MACA Nos.3577/2020 & 3541/2020 — Thankayyan Nadar and Rose Mary v. KSRTC and others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944 ``` ## `MACA NO. 3577 OF 2020` ``` [AGAINST THE AWARD DATED 23.08.2016 IN OP(MV)NO.247/2008 ON THE ``` ``` FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, NEYYATINKARA] ``` ## `APPELLANT/PETITIONERS:` - `1 THANKAYYAN NADAR, AGED 82 YEARS, S/O DANIEL, PONGUVILA PUTHEN VEEDU, ANCHUMARAMKALA, VELLARADA P O, THIRUVANANTHAPURAM DISTRICT.` - `2 ROSE MARY, AGED 76 YEARS, W/O THANKAYYAN NADAR, PONGUVILA PUTHEN VEEDU, ANCHUMARAMKALA, VELLARADA P.O, THIRUVANANTHAPURAM DISTRICT.` ``` BY ADVS.ADITHYA RAJEEV SHRI.S.ANEESH ``` ## `RESPONDENTS / RESPONDENTS:` - `1 MANAGING DIRECTOR, KSRTC, TRANSPORT BHAVAN, FORT P.O, THIRUVANANTHAPURAM DISTRICT, PIN-695 023.` - `2 K.ANILKUMAR, S/O.KESAVAN, PARAYANVILAKATHU VEEDU, ALIYADU P.O., VENJARAMOODU, THIRUVANANTHAPURAM DISTRICT, PIN-695607.` - `3 MRS.KHADIJA FAISY, SEENA MANZIL, *(DELETED) PERUMADOM, KONGAL, PARAVOOR, KOLLAM DISTRICT, PIN-691301.` - `4 THE NEW INDIA ASSURANCE CO.LTD, BRANCH OFFICE, 2ND FLOOR, SWADESHABHIMANI COMPLEX, NEAR KSRTC BUS STAND, NEYYATINKARA P.O, THIRUVANANTHAPURAM DISTRICT, PIN-695121. REPRESENTED BY GENERAL MANAGER.` ``` *THE THIRD RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF APPELLANTS AS PER ORDER DATED 5/8/2022 IN IA NO.1/2022 IN MACA 3577/2020. ``` ``` BY ADVS.ALEX ANTONY SEBASTIAN P.A. ``` ``` R.RAJESH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2023, ALONG WITH MACA.3541/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NOS.3577 & 3541/2020 ``` ``` -2- ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944 ``` ## `MACA NO. 3541 OF 2020` ``` [AGAINST THE AWARD DATED 23.08.2016 IN ``` ``` OP(MV)NO.215/2008 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, NEYYATINKARA] ``` ## `APPELLANTS/PETITIONERS:` - `1 THANKAYYAN NADAR, AGED 82 YEARS, S/O.DANIEL, PONGUVILA PUTHEN VEEDU, ANCHUMARAMKALA, VELLARADA, THIRUVANANTHAPURAM DISTRICT.` - `2 ROSE MARY, AGED 76 YEARS, W/O. THANKAYYAN NADAR, PONGUVILA PUTHEN VEEDU, ANCHUMARAMKALA, VELLARADA, THIRUVANANTHAPURAM DISTRICT.` ``` BY ADVS.S.ANEESH SRI.ADITHYA RAJEEV ``` ## `RESPONDENTS/RESPONDENTS:` - `1 MANAGING DIRECTOR, KSRTC, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM DISTRICT-695 023.` - `2 K.ANILKUMAR, S/O.KESAVAN, PARAYANVILAKATHU VEEDU, ALIYADU P.O., VENJARAMOODU, THIRUVANANTHAPURAM, PIN-695 607.` - `3 MRS.KHADIJA FAISY, SEENA MANZIL, *(DELETED) PERUMADOM, KONGAL, PARAVOOR, KOLLAM DISTRICT, PIN-691 301.` ``` MACA NOS.3577 & 3541/2020 ``` **==> picture [22 x 9] intentionally omitted <==** ``` 4THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, 2ND FLOOR, SWADESHABHIMANI COMPLEX, NEAR KSRTC BUS STAND, NEYYATINKARA P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695 121. ``` ``` *THE 3RD RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 19/08/2022 IN IA 1/22 IN MACA 3541/2020. ``` ``` BY ADVS.ALEX ANTONY SEBASTIAN P.A. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2023, ALONG WITH MACA.3577/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NOS.3577 & 3541/2020 ``` ``` -4- ``` ## `JUDGMENT` ``` [MACA Nos.3577/2020, 3541/2020] ``` ``` The grandparents ofRoshna Selastin and ``` ``` Reshma Selastin, who were unfortunately involved and killed, at the age of eight and eleven respectively, in a road accident which occurred on 10.12.2007, are the appellants in these two Appeals. ``` ``` 2.The appellants filed OP(MV)Nos.215/2008 ``` ``` and 247/2008 before the Motor Accidents Claims ``` ``` Tribunal, Neyyatinkara (‘Tribunal’, for short), seeking compensation of