High Court of KeralaSingle Judge2020-09-07Appeal Allowed

MACA No.2513/2013

Case / Petition Number:MACA.No.2513/2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2020-09-07
Court Decision / Holding: Appeal allowed. The High Court modified the Tribunal’s award by adopting Rs.5,000 as notional monthly income, applying incremental income principles, and enhancing several heads of compensation (including loss of consortium and funeral expenses) while maintaining liability on the insured/respondent for the accident. The modified award must be paid within three months with interest at 7.5% per annum, with deductions for amounts already paid; there is no order as to costs.
Final Disposition: Appeal Allowed

Parties to the Case

Appellants / Petitioners

VALSALA (Wife of deceased)
ABIJITH (Son)
AISWARYA (Daughter)

Respondents

Managing Director, TNSTC, Mettupalayam Road, Coimbatore, Tamil Nadu (Owner of Bus TN 38/N-1370)
Dhanushkodi s/o Ponnappa Kounder (Driver)
Velumani (Deleted) (Conductor)

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Baby Mathew

Counsels for Respondents

• Adv. Subhash Cyriac
• Adv. Smita Joseph

Case Synopsis & Summary

This Kerala High Court judgment arises from MACA No.2513/2013 challenging the Motor Accident Claims Tribunal, Palakkad’s award in OPMV 897/2007 (dated 20-03-2012). The appellants, the wife and two minor children of a deceased welder, challenged compensation fixed for his death following a road accident involving a Tamilnadu State Transport Corporation bus. The Tribunal had computed the deceased’s monthly income at Rs.4,000 and held him 30% negligent for traveling on the footboard. The appellants argued that income was understated and that the Tribunal’s assessment of negligence and the compensation heads were erroneous, including future prospects and other costs. The court references Ramachandrappa and Pranay Sethi to endorse an incremental approach to income in the unorganized sector, and relies on Shajan v. Raman Pillai to address the conductor’s and driver’s negligence in footboard cases. It also cites Sarla Verma for heads of damages such as funeral expenses and loss of estate, and Magma General Insurance Co. Ltd. v. Nanu Ram for awards of loss of consortium. After re‑evaluating income (fixing at Rs.5,000) and enhancing several heads of compensation, the High Court allows the appeal in part, directing payment within three months with interest, and clarifies there is no costs order against either side.

Provisions of Law Cited

Section 123 read with Section 177 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Incremental income principle for self-employed/unorganized sector (Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., (2011) 13 SCC 236)
Future prospects/incremental enhancement principle (National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680)
Sarla Verma principle on heads of compensation (funeral expenses, loss of estate)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the Tribunal wrongly fixed the deceased’s monthly income at Rs.4,000 and that there was no adverse amendment to that figure; they urged for an income of Rs.5,000 with future prospects and for enhanced compensation under heads like transportation, extra nourishment, pain and suffering, and loss of dependency. They argued that the conduct on footboard does not absolve liability and relied on the Shajan v. Raman Pillai doctrine to attribute liability to the conductor/driver. They also pressed for appropriate damages for loss of consortium, funeral expenses, and loss of estate, citing Sarla Verma for guidance. They urged timely payment with appropriate interest and sought deposit/fixed deposits given the time elapsed.

Contentions of Respondents

The respondents defended the Tribunal’s assessment, maintaining monthly income at Rs.4,000 and the proportional liability; they disputed any amendment to monthly income and argued the original negligence finding was appropriate. They emphasized that the award should reflect the Tribunal’s calculations under heads of claim, with no unwarranted enhancement and no liability beyond what is warranted by evidence. They argued for limits on damages and adherence to statutory timelines.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	(2011) 13 SCC 236	Positive	Used to support incremental income in unorganized/self-employed sectors.
National Insurance Co. Ltd. v. Pranay Sethi	(2017) 16 SCC 680	Positive	Cited for the principle of incremental enhancement/future prospects in compensation.
Shajan v. Raman Pillai	(1994) KHC 494	Distinguished	Used to differentiate the tribunal’s negligence finding by focusing on conductor’s negligence in foot-board cases.
Sarla Verma and others v. Delhi Transport Corporation and others	(2010) 2 KLT 802	Positive	Cited for guidance on heads of compensation, including funeral expenses and loss of estate.
Magma General Insurance Co. Ltd. v. Nanu Ram and others	(2018) 4 RCR (Civil) 333	Positive	Cited for award principles on loss of consortium and related damages (Rs.40,000 to wife and children).

