MACA Nos. 615 & 1894 of 2011

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944 ``` ## `MACA NO. 615 OF 2011` ``` AGAINST THE AWARD DATED 30.03.2010 IN OP(MV) NO.1814/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## `APPELLANTS/RESPONDENTS 1 AND 2:` ``` 1THE SENIOR DIVISIONAL ENGINEER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION-695004. 2K.B.VENUGOPALAN, SON OF BALAKRISHNAN, KURUMALIKKAL HOUSE, CHAIPPIL P.O., KODANUR, THRISSUR DISTRICT-680574. BY ADVS.SRI.JAMES KURIAN SENIOR PANEL RAILWAYS SRI.S. BIJU SRI.VARGHESE P.THOMAS, SENIOR STANDING COUNSEL,RAILWAYS ``` ## `RESPONDENTS/PETITIONERS 1 AND 2:` ``` 1GOPI, S/O MANI, FATHER OF DECEASED, AGED 50 YEARS, PARAKAL HOUSE, P.O.ARIPPALAM, TRICHUR DISTRICT-680210. 2SOBHANA, AGED 43 YEARS, W/O.GOPI, MOTHER OF DECEASED, PARAKAL HOUSE, ARIPPALAM P.O., TRICHUR DISTRICT-680210. ``` ``` RESPONDENTS/ADDITIONAL RESPONDENTS 3 AND 4 ``` ``` 3THE MANAGING DIRECTOR, K.S.R.T.C., TRIVANDURM 695001 4SRI.SUKUMARAN, SON OF APPUKUTTAN, KIZHAKKETHIL HOUSE, CHOOZHATTUKOTTA,, VILAVOORKAL PANCHAYAT, NEYYATTINKARA TALUK,, TRIVANDRUM. 695024 ``` ``` R1 & R2 BY ADVS. SRI.N.AJITH SMT.SADHANA KUMARI ESWARI R3 BY ADVS. SRI.ALEX ANTONY SEBASTIAN P.A. SRI.BABU JOSEPH KURUVATHAZHA SC, KSTRC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.11.2022, ALONG WITH MACA.1894/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA.Nos.615 & 1894 of 2011 ``` ``` 2 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944 ``` ## `MACA NO. 1894 OF 2011` ``` AGAINST THE AWARD DATED 30.03.2010 IN OP(MV) NO.1814/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## `APPELLANTS/PETITIONERS IN OP(MV):` ``` 1GOPI, S/O.MANI, AGED 56, PARAKKAL HOUSE, P.O.ARIPPALAM, THRISSUR DISTRICT, PIN-680 688 (FATHER OF THE DECEASED). 2SOBHANA, W/O.GOPI, AGED 50, PARAKKAL HOUSE, P.O.ARIPPALAM, THRISSUR DISTRICT, PIN-680 688 (MOTHER OF THE DECEASED). BY ADVS.SMT.SADHANA KUMARI ESWARI SRI.N.AJITH ``` ## `RESPONDENTS/RESPONDENTS:-` ``` 1SENIOR DIVISIONAL ENGINEER, SOUTHERN RAILWAY, TRIVANDRUM,-695001. 2K.B.VENUGOPALAN, S/O.BALAKRISHNAN, KURUMALIKKAL HOUSE, CHAIPPIL P.O., KODANNUR,THRISSUR DISTRICT-680 574. 3THE MANAGER DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM-695 001. 4SUKUMARAN,S/O.APPUKUTTAN, KIZHAKKETHIL VEETIL, CHOOZHATTU KOTTA, VILAVOORKAL PANCHAYATH, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695 121. R1 & R2 BY ADVS.SRI.S. BIJU SRI.JAMES KURIAN, SC RAILWAYS R3 BY ADV. SRI.ALEX ANTONY SEBASTIAN P.A. SRI.BABU JOSEPH KURUVATHAZHA SC, KSRTC. THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.11.2022, ALONG WITH MACA.615/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA.Nos.615 & 1894 of 2011 ``` ``` 3 ``` ## **`JUDGMENT`** ## **`Dated this the 1[st] day of November, 2022`** Both appeals have been originated from an award passed by Motor Accidents Claims Tribunal, Irinjalakkuda (for short 'the Tribunal') on 30.03.2010 in O.P(M.V) No.1814/2005. 2. M.A.C.A No.1894/2011 is filed by the petitioners who are dependents of one Mr.Siju who died in a motor accident occurred at Kanichikulangara on 26.05.2005. They are seeking enhancement of the compensation stands awarded by the Tribunal. M.A.C.A.No.615/2011 is filed by the Senior Divisional Engineer, Southern Railway, Trivandrum and others who are respectively the owner, driver and insurer of the lorry bearing Registration No.KCT-6671, allegedly involved in the motor accident.They seek to fix negligence on the side of the driver of the KSRTC bus in the occurrence. The facts relevant for disposal of this appeal are as follows: ``` MACA.Nos.615 & 1894 of 2011 ``` ``` 4 ``` on 26.05.2005, a motor accident was occurred at Kanichikulangara with the involvement of a lorry bearing Registration No.KCT-6671, as well as a KSRTC bus bearing Registration No. KL-15/5745. In the motor accident that occurred, the driver of the lorry as well as a man sitting on his motorcycle kept on the side of the road sustained injuries and died on account of that. Raising an allegation that the accident was occurred due to the rash and negligent driving of the lorry by its driver and claiming for a sum of Rs.3,50,000/- as compensation, O.P(M.V) No.1814/2005 was filed before the Tribunal by the legal heirs and dependents of Mr.Siju who died in the motor accident. Later to the filing of the Original Petition seeking compensation the owner and driver of the KSRTC bus were also brought on record as additional 3[rd] and 4[th] respondents in the claim petition. 