Managing Director KSRTC, Karnataka v Annam, Lisy, Pauloose, Stephen and Thippanna (MACA No. 2361 of 2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 20TH DAY OF OCTOBER 2016/28TH ASWINA, 1938** ## **MACA.No. 2361 of 2016 ()** ## **------------------------AGAINST THE AWARD IN OPMV 1720/2012 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR DATED 27-02-2016** **APPELLANT(S)/1ST RESPONDENT:** **--------------------------MANAGING DIRECTOR KSRTC, KARNATAKA, REPRESENTED BY DIVISIONAL CONTROLLER KSRTC CENTRAL OFFICE, K.H.ROAD, CHICKABALLAPUR, BANGALORE-562 101** ## **BY ADV. SRI.SHEJI P.ABRAHAM** ## **RESPONDENT(S)/PETITIONERS/2ND RESPONDENT:** - **----------------------------1. ANNAM AGED 66 YEARS, W/O VARGHESE, THOTTANGARA HOUSE, NADAPPILLITHODE, EDAVOOR PO-683 544 (WIFE OF THE DECEASED VAREETH)** - **2. LISY AGED 48 YEARS, W/O YACOB, POONOLY HOUSE, KOODALAPPAD, KOOVAPPADY PO-683 544 (DAUGHTER OF THE DECEASED VAREETH)** - **3. PAULOSE AGED 46 YEARS, S/O VARGHESE THOTTANGARA HOUSE, NADAPPILLITHODE, EDAVOOR PO-683 544 (SON OF THE DECEASED VAREETH)** - **4. STEPHEN AGED 40 YEARS, S/O VARGHESE THOTTANGARA HOUSE, NADAPPILLITHODE, EDAVOOR PO-683544 (SON OF THE DECEASED VAREETH)** - **5. THIPPANNA S/O BASSAPPA, 28/4 SVT COLONY HEJJALA PO, RAMNAGAR, KARNATAKA-562 109** **R1-R4 BY ADV. SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2361 of 2016 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of October, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** The appellant was the first respondent in O.P.(M.V.) 1720/2012 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The bus owned by the appellant involved in a motor vehicle accident on 24.10.2012 and in the said accident one Vareeth lost his life. Respondents 1 to 4 herein who are the legal heirs of the deceased moved the above mentioned claim petition under Section 166 of the M.V. Act seeking compensation for his death. The evidence before the Tribunal consisted only of documentary evidence from the part of the respondents 1 to 5 viz., the claimants. The Tribunal on evaluating the evidence on record and the rival contentions passed the impugned award whereby a total compensation of Rs.6,11,000/- was granted with interest at the rate of 9% per annum from the date of petition till realisation. The appellant mounts challenge against the award on various grounds. M.A.C.A.No.2361 of 2016 2 2. On hearing Sri. Sheji P. Abraham, learned counsel for the appellant and Sri.A.N. Santhosh, learned counsel who entered appearance on behalf of respondents 1 to 4/the claimants before the Tribunal it is evident that the dispute in this appeal is confined only to the quantum of compensation. In other words there is no dispute regarding the vicarious liability of the appellant. In such circumstances issuance of notice to the 5[th] respondent who was the driver of the offending vehicle is absolutely unnecessary and therefore, it is dispensed with. In such circumstances, we are inclined to proceed with the consideration of this appeal on merits at this stage itself. 3. The learned counsel for the appellant submitted that the Tribunal ignored certain relevant aspects while fixing compensation for loss of dependency. It is the submission that the claim petition itself would reveal that among the claimants 2 to 4 who are the children of the deceased were aged 44, 42 and 36 years respectively on the date of his death. Therefore it is submitted that the Tribunal ought not have treated claimants 2 to 4 as M.A.C.A.No.2361 of 2016 3 dependants of the deceased Vareeth and deduction towards personal expenses ought to have been done taking the number of dependants as only one. In other words instead of making a deduction of ¼ of the income of the deceased it ought to have been ½ of the income. The learned counsel further submitted that a glance at the schedule of compensation given in the impugned award would reveal that the first respondent who was the widow of the deceased was granted an amount of Rs.1 lakh towards loss of consortium and then in addition to that she was granted, evidently, 1/4[th] share is Rs.2,50,000/- viz., the compensation under the head loss of love and affection. As regards the compensation for loss of love and affection it is submitted that considering the age of respondents 2 to 4/claimants 2 to 4 as mentioned above, the compensation granted is on the higher side. The learned counsel appearing for the claimants viz. respondents 1 to 4 submitted that virtually the Tribunal erred in fixing the monthly income of the deceased. True that he was aged 70 years on the date of the death, but at the same time the evidence on record itself M.A.C.A.No.2361 of 2016 4 would reveal that he met with the accident while driving the scooter which would indicate that he was healthy, it is submitted. In such circumstances the Tribunal ought not have fixed the monthly income meagrely at Rs.5,000/especially taking note of the fact that the accident occurred on 24.10.2012, it is further submitted. The learned counsel also submitted that the probable income in view of the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** ought to have been more, as in that case in respect of an accident which occurred in 2004 the Hon'ble Apex Court fixed Rs.4,500/- as the monthly income for calculation purpose and the accident in question occurred more than 8 years since the incident involved in **Ramachandrappa** 's case. The learned counsel also submitted that taking note of the fact that the claimants were none other than the wife and children of the deceased the Tribunal cannot be said to have been committed an error in making the deduction only of ¼[th] from the income of the deceased. It is submitted that the M.A.C.A.No.2361 of 2016 5 compensation granted under the head loss of love and affection also cannot be said to be exorbitant warranting an interference. It is the submission that respondents 2 to 4 are the children of the deceased. Merely because of the fact that they were major at the time of death of their father it cannot be a reason to canvass the position that the compensation granted to them towards love and affection is exorbitant. They lost their father and thereby the paternal love and affection. In short, it is the contention that there is absolutely no reason to interfere with the impugned award as that was granted thereunder is nothing but a just compensation. 