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 07TH DAY OF SEPTEMBER 2020 / 16TH BHADRA, 1942** ## **MACA.No.2513 OF 2013** **AGAINST THE AWARD IN OPMV 897/2007 DATED 20-03-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANTS/PETITIONERS:** - **1 SMT. VALSALA, AGED 46 YEARS, W/O.HARIHARAPUTHRAN,RESIDING AT KONDOTH HOUSE, ELAVANCHERY P.O,PALAKKAD DISTRICT** - **2 ABIJITH AGED 19 YEARS S/O.HARIHARAPUTHRAN, RESIDING AT KONDOTH HOUSE, ELAVANCHERY P.O, PALAKKAD DISTRICT** - **3 AISWARYA AGED 10 YEARS** - **D/O.W/O.HARIHARAPUTHRAN, RESIDING AT KONDOTH HOUSE, ELAVANCHERY P.O,PALAKKAD DISTRICT. APPELLANT 3 IS REPRESENTED BY THEIR GUARDIAN AND MOTHER 1ST APPELLANT,.SMT VALSALA** **BY ADV. SRI.BABY MATHEW** ## **RESPONDENTS/RESPONDENTS:** - **1 MANAGING DIRECTOR TNSTC, METTUPALAYAM ROAD,COIMBATORE, TAMILNADU 600 007 (R.C OWNER OF BUS NO T N 38/N-1370)** - **2 DHANUSHKODI S/O.PONNAPPA KOUNDER, AGED 52 YEARS, 5/32, MARIAMMAN KOVIL STREET, KURUMBAPALAYAM P.O, SARKASRSAMAKULAM,COIMBATORE,TAMILNADU 600 007 (DRIVER OF BUS NO T.N 38/N-1370)** - **3 VELUMANI(DELETED) AGED 59 YEARS S/O.SUBRAMANIPILLAI, 22/51,JEEVA STREET, KARUMALA, CHTTIPALAYAM,SUGARKAN P.O, COIMBATORE-7, TAMILNADU,(CONDUCTOR OF BUS NO TN-38/N-1370)(R3 IS DELRTED FROM PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 16/2/17 IN IA NO.552/17).** - **R1 BY ADV. SRI.SUBHASH CYRIAC** - **R1 BY ADV. SMTSHEEBA JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2513/2013 2 ## **JUDGMENT** ## **Dated this the 7[th] day of September, 2020** The appellants are wife and minor children of the deceased in a motor accident. The deceased a 44 year old, while traveling in a Tamilnadu State Transport Corporation bus, was thrown out. He fell on the road, suffered grievous injuries and was taken to the hospital on 3.9.2006, when the accident occurred. On 5.9.2006 he succumbed to the injuries. The Tribunal passed an award computing his monthly income at Rs.4,000/- and mulcting the deceased with 30% negligence, since he was travelling on the foot- board. The legal heirs of the deceased challenge the award passed mainly on the income computed, the negligence found on the deceased and also on the amounts awarded under the various heads. MACA No.2513/2013 3 2. The first contention is with respect to the income adopted. The claimant admittedly had asserted an income of Rs.5000/- for the deceased, who was a welder by profession. It is submitted by the learned Counsel that there was an amendment carried out enhancing the said amount to Rs.10,000/-. The learned Counsel for the Corporation has specifically argued that there is no such amendment carried out by the Tribunal. The records of the Tribunal has to be examined to understand whether an amendment has been carried out. There is no amendment to item 6 “monthly income” in the application. However an amendment is made under Part-I, of the amounts claimed under various heads. I have verified I.A. 408/2011 also; which is the amendment application. There is no specific amendment sought with respect to monthly income as available in item No.6 of the application. In MACA No.2513/2013 **==> picture [13 x 9] intentionally omitted <==** such circumstances, there is no scope for fixing any amount higher to Rs.5,000/- per month. 3. The Tribunal had adopted an amount of Rs.4,000/- as notional monthly income. A coolie was fixed with a notional income of Rs.4,500/per month in the year 2004, in _**Ramachandrappa v.**_ _**Manager, Royal Sundaram Alliance Insurance Company Limited**_ **[** _**(2011) 13 SCC 236**_ **]** . The Hon'ble Supreme Court has also recognised the principle that there would be incremental enhancement in the case of even self-employed individuals in the un-organised sector **(** _**National Insurance Co.**_ _**Ltd. vs. Pranay Sethi (2017)16 SCC 680**_ **)** . With respect to an unspecified job of a coolie considering the increase in cost of living and economic advancements over the years, it can be safely assumed that even a coolie would be eligible for incremental addition of at least Rs.500/- in every subsequent year. In such MACA No.2513/2013 5 circumstances, this court is of the opinion that an amount of Rs.5,000/- can be fixed as the monthly income. 4. As to negligence, the learned Counsel specifically referred to _**Shajan v. Raman Pillai**_ _**1994 KHC 494.