1[st] and 2[nd] respondents entered appearance and filed written statement contending that the accident was occurred due to the rash and negligent driving of the KSRTC bus by its driver who was arrayed as the 4[th] respondent in the Original Petition. 3. Additional 3[rd] and 4[th] respondents also entered appearance and filed written statements, but those being filed ``` MACA.Nos.615 & 1894 of 2011 ``` ``` 5 ``` belatedly, the Tribunal discarded those. 4. Evidence was adduced by both parties before the Tribunal. Exts.A1 to A6 were marked on the side of the petitioners. The 2[nd] respondent and a witness were examined as RW1 and RW2 and Exts.B1 to B7 were marked. 5. On appreciation of the evidence tendered as above the Tribunal has arrived at a finding that the driver of the lorry was rash and negligent in driving the same and causing the accident to occur. A sum of Rs.2,00,500/- was also arrived at as the compensation payable to the petitioners in the Original Petition and respondents 1 and 2 were directed to pay the same with interest at the rate of 7% per annum from the date of filing of the Original Petition till the date of realisation. Aggrieved by the quantum awarded by the Tribunal as compensation and raising a contention that this Court has every authority to modify it to make it just and reasonable, the appeal on hand was filed as MACA No.1894/2011 by the legal heirs and dependents of the deceased. Raising challenge against the finding on negligence, the owner of the lorry has also approached this Court by filing M.A.C.A.No.615/2011. ``` MACA.Nos.615 & 1894 of 2011 ``` ``` 6 ``` 6. Before the Tribunal documentary evidence has been adduced by the petitioners as Exts.A1 to A3 with a view to establish negligence of the driver of the offending vehicle. Ext.A1 is nothing but a certified copy of the FIR in Crime No.172/2005 of Mararikulam Police Station. Ext.A2 is the certified copy of the chargesheet laid by the police after concluding the investigation in the crime above on 10.04.2006 and Ext.A3 is the scene Mahazar prepared in the above crime. Going by Ext.A2, it is found that the driver of the lorry bearing Registration No.KCT-6671 was chargesheeted for offences punishable under Sections 279, 337, 338 and 304 A of the Indian Penal Code, 1860 (for short 'IPC'). Ext.A3 is the scene mahazar prepared in the crime. The place of occurrence is described as 8 meter 25 cm north east from an electric post situated on the western side of the road and 18 meter 19 cm south west from a telephone post situated on the eastern side of the road. The road was described in the scene mahazar as having a total width of 10m. The lorry was described in Ext.A2 as proceeding from north to south and the KSRTC bus was proceeding in the opposite direction. Therefore, there is every reason to hold that the driver of the KSRTC bus has crossed the ``` MACA.Nos.615 & 1894 of 2011 ``` ``` 7 ``` middle portion of the road and proceeded to the opposite direction to cause the accident in question. Therefore, negligence on the part of the driver of the KSRTC bus is well established from Exts.A1 to A3. The Tribunal on the basis of Ext.A2 found that the driver of the lorry was equally responsible for the accident by his rash and negligent driving. This case is found a fit one to attribute negligence to both the drivers in the proportion 50:50. The finding of the Tribunal that the driver of the lorry was responsible for the accident is reversed and liability is fastened on the drivers of the lorry as well as the KSRTC bus in the ratio of 50:50. M.A.C.A No.615/2011 stands allowed in part accordingly. 7. In M.A.C.A.No.1894/2011, the quantum of compensation awarded is under challenge for the reason that it is inadequate. Going by the impugned award this Court noticed that Rs.2,000/- was fixed by the Tribunal as monthly income for the purpose of computation of compensation for loss of dependency. The accident was occurred in the year 2005. The learned counsel for the appellant canvassed for fixing Rs.5,000/- notionally relying on the fixation of Rs.4,500/- as the monthly income for a coolie worker in Ramachandrappa v ``` MACA.Nos.615 & 1894 of 2011 ``` ``` 8 ``` Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]. This Court finds that in the Original Petition Rs.5,000/- claimed initially as monthly income got corrected later as Rs.4,500/-. Therefore, according to him this Court cannot fix a monthly income beyond the one claimed in the Original Petition. The deceased in the case on hand was pleaded by the petitioners as aged 21 years at the relevant time of his death. He was unmarried. He allegedly was a Medical Representative but no evidence was let in to establish the same. Therefore this Court is inclined to treat him only as a person self employed and therefore it is just and reasonable to add 40% of the monthly income to it and to deduct half of the amount towards the personal expenditure incurred by him, had he been alive. When determined in the above manner, Rs.37,800/- is arrived at as the multiplicand for the purpose of computation of compensation for loss of dependency. The Tribunal failed to add any amount to the monthly income fixed by it in consideration of future prospects. The Tribunal undoubtedly has also gone wrong in adopting the split multiplier method. The multiplier corresponding to the age of the deceased ought to have been adopted by the Tribunal and the deceased being aged 21 years, ``` MACA.Nos.615 & 1894 of 2011 ``` ``` 9 ``` it is 18. When the multiplicand arrived at as Rs.37,800/- is multiplied with the multiplier adopted as 18, Rs.6,80,400/- is arrived at. The Tribunal has already awarded Rs.1,68,000/-and when that is adjusted in the sum now arrived at, the petitioner will get Rs.5,12,400/- as additional compensation. 8. Under the head funeral expenses and loss of estate, the appellants in M.A.C.A. No.1894/2011 are entitled to get Rs.16,500/- each and under the head loss of consortium each of the petitioners are entitled to get Rs.44,000/- in view of National Insurance Company Limited v. Pranay Sethi [2017 (4) KLT 662 (SC)] . It is noticed that the Tribunal had awarded only Rs.3,000/- towards funeral expenses and Rs.10,000/- towards loss of estate. Under the head loss of consortium, the Tribunal failed to award any sum as compensation. But, Rs.15,000/- is awarded by the Tribunal under the head loss of love and affection. The petitioners being the dependents of the deceased are not entitled to get compensation both under loss of love and affection and loss of consortium. Therefore, Rs.15,000/- already awarded under the head loss of love and affection needs to be adjusted in the additional compensation now arrived at. This Court finds that the petitioners being parents of the deceased, ``` MACA.Nos.615 & 1894 of 2011 ``` ``` 10 ``` each of them are entitled to get Rs.44,000/- under the head loss of consortium and therefore Rs.88,000/- (Rs.44,000x2) is payable in total as additional compensation. Rs.15,000/awarded by the Tribunal under the head loss of love and affection when adjusted in that, Rs.73,000/- will be payable as additional compensation. 9. Under the head funeral expenses and loss of estate Rs.3,000/- and Rs.10,000/- respectively stand awarded by the Tribunal, and when those are adjusted in Rs.16,500/- payable, petitioners will get Rs.13,500/- and 6,500/- respectively as additional compensation under those heads. 10. In the above calculation, the appellants in M.A.C.A.No.1894/2011 are entitled to get Rs.6,05,400/ - (Rupees Six Lakhs Five Thousand and Four Hundred only) as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation excluding 483 days of delay occurred in filing the appeal on hand as ordered by this Court on 29.11.2011 in C.M.Application No.2835/2011 in M.A.C.A.No.1894/2011. In view of the finding of contributory negligence and fixation of negligence in the ratio 50:50 on both ``` MACA.Nos.615 & 1894 of 2011 ``` ``` 11 ``` the drivers of the lorry as well as the KSRTC bus, each of them are bound to pay half of the amount already awarded by the Tribunal in the impugned award with interest as well as the amount now arrived at as the additional compensation with interest fixed on it, within a period of two months from the date of receipt of a certified copy of this judgment therein. M.A.C.A No.1894/2011 stands allowed accordingly. Sd/MARY JOSEPH JUDGE ``` MJL ```