the Tribunal to have erred at all because, in the absence of any evidence being led by the appellants to MACA 180/23 5 prove the income of the deceased – which they claim to be Rs.20,000/-, asserting that she was working as a Tailor – it could have only gone by the standardization postulated by the Honourable Supreme Court in Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]. Going by this judgment, the income that could have been reckoned in favour of the deceased was only Rs.11,000/-, but it has fixed a higher figure of Rs.12,500/-, presumably being guided by the further judgment of the Honourable Supreme Court in Rajani v. Oriental Insurance Company Ltd. [2022 (5) KLT Online 1012]. I cannot find it to be in error and therefore, affirm it. 7. That said, since the deceased was 60 years in age at the time of the accident, no future prospects can be added to her notional income and this has also been correctly concluded by the Tribunal. 8. Coming to the other heads of compensation, Ext.A12Trip Sheet of the Ambulance shows that appellants have spent Rs.20,000/- towards transportation expenses of the deceased. However, this has not been granted by the Tribunal, confining it MACA 180/23 6 to Rs.5,000/- saying that Pranay Sethi (supra) allows only the said figure to be awarded as the transportation expenses in such cases. I fail to understand how this conclusion has been arrived at, since Pranay Sethi (supra) makes no such declaration and it is left to each case to be decided on its merits. As far as this matter is concerned, Ext.A12 – Trip Sheet has not been disputed and when it is so proved, the amount mentioned therein ought to have been granted. 9. Coming to the compensation awarded under the heads ‘Loss of Estate’, ‘Funeral Expenses’ and ‘Loss of Consortium’, I am certain that the incremental increase as postulated by the Honourable Supreme Court in Pranay Sethi (supra) should apply because the accident happened in the year 2018. I, therefore, propose it to be Rs.16,500/- each for ‘Loss of Estate’ and ‘Funeral Expenses’ and Rs.1,76,000/- under the head ‘Loss of Consortium’. 10. All which remains now to be decided is whether the interest awarded by the Tribunal is inadequate. 11. Sri.M.A.Augstine pointed out that the Tribunal has awarded interest only at the rate of 6% and prayed that this be MACA 180/23 7 enhanced to 8%, going by the prevalent bank rates in the year 2018, when the accident occurred. 12. On this issue, it has been well settled that there is no hard and fast rule when it comes to the grant of interest, which is a statutory measure. The accident happened in the year 2018 and it can safely be assumed that at that time, the normal bank rate for Fixed Deposits was slightly higher than 6%. I, therefore, propose to fix it as 6.5%. In the afore circumstances, this Appeal is partly allowed with the following directions: a) The compensation under the head ‘Transportation Expenses’ is enhanced to Rs.20,000/- from Rs.5,000/-, as per Ext.A12 – Trip Sheet. b) The compensation under the head ‘Loss of Consortium’ is enhanced to Rs.1,76,000/- from 1,60,000/-, being guided by Pranay Sethi (supra). c) The compensation under the head ‘Loss of Estate’ is enhanced to Rs.16,500/- from Rs.15,000/-, again as per Pranay Sethi (supra). MACA 180/23 8 d) The compensation under the head ‘Funeral Expenses’ is enhanced to Rs.16,500/-, from Rs.15,000/-, as per Pranay Sethi (supra). e) In all other heads, the findings of the Tribunal will remain unaltered. Consequently, the appellants will be at liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 6.5%, from the date of claim until it is recovered. They will also be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal. In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. After I dictated this part of the judgment, Sri.M.A.Augustine intervened to say that this Court is not inhibited from granting compensation under the head ‘Pain and Suffering’, particularly when Merikutty died two days after the accident. MACA 180/23 9 I am afraid that I cannot find favour with the afore submission of the learned counsel for the appellants because, in United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and Others [(2021) 11 SCC 780], the Honourable Supreme Court has made it very clear that the compensation under this head will be factored in the compensation offered for ‘Loss of Dependency’. This, having been done by the Tribunal correctly, I do not think any intervention is necessary. The said argument is, therefore, repelled. ``` RR ``` ``` Sd/- DEVAN RAMACHANDRAN JUDGE ```