MACA NO. 2324 OF 2015 — Rabiyathu Beevi & Others v. The Managing Director, KSRTC

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 ``` ## **`MACA NO. 2324 OF 2015`** ## **`AGAINST THE AWARD DATED 11.06.2013 IN OP(MV) NO.239/2007 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL`** ## **`APPELLANTS:`** - `1 RABIYATHU BEEVI, SUMI MANZIL, CHULLIMANOOR P.O., NEDUMANGADU, PIN: 695 541.` - `2 MAHEEN, SUMI MANZIL, CHULLIMANOOR P.O., NEDUMANGADU, PIN: 695 541.` - `3 SHAJAHAN, SUMI MANZIL, CHULLIMANOOR P.O., NEDUMANGADU, PIN: 695 541.` - `4 SANOFAR, SUMI MANZIL, CHULLIMANOOR P.O., NEDUMANGADU, PIN: 695 541.` - `5 SUMI, SUMI MANZIL, CHULLIMANOOR P.O., NEDUMANGADU, PIN: 695 541.` ``` BY ADVS. SRI.V.R.GOPU SRI.J.NARAYANA PILLAI ``` ## **`RESPONDENTS:`** ``` 1THE MANAGING DIRECTOR KSRTC, THIRUVANANTHAPURAM 695 036. ``` - `2 AJAYAKUMAR, S/O.RAJASEKHARAN NAIR, ROHINI BHAVAN, MANOORKONAM, KARIPUR 695 541.` - `3 KABEER, SUMI MANZIL, CHULLIMANOOR P.O., NEDUMANGADU, PIN: 695 541. (DELETED)` ``` (RESPONDENT NO.3 IS DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANTS AS PER ORDER DATED 10.06.2019 IN IA NO.1/19) ``` ``` BY ADVS. ALEX ANTONY SEBASTIAN P.A. SRI.ASWIN.P.JOHN ``` MACA 2324/15 2 ``` SRI.M.GOPIKRISHNAN NAMBIAR - SC, KSRTC SRI.THOMAS ABRAHAM ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2324/15 3 ## **`JUDGMENT`** The appellants are the mother and siblings of Sajad, who unfortunately died in a road accident on 08.11.2006 - when the offending bus, owned by the Kerala State Road Transport Corporation (KSRTC) hit him from the opposite side, driven in a rash and negligent manner. They filed OP(MV)No.239/2007 before the Motor Accidents Claims Tribunal, Attingal (‘Tribunal’ for short), seeking compensation of an amount of Rs.6,20,000/-, which has been allowed to a sum of Rs.6,80,500/-. In the meanwhile, the father of Late Sajad died and the other appellants came on record as his legal heirs; and all of them, along with their mother, now impugn this Award, as being inadequate. 2. Sri.V.R.Gopu – learned counsel for the appellants, argued that the primary reason for the compensation awarded in favour of his client to be low is because, it has reckoned the notional income of the deceased to be a mere Rs.4,000/-, when Exts.A6 to A9 establish that he was drawing a minimum of Rs.5,250/- as salary at the time of accident. He argued that the MACA 2324/15 4 learned Tribunal is in error in not having accepted this figure and then in not awarding future prospects at the rate of 40%, since the deceased was only 26 years of age at the time of accident. He further asserted that the learned Tribunal has committed mistake in granting compensation for ‘Loss of Love and Affection’ only to a sum of Rs.30,000/-, when the parents of Late Sajad were entitled to ‘Loss of Consortium’ at the rate of Rs.40,000/- per head. He then pointed out that the learned Tribunal has granted compensation for ‘Loss of Estate’ only to a sum of Rs.1,000/-, when National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] specially sanctions an amount of Rs.15,000/- under that head. 3. After contending as afore, Sri.V.R.Gopu submitted that the learned Tribunal has also made an error in finding that the deceased was contributorily negligent to an extent of 50% for the accident and asserted that this is without any basis and contrary to the evidence on record, particularly the Police Charge Sheet and the Scene Mahazar. He thus prayed that this Appeal be allowed. 4. Sri.Alex Antony Sebastian – learned Standing Counsel MACA 2324/15 5 for the KSRTC, on the other hand, submitted that, as has been correctly found by the Tribunal, the deceased was riding his motor cycle in a rash and negligent manner and tried to overtake the bus, without having any clearance for the same. He added that this is evident from Ext.A52-Vehicle Mahazar, which records the damage caused to the bus being on the right rear side, which is indicative of the fact that the accident occurred because of the reckless driving of the deceased. As regards the compensation awarded by the Tribunal under various other heads, he argued that they are just and fair and therefore, does not require any modification. 5. I have considered the afore rival contentions on the touchstone of the evidence on record, which I have analyzed very carefully. 6. I will first deal with the correctness of the notional income adopted by the Tribunal in favour of the deceased. 