Mary Joseph and others v. Managing Director, KSRTC and Sadasivam

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943 ``` ## `MACA NO. 1446 OF 2012` ``` AGAINST THE AWARD DATED 14.01.2011 IN OP(MV)NO.2261/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## `APPELLANTS/PETITIONERS 1 TO 5:` ``` 1MARY JOSEPH, AGED 53 YEARS, W/O.LATE JOSEPH, RESIDING AT PARODATH HOUSE, PERUMPADAPP, PALLURUTHY.P.O. ``` ``` 2MEBIN P.JOSEPH, AGED 25 YEARS, S/O.LATE JOSEPH, RESIDING AT PARODATH HOUSE, PERUMPADAPP, PALLURUTHY.P.O. ``` ``` 3AKHIL P.JOSEPH, AGED 23 YEARS, S/O.LATE JOSEPH, RESIDING AT PARODATH HOUSE, PERUMPADAPP, PALLURUTHY.P.O. 4NIKHIL JOSEPH (MINOR), AGED 12 YEARS, S/O.LATE JOSEPH, RESIDING AT PARODATH HOUSE, PERUMPADAPP, PALLURUTHY.P.O., REPRESENTED BY MOTHER AND NATURAL GUARDIAN MARY JOSEPH. 5VIRONI PAUL, AGED 90 YEARS, M/O LATE JOSEPH, RESIDING AT PARODATH HOUSE, PERUMPADAPP, PALLURUTHY.P.O. ``` ``` BY ADVS.SRI.C.ARUN PRASANTH SRI.A.S.BRIJESH SMT.ROOPA RAMACHANDRAN ``` M.A.C.A.No.1446/2012 -:2:- ## `RESPONDENTS/ RESPONDENTS 1 & 2:` - `1 MANAGING DIRECTOR, KSRTC, THAMBANOOR.P.O., THIRUVANANTHAPURAM.695 001.` ``` 2SADASIVAM, S/O.AYYANKUNJU, CHANIVELIYIL HOUSE, CHARAMANGALAM, MUHAMMA.P.O., THANNIRMUKKOM, (S) VILLAGE, ALAPPUZHA.688 001. ``` ``` BY ADVS.SRI.JOY GEORGE, SC, K.S.R.T.C. SRI.ALEX ANTONY SEBASTIAN P.A. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1446/2012 -:3:- Dated this the 2[nd] day of February,2022 ## **J U D G M E N T** The appellants were the petitioners in O.P.(MV) No.2261/2007 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of T. P.Joseph(deceased) – the husband of the first appellant, the father of the appellants 2 to 4 and the son of the fifth appellant. It was their case that, on 07.07.2007, while the deceased was travelling in a bus bearing registration No. KL-15-3335 from Thoppumpady to Edacochi, due to the rash and negligent driving of the bus by the second respondent, the bus hit an electric M.A.C.A.No.1446/2012 -:4:- post. The deceased had suffered multiple injuries and was treated at the Medical Trust Hospital, Ernakulam from 07.07.2007 to 13.07.2007. Unfortunately, he succumbed to the injuries on 13.07.2007. The deceased was working as a Postman in the Postal Department, Government of India, and drawing a monthly salary of Rs.9,972/-. The bus was owned by the first respondent. The appellants were the dependents of the deceased. Hence, they claimed a compensation of Rs.18,06,192/- from the respondents, which claim was limited to Rs.13,00,000/-. 3. The respondents had filed a joint written statement, inter alia, refuting the allegations in the claim petition. They contended that the accident occurred due to the negligence of the deceased, who boarded the bus without proper care and fell to the M.A.C.A.No.1446/2012 -:5:- ground. Hence, the respondents may be exonerated of their liability. 4. The appellants had produced and marked Exts.A1 to A6 in evidence. The salary certificate of the deceased was summoned and marked as Ext.X1. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover from the first respondent an amount of Rs.11,51,872/- with interest and proportionate cost. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 7. Heard; Sri. C. Arun Prasanth, the learned counsel appearing for the appellants/petitioners and Sri. Alex Antony, the learned counsel appearing for the M.A.C.A.No.1446/2012 -:6:- first respondent -owner. 8. The sole point that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 9. Ext.A2 chargesheet filed by the Kochi City Traffic Police in Crime No.4611/2007 proves that the accident occurred due to the negligence of the second respondent. Admittedly, the first respondent was the owner of the bus. The respondents have not let in any evidence to discredit Ext.A2 chargesheet. Therefore, the first respondent is vicariously liable to pay the compensation amount to the appellants on account of the negligence of its own employee – second respondent. M.A.C.A.No.1446/2012 -:7:- ## **Income of the deceased** 10. The appellants had claimed that the deceased was a Postman in the Postal Department, Government of India, and was drawing a monthly salary of Rs.9,972/-. To substantiate their contention, they had summoned and marked the salary certificate of the deceased, which shows that he was drawing a salary of Rs.9,867/-. As the income of the deceased, did not exceed the income tax slab for the assessment year 2007-08, the Tribunal accepted and fixed the income of the deceased at Rs.9,867/- per month. I confirm the said finding of the Tribunal. ## **Multiplier** 11. The deceased was aged 48 years at the time of his death. In the light of the law laid down in **Sarla Verma v Delhi Transport Corporation** [2010(2) KLT M.A.C.A.No.1446/2012 -:8:- 802 (SC)], the relevant multiplier to be adopted is '13'. ## **Personal living expenses of the deceased** 12. The appellants were the wife, children and mother of the deceased. They are five in number. Going by the