MACA No. 3683 of 2016: Bindu @ Mary and others v. Kerala State Road Transport Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944 MACA NO. 3683 OF 2016** **AGAINST THE ORDER/JUDGMENT OPMV 291/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY** ## **APPELLANTS/PETITIONERS:** 1 BINDU @ MARY AGED:34 YEARS, W/O IVAN JOSEPH, VARIKKAMAKKAL HOUSE, NEDUMUNDA, KURUMATHOOR AMSOM, P.O KURUMATHOOR, TALIPARAMBA TALUK, KANNUR DISTRICT. 2 DIYA SOOSAN IVAN D/O LATE IVAN JOSEPH, MINOR, AGED10 YEARS, THROUGH GUARDIAN-NEXT FRIEND MOTHER:BINDU, VARIKKAMAKKAL HOUSE, NEDUMUNDA, KURUMATHOOR AMSOM, P.O KURUMATHOOR, TALIPARAMBA TALUK, KANNUR DISTRICT. 3 JOSEPH S/O JOSEPH, AGED 65 YEARS, VARIKKAMAKKAL HOUSE, NEDUMUNDA, KURUMATHOOR AMSOM, P.O KURUMATHOOR, TALIPARAMBA TALUK, KANNUR DISTRICT,PIN 4 SOOSAN JOSEPH W/O JOSEPH, AGED 57 YEARS, VARIKKAMAKKAL HOUSE, NEDUMUNDA, KURUMATHOOR AMSOM, P.O KURUMATHOOR, TALIPARAMBA TALUK, KANNUR DISTRICT,PIN BY ADV SMT.M.R.JAYALATHA ## **RESPONDENTS/RESPONDENTS:** 1 MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, TRIVANDRUM – 695001 OWNER OF KSRTC BUS KL 15-4081 2 PADMANABHAN S/O KELAPPAN, KUPPADATH HOUSE, PARIYARAM AMSOM, PO, PARIYARAM - 670502 DRIVER OF KSRTC BUS KL-15-4081 M.A.C.A.No.3683 of 2016 : 2 : BY ADVS. SRI.ALEX ANTONY SEBASTIAN P.A. - SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.3683 of 2016 : 3 : ## **DEVAN RAMACHANDRAN, J.** **========================= M.A.C.A.No. 3683 of 2016 ========================== Dated this the 13[th] day of February, 2023** ## **JUDGMENT** This appeal, by the legal heirs of Ivan Joseph, who unfortunately died in a motor accident on 12.10.2005, is impelled against the Award of the Motor Accidents Claims Tribunal, Thalassery (the 'Tribunal' for short), in OP(MV) No.291/2007, wherein, they had sought compensation to the extent of Rs.25,00,000/-, but which has been awarded only for an amount of Rs.11,21,000/-. 2. Smt.M.R.Jayalatha – learned counsel for the appellants, argued that the notional income of Rs.4,000/- reckoned by the Tribunal in favour of the deceased is insufficient because, Ext.A8 series would show that he was earning more than Rs.20,000/- per month. She then submitted that since the deceased is survived by the appellants, who are four in number, the compensation under the head “loss of consortium” ought to have been Rs.1,60,000/-, rather than Rs.1,00,000/- presently awarded. She thus prayed that the impugned Award of the Tribunal be modified. 3. Sri.Alex Antony Sebastian – learned Standing Counsel for M.A.C.A.No.3683 of 2016 : 4 : the 1[st] respondent – Kerala State Road Transport Corporation (KSRTC), on the other hand, argued that the impugned Award of the Tribunal is wholly untenable, because the negligence of the 2[nd] respondent, who was the driver of the bus, has not been proved at all. He then alternatively argued that the computation by the Tribunal, as regards the notional income of the deceased, was without error; but that it could not have granted Rs.25,000/- and Rs.20,000/- respectively under the heads “loss of estate” and “funeral expenses”, but only Rs.15,000/- for each. He thus prayed that this appeal be dismissed, but that the mistakes committed by the Tribunal be rectified. 4. I have evaluated the afore submissions on the touchstone of various materials and evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that they can be acted upon by this Court without dispute. 5. There is great force in the submission of Smt.M.R.Jayalatha, that the notional income of the deceased reckoned by the Tribunal is incorrect. This is because, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** the Hon'ble Supreme Court has held that, even in the case of a person with an M.A.C.A.No.3683 of 2016 : 5 : unascertainable income in the year 2005, the notional income to be taken must be Rs.5,000/-. Of course, Smt.M.R.Jayalatha relies upon Ext.A8 series – “Day Book”, maintained by the alleged business concern of the deceased – which is an Agency of a Tea Company at Kurumathoor – to assert that he was making Rs.20,000/- per month as income. However, this document has not been proved at all; and in any event, as rightly found by the learned Tribunal, it only contains certain entries in the name of the deceased, but without specifying whether it was his income or expenses that were defrayed by the afore mentioned Tea Company. Obviously, Ext.A8 cannot be relied upon, and the Tribunal, therefore, was completely justified in having disregarded it; but, as already said above, it ought to have reckoned the notional income at least in terms of **Ramachandrappa (supra).** 6. Further, since the deceased was only 30 years old at the time of his death, going by Ext.A4 – his school leaving certificate (the Tribunal having recorded it incorrectly as being 32 years), the appellants are entitled to 40% future prospects on his notional income and the multiplier of 17 to be adopted. 7. However, before I conclude, I must certainly deal with the argument of Sri.Alex Antony Sebastian – learned Standing Counsel for the KSRTC, that there is no evidence to show that the 2[nd] M.A.C.A.No.3683 of 2016 : 6 : respondent – driver of the bus, was negligent. I am afraid that, I cannot find favour with this at all because: for one, no evidence was led by the KSRTC, either oral or documentary; and, for the second, Ext.A1 – First Information Report (FIR), registered in crime No.292/2005 of the Payangadi police station, records indubitably that the blame for the accident rests wholly on the driver of the bus. If the KSRTC had a case that this FIR did not culminate in a charge sheet against the 2[nd] respondent, it was certainly up to them to have led evidence to such effect, but the factum of them not having even made such an effort would clearly stand against them. Added to this, Ext.A2 – Postmortem Certificate and Ext.A3 – Death Certificate show that Ivan Joseph died in a road accident, and unless there is any controverting evidence, the negligence of the 2[nd] respondent will have to be taken as fully proved. 8. That being said, there is some force in the further submissions of Sri.Alex Antony Sebastian, because the compensation under the heads “loss of estate” and “funeral expenses” could not have been more than Rs.15,000/- each, going by **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)];** while no amounts could have been granted under the head “loss of love and affection”. However, under the head “loss of consortium” another Rs.60,000/- is required to be M.A.C.A.No.3683 of 2016 : 7 : added, since all the appellants are admittedly dependent on the deceased. Resultantly, this appeal is allowed in the following manner: - (a) The compensation under the head “loss of dependency” is revised to Rs.10,71,000/-, instead of Rs.8,64,000/-, taking the notional income of the deceased to be Rs.5,000/- with 40% future prospects added to it and 1/4[th] deducted as his personal expenses. - (b) The compensation awarded by the Tribunal under the head “loss of love and affection” is deleted. - (c) The compensation awarded by the Tribunal under the heads “loss of estate” and “funeral expenses” are revised to be Rs.15,000/- each, instead of Rs.25,000/and Rs.20,000/- now granted. - (d) The compensation under the head “loss of consortium” is enhanced to Rs.1,60,000/-, from Rs.1,00,000/- now given. - (e) In all other heads the compensation awarded by the Tribunal will remain unaltered. Needless to say, the appellants will be at full liberty to recover the compensation, as enhanced by this Court, from the M.A.C.A.No.3683 of 2016 : 8 : respondents, along with interest at the rate of 8% as awarded by the Tribunal and following the percentages of apportionment as ordered by it, from the date of the claim until it is recovered. They will also be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal. **Sd/DEVAN RAMACHANDRAN JUDGE** anm