7. Exts.A6 to A9 are the Salary Certificates of the deceased produced by the claimants, as per which, the last salary drawn by him is Rs.5,250/-. Going by Ramchandrappa v. Manager, Royal MACA 2324/15 6 Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the Honourable Supreme Court has postulated that, even in the case of a person with an unascertainable income in the year 2006 – when the accident occurred – the minimum reckonable income is Rs.5,500/-. Since the claim has been made for an amount lesser than this, there was no reason for the Tribunal not to have accepted it. That said, since the deceased was only 26 years of age at the time of accident, his notional income certainly had to be added with 40% future prospects, as required by Pranay Sethi (supra). 8. Coming to other heads, I find substantial force in the submission of Sri.V.R.Gopu, that compensation for ‘Loss of Estate’ ought to have been Rs.15,000/-, because Pranay Sethi (supra) authorises it; though the amount under the head ‘Funeral Expenses’ may have to be brought down to the said sum, because this is the maximum which the said precedent permits. 9. The Tribunal has awarded an amount of Rs.30,000/under the head ‘Loss of Love, Affection and Guidance’. In fact, it ought to have granted compensation under the head ‘Loss of MACA 2324/15 7 Consortium’ eligible to his parents, who are the original claimants. Obviously, an amount of Rs.80,000/- should have been granted, at the rate of Rs.40,000/- per head, as per Pranay Sethi (supra). 10. That being said, the surviving question is whether the finding of contributory negligence by the Tribunal against the deceased was proper. I must say that this Court certainly cannot find it to be so because, admittedly, Ext.A50-FIR and Ext.A54-Final Charge Sheet find the driver of the offending bus to be fully negligent and responsible for the accident, without any contribution from the deceased. Therefore, the argument of Sri.Alex Antony Sebastian, that Ext.A52-Scene Mahazar would prove otherwise, is totally untenable since, merely because the said vehicle is seen to have scratches on its right rear side, it could not have lead to an automatic inference in the manner the Tribunal has arrived at, that the deceased was trying to overtake it without clearance. 11. This is totally without reason because, even in the case where the KSRTC bus collided into the motor cycle from the opposite side, it is possible that it would have suffered damage only on its rear right side. When the Police Charge Sheet concludes MACA 2324/15 8 that the bus was travelling in the opposite side and that it hit the motor cycle in a rash and negligent manner, the learned Tribunal could not have substituted it with its wisdom, saying that it was the motor cycle which tried to overtake the bus and then hit it on the right rear side. This is more so because, as has been interestingly found by the Tribunal itself, the Scene Mahazar records that the accident happened at a point of 88 cm from the eastern tarred portion of the road, having a side-walk space of 1.5 metres and 1 metre on either side. The finding of contributory negligence against the deceased, therefore, would be not solely impermissible, but impossible. I, therefore, have no doubt that the findings of the Tribunal to that extent are liable to be vacated. Resultantly, this Appeal is partly allowed with the following directions: a) The impugned Award, to the extent to which it concludes the deceased responsible for the accident, is vacated and the deduction of 50% from the compensation awarded is also set aside. b) The compensation under the head ‘Loss of Dependency’ MACA 2324/15 9 is enhanced to Rs.7,49,700/-, from Rs.6,12,000/- now granted by the learned Tribunal, reckoning the notional income of the deceased to be Rs.5,250/- as claimed, with 40% future prospects added to it and 1/2 of it reduced as personal expenses, as per Sarala Verma and Others v. Delhi Transport Corporation & Another [2010 (2) KLT 802]. c) The compensation under the head ‘Loss of Estate’ is enhanced to Rs.15,000/-, from Rs.1,000/- now awarded by the Tribunal, in terms of Pranay Sethi (supra). d) The compensation under the head ‘Funeral Expenses’ is reduced to Rs.15,000/-, from Rs.25,000/- as per Pranay Sethi (supra). e) The compensation under the head ‘Loss of Consortium’ is enhanced to Rs.80,000/-, for the parents of the deceased as per Pranay Sethi (supra). f) The compensation of Rs.30,000/- awarded under the head ‘Loss of Love, Affection and Guidance’ is deleted. g) In all other heads, the findings of the Tribunal will remain unaltered. MACA 2324/15 10 Consequently, the appellants will be at liberty to recover the full compensation, as enhanced by this Court, from the KSRTC, along with interest at the rate of 8%, (reducing it from 9% granted by the Tribunal, in view of the escalation granted by this Court), 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 KSRTC before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ``` Sd/- ``` ``` ACR/RR ``` ``` DEVAN RAMACHANDRAN JUDGE ```