Rs.3,69,500/- each for the death of Roshna Selastin and Reshma ``` ``` Selastin; but which has been awarded only to an extent of Rs.1,54,500/- each. They thus impugn the Award of the Tribunal as being exiguous. ``` ``` 3.Since, as is evident from the afore ``` ``` narrative, the accident is the same and the factual circumstances are no different, I have ``` ``` MACA NOS.3577 & 3541/2020 ``` ``` -5- ``` ``` heard these two matters together, as has been requested by the learned counsel for the parties on both sides. ``` ``` 4.The constitutive facts involved in these cases would show that, while late Roshna and late Reshma were travelling along with their parents in a car, it skid and collided against a bus owned by the Kerala State Road Transport Corporation (KSRTC). The aftermath of the accident was horrendous, with three deaths and injuries to other travellers; and since no fault could be easily established, claims were moved by the appellants before the Tribunal under Section 163A of the Motor Vehicles Act, 1988 ``` ``` (‘MV Act’, for short). ``` ``` 5.As said above, the learned Tribunal has, ``` ``` however, granted much lesser than what has been sought for in both cases; and it has found the KSRTC responsible to pay the compensation, since ``` ``` MACA NOS.3577 & 3541/2020 ``` ``` -6- ``` ``` the bus in question was not covered by a valid insurance policy. ``` ``` 6.Sri.Adithya Rajeev – learned counsel for ``` ``` the appellants, argued that the Tribunal ought to have followed the declarations of the Hon’ble Supreme Court in Kurvan Ansari Alias Kurvan Ali ``` ``` v. Shyam Kishore Murmu[(2022) 1 SCC 317], in ``` ``` which, against a claim made under Section 163A of the ‘MV Act’, an amount of Rs.3,75,000/- was awarded, under the head “Loss of Dependency”, ``` ``` along with compensation under the traditional heads “Loss of Consortium” and “Funeral ``` ``` Expenses”. He argued that this is because, as ``` ``` per II Schedule of the ‘MV Act’, a much lesser ``` ``` sum alone would become payable; but the Hon’ble Supreme Court has held that, on account of the failure of the competent Authority to amend the saidSchedule,adeviationfromits prescriptions will have to be adopted and ``` ``` MACA NOS.3577 & 3541/2020 ``` ``` -7- ``` ``` consequently granted the aforesaid compensation. He argued that the facts of these cases are not different, except that the death of two minor children happened in the year 2007; while that noticed in Kurvan Ansari(supra)was in the year 2004. ``` ``` 7.Sri.P.Jacob Mathew,learned Standing ``` ``` Counselfor the 4threspondent –Insurance ``` ``` Company, submitted that he has no comment to offer on the afore assertions of the appellants, because his client – which is the insurer of the car – has ``` ``` already been exonerated by the Tribunal and there is no appeal against them. ``` ``` 8.Sri.Alex Antony Sebastian –learned ``` ``` Standing Counsel for the KSRTC, argued that the ``` ``` computations adopted by the Tribunal are without error; and that, since it has gone strictly by the requirements under II Schedule of the ‘MV Act’, no modification can be asked for by the appellants. ``` ``` MACA NOS.3577 & 3541/2020 ``` ``` -8- ``` ``` 9.I have considered the afore rival ``` ``` submissions on the touchstone of the 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 it can be acted upon by this Court without dispute. ``` ``` 10.The only question relevant for my ``` ``` consideration in these cases is whether the ``` ``` holdings and conclusions of the learned Tribunal - ``` ``` which has been done strictly in terms of II ``` ``` Schedule to the‘MV Act’ -are tenable, ``` ``` particularly in the light of the subsequent ``` ``` declaration by theHon’ble Supreme Court in ``` ``` Kurvan Ansari (supra). ``` ``` 11.As rightly argued by Sri.Adithya Rajeev, ``` ``` Kurvan Ansari(supra) was a case in which the ``` ``` claim was made under Section 163A of the ‘MV Act’; but theHon’ble Supreme Court held that, since the figures mentioned in the said Schedule have ``` ``` MACA NOS.3577 & 3541/2020 ``` ``` -9- ``` ``` remained for long without being amended, in spite of repeated orders to such effect, it cannot be followed in the case of deaths which happened much after the said section was brought into effect, namely in the year 1994. It then went on to innovate and grant Rs.3,75,000/- under the head “Loss of Dependency” in the case of death of a seven year old child in the year 2004, adopting the notional income to be Rs.25,000/- per annum. 12.The Appeals at hand certainly relate to the death of children who are similarly aged as the one noticed by the Hon’ble Supreme Court in Kurvan Ansari (supra), though in an accident which occurred nearly three years later. Obviously, the standards adopted by theHon’ble Supreme Court surely should guide me and I see no reason why I should not do so. ``` ``` In the afore circumstances, these Appeals are partly allowed in the following manner: ``` ``` MACA NOS.3577 & 3541/2020 ``` ``` -10- ``` ``` (a) The compensation under the head “Loss of Dependency” in both these Appeals are enhanced to ``` ``` Rs.3,75,000/-(Rupees three lakhs seventy five ``` ``` thousand only) each, adopting the notional income of the deceased to be Rs.25,000/- per annum. ``` ``` (b)Thecompensation to the appellants, who ``` ``` are the grandparents, under the head“Loss of ``` ``` Consortium” is granted to an extent of Rs.40,000/- ``` ``` (Rupees forty thousand only) each in both cases. ``` ``` (c) In addition, an amount of Rs.15,000/- ``` ``` (Rupees fifteen thousand only) is awarded under ``` ``` the head “Funeral Expenses” in both these cases. ``` ``` (d) In all other heads, thecompensation ``` ``` granted by the Tribunal will remain intact. ``` ``` Needless to say, the appellants will be at ``` ``` full liberty to recover the compensation, as enhanced by this Court in both these cases, from the KSRTC, along with interest at the rate of ``` ``` 9%, as awarded by the Tribunal, from the date of ``` ``` MACA NOS.3577 & 3541/2020 ``` ``` -11- ``` ``` claim until it is recovered. They will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. ``` ``` It goes without saying that, while calculating the interest as afore, a period of 1355 days, ``` ``` being the delay in filing these Appeals, will be deducted. ``` ``` After I dictated this part of the judgment, ``` ``` Sri.P.Jacob Mathew argued that, going byKurvan ``` ``` Ansari(supra), thecompensation for“Loss of ``` ``` Consortium” has been granted only to the parents ``` ``` and not to grandparents. Even though, technically, ``` ``` this may be true, the fact remains that, in the ``` ``` peculiar circumstances of these cases, noticing ``` ``` that the appellants had lost their son – the ``` ``` father of the children - also in the same ``` ``` accident, I am of the view that they are entitled ``` ``` to consortium for the death of their ``` ``` grandchildren. This is more so because, in Kurvan ``` ``` MACA NOS.3577 & 3541/2020 ``` ``` -12- ``` ``` Ansari(supra), theHon’ble Supreme Court has ``` ``` grantedcompensation for“Loss of Consortium”, even when under Section 163A of ‘MV Act’ no such was allowable. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ``` ``` akv ```