**_ Therein a Division Bench found that if a passenger is allowed to travel in the foot-board, it is the negligence of the conductor of the bus and not the negligence of the passenger. In the present case also no other vehicle is involved and the deceased is said to have been traveling on the foot-board, when he was thrown out of the offending vehicle. In these circumstances, there is no reason to uphold the negligence as found by the Tribunal. 5. The learned Counsel for the Corporation has a contention that there is a specific allegation in the charge sheet that the passenger did not obey the instruction given by MACA No.2513/2013 6 the conductor. Annexure A14 Charge Sheet was produced with a translated copy. Paragraph 2 is specifically extracted hereunder; “On the same day, time and in the same incident the accused No.2 shown in the margin with the knowledge that permitting passengers to stand in foot step amounts to an offence, has permitted K.Hariharaputhran aged 45, S/o.Kutty Nair, Kondethu House, Elavanchery PO, Nenmmara Via, Plakkad, Kerala State to travel in the footstep of the Bus No.TN-38 No 1370 and has thereby committed offence punishable U/s 123 r/w 177 MV Act.” The conductor and driver both were arrayed as accused in the charge sheet. In such circumstances, this Court does not find any reason on the facts herein, to absolve the total liability of the owner, the Corporation, caused by the negligence of its employees, the driver and conductor. 6. The further contention of the learned counsel for the appellant is that no amounts were granted for future prospects and also under other expenses. MACA No.2513/2013 7 **==> picture [366 x 13] intentionally omitted <==** hospitalization for two days, this court is of the opinion that there has to be granted amounts to compensate transportation expenses, extra nourishment and pain and suffering. Further for loss of consortium, the wife and minor children are entitled to Rs.40,000/- each as per _**2018**_ _**= (11) SCALE 247 2018(4) RCR (Civil)333 [Magma General Insurance Co.Ltd. v. Nanu Ram and others].**_ There should also be Rs.15,000/-each granted for funeral expenses and loss of estate as per _**Sarla Verma and others v. Delhi Transport Corporation and others [(2010) 2 KLT 802]**_ . The following enhancement is made under various heads; MACA No.2513/2013 8 |**Sl** **.** **No** **.**||**Head of Claim**|**Amount** **awarded by** **the** **Tribunal** `|**Total amount** **after** **enhancement in** **appeal** `| |---|---|---|---|---| |**1**||**Transportation Expenses**|**Not allowed**|**5,000**| |**2**||**Extra-nourishment**|**Not allowed**|**3,000**| |**3**||**Pain and sufferig**|**Not allowed**|**10,000**| |**4**||**Loss of dependency**|**4,48,000**|**7,00,000** **(5000*2/3*125%*12*1** **4)**| |**5**||**Loss of Consortium**|**10,000**|**1,20,000**| |**6**||**Loss of love and** **affection**|**10,000**|**deleted**| |**7**||**Loss of estate**|**10,000**|**15,000**| |**8**||**Funeral expense**|**2000**|**15,000**| |**9**||**Medical expense**|**19000**|**19000**| |||**Total**|**4,99,000** **70% of the** **amount comes** **to Rs.3,49,300** **rounded off to** **Rs.3,50,000**|**887000**| MACA would stand allowed. Considering the fact that about thirteen years have elapsed from the date of the accident, and both the children have attained majority, there is no requirement to deposit any amounts in fixed deposit as MACA No.2513/2013 9 directed by the Tribunal. The payment as per the award and the modification made herein shall be made within three months with interest as directed by the Tribunal @ 7.5%, after deducting the amounts already paid or deposited. The claimants shall not be entitled to interest for 263 days for the amounts enhanced which is the delay occasioned in filing the appeal. The claimants shall produce a copy of a cancelled cheque of the Bank account in a Nationalized Bank in any one of their names, with authorization from others or in their joint/separate names and with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amounts through NEFT/RTGS mode to the said account/accounts, within three months thereafter failing which, the Tribunal shall proceed with the recovery in accordance MACA No.2513/2013 10 with law. The transfer/deposit of the award amount shall be made by the Insurance Company after first satisfying the liability to Court Fee payable by reason of the amounts awarded exceeding that claimed in the application; deducting the same from the award. No order as to costs. **Sd/K.VINOD CHANDRAN JUDGE** ## **Sn**