law laid down in **Sarla Verma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], ¼[th] of the compensation has to be deducted towards the ‘personal living expenses’ of the deceased. ## **Future prospects** 13. Following the principles laid down in **Sarla Verma** and **Pranay Sethi** (supra), and considering the fact that the deceased was aged 48 years at the time of his accident/death, the appellants are entitled to 30% as ‘future prospects’. M.A.C.A.No.1446/2012 -:9:- ## **Loss due to dependency:** 14. Taking into account the above-mentioned factors, namely; the notional monthly income of the deceased at Rs.9,867/-, the multiplier at ‘13’, ‘future prospects’ at 30% and after deducting one-fourth of the compensation towards the ‘personal living expense’ of the deceased, I award the appellants an amount of **Rs.15,00,770/-** towards 'loss of dependency', instead of Rs.10,99,872/- awarded by the Tribunal. **Conventional/Traditional heads of compensation** 15. In paragraph 59.8 of **Pranay Sethi (supra)** it is held that the dependents of the deceased are entitled for compensation under the conventional heads viz., ‘funeral expenses’, ‘loss of estate’ and ‘loss of consortium’ at Rs.15,000/-, Rs.15,000/- and M.A.C.A.No.1446/2012 -:10:- Rs.40,000/- per dependent, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 16. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd.** [2021 SCC Online SC 967] and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another** [2021 SCC Online SC 1193], the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered on 31.10.2017, and not for accidents that M.A.C.A.No.1446/2012 -:11:- occur every three years after 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', and Rs.44,000/- under the head 'loss of consortium'. 17. In the instant case, the Tribunal has awarded an amount of Rs.5,000/- towards ‘funeral expenses’ and Rs.10,000/- towards ‘loss of consortium’. In the above circumstances, I award the appellants a further amount of **Rs.11,500/-** under the head ‘funeral expenses’ and a further amount of **Rs.2,10,000/-** ‘ towards loss of consortium’ i.e., an amount of Rs.44,000/- each to the appellants. 18. The Tribunal has not awarded any amount under the head 'loss of estate'. Hence, I award the appellants an amount of **Rs.16,500/-** under the said M.A.C.A.No.1446/2012 -:12:- ## head. ## **Loss of love and affection:** 19. The Tribunal has awarded an amount of Rs.25,000/- under the head 'loss of love and affection'. In **New India Assurance Co. v. Somwati** **and others** [(2020) 9 SCC 644], the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would amount to duplication of compensation. Therefore, I set aside the amount of Rs.25,000/- awarded under the head 'loss of love and affection'. ## **Pain and sufferings:** 20. The Tribunal has awarded an amount of Rs.10,000/- as compensation under the head ‘pain and M.A.C.A.No.1446/2012 -:13:- sufferings’ for the death of the deceased. As the deceased had passed away only after six days after the accident, I find that the amount to be reasonable and just. Similarly, I confirm the amount of Rs.2,000/awarded under the head ‘transportation expenses’. 21. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellants/petitioners 1 to 5 are entitled for enhancement of compensation as modified and re- calculated above, and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Transport|2,000|2,000| M.A.C.A.No.1446/2012 -:14:- ||expenses||| |---|---|---|---| |2|Funeral<br>expenses|5,000|16,500| |3|Pain<br>and<br>sufferings|10,000|10,000| |4|Loss of estate|Nil|16,500| |5|Loss of<br>consortium|10,000|2,20,000| |6|loss of love and<br>affection|25,000|Nil| |5|Loss of<br>dependency|10,99,872|15,00,770| ||**TOTAL**|**11,51,872**|**17,65,770**| 22. Even though the appellants had claimed only an amount of Rs.13,00,000/-, I have awarded them more compensation than what is claimed in the claim petition, following the principles laid down in **Sarla** **Verma** and **Pranay Sethi** (supra) by awarding them 'future prospects' as well as compensation under the conventional heads. Thus, I have awarded them more compensation than what is claimed in the claim M.A.C.A.No.1446/2012 -:15:- petition. The said course is admissible in the light of the law laid down in **Nagappa vs. Gurudayal Singh** [2003 (1) KLT 115(SC)] and **Rajesh vs. Rajbir Singh** [2013 (3) KLT 89 (SC)]. In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.6,13,898/-** with interest at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 380 days i.e., the period of delay in filing the appeal and as ordered by this Court on 25.07.2012 in C.M.Appln. No.1722/2012, and proportionate costs. The first respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellants M.A.C.A.No.1446/2012 -:16:- in the ratio of 30:20:20:20:10, after deducting their liability, if any, towards court fee, and in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/02.02.22 //True copy/ P.A.To Judge