4. Having heard the learned counsel on both sides, we are of the view that the main question to be looked into in this case is whether the compensation granted under the heads 'loss of dependency' and 'loss of love and affection' require interference. We will firstly consider the question whether the compensation granted under the head loss of dependency requires interference. The learned counsel for the appellant relied on a decision of this court in M.A.C.A.No.2361 of 2016 6 ## **Thressiamma v. State Express Transport Corporation** **(TN) Ltd. [2016 (1) KLT 190]** . The learned counsel placed reliance on it to canvass the position that in the case of death of an aged person the children who attained majority could not claim compensation for dependency contending that they were depending on him. In that case the deceased was an octogenarian aged 82 years and obviously the children were above 40 years. In fact, the children were aged respectively 57, 55, 52 and 42 years. In such circumstances, it was held that the children ought not have been treated as dependents of the deceased father for the purpose of calculating compensation for loss of dependency. In the case on hand, as noticed hereinbefore the youngest among the children was aged 36 years on the date of the death of their father and the other two children were aged 46 and 44 years respectively. Their father died at the age of 70 years. In such circumstances, we are of the view that the learned counsel for the appellant is justified in contending that the dictum laid down in Thressiamma's case would squarely applies in this case on hand. When the M.A.C.A.No.2361 of 2016 7 children are aged above 35 years they cannot be said to be the dependants of their aged father or mother unless they would establish that owing to any disability they (the concerned son or daughter) are not capable of maintaining himself. But at the same time we are of the view that one cannot be oblivious of the fact that the term 'dependency' cannot always be understood strictly associated with financial reliance. In the case of children merely because they have grown up their dependency to the parents would not cease. It is not uncommon in our society that elderly people despite the old age continue to earn for the family or at least contributing to the family. In this case the accident occurred at the fag end of 2012 precisely on 24.10.2012. The evidence on record itself would reveal that the deceased met with the accident when he was riding his motorcycle. Thus it is evident that even in the age of 70 he was healthy even to ride motorcycle on his own. The inquest report which is a marked document in this case would reveal that the witnesses given statement to the effect that he was a businessman. The fact that even at the M.A.C.A.No.2361 of 2016 8 age of 70 years he was healthy to drive a vehicle itself would reveal that he had not lost his potential to earn. In such circumstances we do not find any reason to hold that granting of compensation reckoning his contribution to the family warrants interference. In such circumstances, even while holding that the there is some substance in the contention of the learned counsel especially in the light of the decision in Thressiamma's case that the children at that age ought not have been treated as dependants for the purpose of calculating compensation for loss of dependency, we are of the view that the quantum of compensation fixed under that head by the Tribunal is a palpable illegality or irregularity warranting appellate interference, on the ground of exorbitancy or inadequacy. 5. Now, we will consider the question whether the fixation of compensation under the head loss of love and affection invites interference. While considering the said fact it is to be noted that the said amount was granted, going by the schedule itself, to all the claimants i.e to the wife and 3 minor major children. In the case of she was M.A.C.A.No.2361 of 2016 9 granted compensation for Rs.1 lakh under the head loss of consortium. When she was granted compensation for loss of consortium, taking into account the elements like love and affection granting further amount to her reckoning the factors love and affection would amount to duplication. While considering the question of exorbitancy the fact that claimants 2 to 4 were aged 46, 44 and 36 years at the time of death of their father Vareeth also has to be taken into consideration. Therefore the question is to what extent grant of compensation of Rs.2,50,000/- to the wife and 3 major children invites any interference. In that context the decision of the Apex Court in **Rajesh v. Rajbir Singh** [ **2013 (3) KLT 89 (SC)]** also assumes relevance. In that case in the case of two minor children who lost their father, the Hon'ble Apex Court altogether granted an amount of Rs.1 lakh to them. We have no hesitation to hold that if two minor children were granted only Rs.1 lakh under the head of loss of love and affection three major children cannot claim more than that. In any view of the matter grant of Rs.2,50,000/- towards loss of love and affection to the M.A.C.A.No.2361 of 2016 10 applicants is certainly exorbitant and it warrants an interference. We are of the considered view that taking note of the decision in **Rajesh** 's case and all relevant factors it would be fair and just to grant Rs.30,000/- each to the claimants 2 to 4, the three major children under that head. But at the same time it is a fact borne out from record that the Tribunal has not granted compensation under the head loss of estate. Even though there is no evidence on that aspect it is permissible to grant a conventional amount under that head. Hence, we are inclined to grant an amount of Rs.10,000/- under that head. In the light of the discussion as above, we are of the view that the quantum of compensation fixed by the Tribunal invites interference in as much an amount of Rs.1,50,000/- was granted in excess. The said amount cannot be adjusted against any other heads as a bare perusal of the compensation granted under other heads would reveal that the appellants were granted adequate compensation under all other heads. In such circumstances we are inclined to modify the award. Hence, this appeal is allowed and the impugned award is modified 11 M.A.C.A.No.2361 of 2016 by deducting Rs.1,50,000/- granted in excess to the appellants. In other words, the respondents 1 to 4/ claimants are entitled to get a total compensation of Rs.4,61,000/- (Rupees four lakhs sixty one thousand only) [6,11,000-1,50,000]. The appellant is directed to deposit the said amount along with interest and costs fixed by the Tribunal, within a period of two months from the date of receipt of a copy of this judgment. There will be no order as to costs in the appeal. Sd/- **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg/