M.A.C.A. No.495 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943** ## **MACA.No.495 OF 2013** **AGAINST THE REVISED AWARD IN OPMV 1330/2007 DATED 15-09-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL** ## **APPELLANT/1ST RESPONDENT:** **KERALA STATE ROAD TRANSPORT CORPORATION REP BY ITS MANGING DIRECTOR, OFFICE OF THE KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM** **BY ADV. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN.** ## **RESPONDENTS/APPLICANTS & 2ND RESPONDENT:** **1 LALITHAKUMARI.S., AGED 43 YEARS LATHIKA MANDIRAM, MANNOORKONAM P O, 695541** ***2 DEVI VIJAYAN (MINOR) LATHIKA MANDIRAM, MANNOORKONAM P O, 695541** **3 KARTHIYANI AMMA, AGED 78 YERAS LATHIKA MANDIRAM, MANNOORKONAM P O, 695541** **4 PRASANNAKUMAR, AGED 53 YERAS CHIRATHALAKKAL PUTHENVEEDU, ARASUPARAMBU, NEDUMANGADU-695541.** ***(2ND RESPONDENT IS REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN THE FIRST RESPONDENT, VIDE ORDER DATED 14/08/2013 IN IA 2165/13 IN MACA 495/13)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-03-2021, THE COURT ON 31-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.495 OF 2013** **2** ## **`P.V.KUNHIKRISHNAN, J`** ``` --------------------------------------- M.A.C.A. No. 495 of 2013 ------------------------------------------ Dated this the 31[st] day of March 2021 ``` ## **`JUDGMENT`** ``` This appeal is filed against the revised award dated 15.09.2012 in O.P(M.V) No.1330/2007 on the file of the Motor Accidents Claims Tribunal, Attingal. The appellant is the 3[rd] respondent. This petition is filed claiming compensation under Section 166 of the Motor Vehicles Act. (Hereinafter the parties are referred in accordance to their rank before the Tribunal). ``` ``` 2.The short facts are like this:- Claimants Nos. 1 to 3 are the widow, minor daughter and mother of 'Vijayakumaran Nair' who died in a motor vehicle accident happened on 31.08.2007. According to the petitioners 'Vijayakumaran Nair' was a Police Constable and he was riding a motor cycle bearing ``` **MACA.No.495 OF 2013** **3** ``` Registration No.KL-01/V-3473 along .Vithura – Chullimanoor Public Road and when he reached at a place near Mannoorkonam junction, a KSRTC Stage Carriage bearing Registration No.KL-15/4349 driven by the 2[nd] respondent with excessive speed in a rash and negligent manner hit against the motor cycle ridden by the deceased 'Vijayakumaran Nair'. He sustained very serious injuries and he succumbed to it. Hence, the claim petition is filed by the legal heirs of the deceased for compensation. ``` ``` 3.To substantiate the case, Exhibits A1 to A were marked on the side of the petitioners. After going through the evidence and documents, the Tribunal fixed the compensation as Rs.14,51,964/- with interest at the rate of 7.5 % p.a., from the date of petition till realisation. Aggrieved by the quantum of compensation fixed by the Tribunal, this appeal is filed ``` **MACA.No.495 OF 2013** **4** ``` by the 1[st] respondent Kerala State Road Transport Corporation. ``` `4. Heard the learned Standing Counsel for the` `KSRTC.` ``` 5.The learned Standing Counsel raised two points. The learned counsel submitted that the finding of the Tribunal as far as the negligence of the 2[nd] respondent is concerned, it is not correct. The learned counsel also submitted that the post retirement compensation fixed by the Tribunal taking the multiplier as '8' is not correct and it ought to have been '3'. ``` `6. As far as the 1[st] point is concerned, the same` `will not stand in the light of the decision of this Court` ``` inThe New India Assurance Co. Ltd vs Pazhaniammal, [2011 (3) KLT 648]. Admittedly, the Police filed a final report against the driver of the ``` **MACA.No.495 OF 2013** **5** ``` KSRTC Bus. Therefore, there is prima facie evidence to show that the driver of the KSRTC is negligent. No contra evidence is adduced by the respondents. Therefore, finding on that aspect is to be confirmed. ``` ``` 7. Then the learned counsel submitted that the deceased was a Police Constable and he was getting an amount of Rs.9,925/-. He died at the age of 44 years. He has got 11 years service as on the date of the accident. Therefore, the learned Standing Counsel fairly conceded that the dependency compensation fixed by the Tribunal till the retirement of the deceased is correct. The learned counsel submitted that the post retirement compensation fixed by the Tribunal is not correct. According to the learned counsel, the Tribunal ought have used the multiplier '3'. He contended that the correct multiplier applicable in this case is '14' as per the decision of the Apex Court in ``` **MACA.No.495 OF 2013** **6** ``` Sarla Verma & Others v. Delhi Transport Corporation & another [2010 (2) KLT 802]. Since the multiplier '11' is used for assessing loss of dependancy of the deceased, taking his service period of 11 years, the Tribunal ought to have taken the multiplier '3' for assessing the dependancy for the post retirement period. This is the submission. I think, there is force in the argument of the Standing Counsel. The correct multiplier that is to be used is '3'. But it is to be noted that the Tribunal fixed the notional income of the deceased as Rs.3,000/- after post retirement period. Deceased was a Police Constable. In the light of the decision of this Court inOriental Insurance Company Ltd.v. Valsa [2015 (1) KLT 781]and Kumaran and others v. Roy Mathew and Others [2017(1) KHC 594], the Tribunal ought have taken 50% of the salary as notional income during the post retirement period. Therefore, the post retirement ``` **MACA.No.495 OF 2013** **7** ``` dependency compensation is to be worked out like this:- ``` ``` 4962 x 12 x 3 x 2/3 = 1,19,088/- ``` ``` The Tribunal awarded an amount of Rs.1,92,000/- for this and it is to be substituted as Rs.1,19,088/-. In other words, the difference in the amount can be reduced from the total compensation awarded by the tribunal is Rs.72,912/- [1,92,000-1,19,088]. ``` `8. On all other heads, the amount awarded by the` `Tribunal is correct. No interference is necessary.` ``` 10. Therefore, the compensation awarded by the Tribunal is reduced to Rs.13,79,052/- [14,51,964- 72,912=13,79,052] ``` ``` Therefore, the appeal is allowed in part. The impugned award is modified and the appellant is ``` **MACA.No.495 OF 2013** **8** ``` entitled only an amount of Rs.13,79,052/- (Rupees Thirteen Lakhs Seventy Nine Thousand and Fifty Two Only) instead of Rs.14,51,964/-. All other findings of ``` ## **`Sd/-`** ``` P.V.KUNHIKRISHNAN JUDGE ``` ``` avs ```