Meena @ Beena v. The Managing Director, KSRTC & Others (MACA No. 1603 of 2012)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945 ``` ## **`MACA NO. 1603 OF 2012`** ``` AGAINST THE ORDER/JUDGMENT OPMV 3096/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT CASES, THRISSUR ``` ``` APPELLANTS/PETITIONERS 1 TO 4: ``` - **`1 MEENA @ BEENA W/O. LATE JOY.`** - **`2 SEBIN JOY MINOR S/O. LATE JOY.`** - **`3 ANISHA JOY MINOR D/O. LATE JOY.`** - **`4 JOYAL M.JOY MINOR S/O. LATE JOY. ( MINOR APPELLANTS 2 TO 4 REPRESENTED HERIN BY THEIR GUARDIAN MOTHER THE 1ST APPELLANT) ALL ARE RESIDING AT MALIAAKKAL HOUSE, P.O.VATTANTHARA, PACHALIPURAM, THRISSUR DISTRICT.`** - **`BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.K.A.ANAS SRI.A.R.NIMOD`** ## **`RESPONDENTS/RESPONDENTS 1 & 2 & LRS OF 5TH PETITIONER:`** - **`1 THE MANAGING DIRECTOR, K.S.R.T.C KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM-1.`** - **`2 SUBRAMANIAN PILLA S/O. RAJAPPAN PILLA, RESIDING AT PUTHENPURAKKAL VEEDU, P.O.PUTHUR, KOLLAM-691507.`** - **`3 LILLY KOCHAPPAN D/O. LATE ELIAKKUTTY.`** - **`4 MARY CHACKO D/O. LATE ELIAKKUTTY.`** - **`5 SR. CLARA ANNIE D/O. LATE ELIAKKUTTY.`** - **`6 JOSE S/O. LATE ELIAKKUTTY.`** - **`7 JOSEPHEENA D/O. LATE ELIAKKUTTY.`** ``` MACA NO. 1603 OF 2012 ``` ``` ..2.. ``` - **`8 ANTO S/O. LATE ELIAKKUTTY.`** - **`9 SR. PHILO PHILOMINA`** - **`D/O. LATE ELIAKKUTTY.`** - **`10 VERONICA`** - **`D/O. LATE ELIAKKUTTY.`** - **`11 CLARA`** - **`D/O. LATE ELIAKKUTTY.`** - **`12 PAUL`** - **`S/O. LATE ELIAKKUTTY. (RESPONDENTS 3 TO 12 ARE RESIDING AT MALIAKKAL HOUSE, P.O., VATTANATHARA, PACHALIPURAM, THRISSUR-680302.`** - **`BY ADVS.`** ``` SRI.P.C.CHACKO(PARATHANAM) ALEX ANTONY SEBASTIAN P.A. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1603 OF 2012 ``` **==> picture [37 x 9] intentionally omitted <==** ## **JUDGMENT** The appellants are the petitioners 1 to 4 in O.P. (MV)No.3096 of 2004 on the files of the Motor Accidents Claims Tribunal, Thrissur. 2. The said claim petition was filed by the appellants, seeking compensation for the death of one Joy, due to the injuries sustained in a motor accident that occurred on 06.11.2004. According to them, the accident occurred when the auto-rickshaw driven by the said Joy, through Thrissur-Chalakudy Public Road, was hit by a KSRTC Bus bearing registration No.KL-15/5656, thereby, causing serious injuries to him. Even though he was taken to hospital, on the way, he succumbed to the injuries. The 2[nd] respondent was the driver of the said bus and the 1[st] respondent was the Managing Director of the KSRTC. The deceased was the husband of the 1[st] appellant, the father of the appellants 2 to 4 and the son of the 5th claimant, who passed away during the pendency of the claim petition. Respondents 3 to 12 in this appeal are the legal ``` MACA NO. 1603 OF 2012 ``` **==> picture [37 x 9] intentionally omitted <==** heirs of the deceased 5[th] claimant. According to the appellants, the deceased was an autorickshaw driver aged 39 years, earning Rs.6,000/- as monthly income. Besides the same, he was also conducting an STD booth. The claim petition was submitted in such circumstances seeking compensation. 3. The respondents did not file any written statement. 4. The evidence in this case consists of Exts.A1 to A13 from the side of the appellants. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 2[nd] respondent/driver of the bus. The 1st respondent was also held liable to pay the compensation, being the owner of the bus. 5. The quantum of compensation was fixed as Rs.3,60,000/- and the 1[st] respondent was directed to deposit the said amount with interest at the rate of 8% per annum from the date of petition till realization. This appeal is filed by the appellants in such circumstances, ``` MACA NO. 1603 OF 2012 ``` **==> picture [37 x 9] intentionally omitted <==** being dissatisfied with the quantum of compensation. 6. Heard Sri. T.C. Suresh Menon, the learned counsel appearing for the appellants and Adv.Sri Alex Antony Sebastian, the learned Standing Counsel appearing for the first respondent. 7. The only question that arises for consideration is whether any enhancement of compensation is necessary or not. On carefully going through the records, it is evident that the Tribunal awarded a meager amount as compensation, as the monthly income taken was on the lower side. Besides the same, the future prospects of the deceased was also not taken into account. Further, the deduction made towards personal expenses was 1/3[rd] , even though the deceased left behind five dependents. 8. When coming to the question of monthly income, the specific contention put forward by the learned counsel for the appellants is that the deceased was earning an amount of Rs.6,000/- from the avocation as an autorickshaw driver and also from the telephone STD booth conducted by him. Ext.A10 is the driving ``` MACA NO. 1603 OF 2012 ``` **==> picture [37 x 9] intentionally omitted <==** license of the deceased, which shows that he was authorized to drive a three-wheeler as of the date of the accident. Besides the same, the accident occurred when the deceased was driving the auto-rickshaw. Therefore, it can be safely concluded that he was an autorickshaw driver by profession. In addition to the same, the learned counsel also placed reliance upon Ext.A8, an application cum franchisee agreement from of Bharat Sanchar Nigam Ltd. for running the STD booth. When all the aforesaid aspects are taken into consideration, the monthly income of Rs.2,500 fixed by the Tribunal appears to be inadequate. It is to be noted that, in **Ramachandrappa** **v. The Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Apex Court was pleased to take the monthly income of an ordinary worker as Rs.4,500/-, even without any evidence, for the year 2004. In this case, the accident also occurred in the year 2004. However, considering the fact that the deceased was an autorickshaw driver and was also conducting an STD booth, a higher monthly ``` MACA NO. 1603 OF 2012 ``` **==> picture [37 x 9] intentionally omitted <==** income than mentioned in **Ramachandrappa’s case** can be taken. In the facts and circumstances of the case, I deem it appropriate to fix it as Rs.5,500/-. Since he was 39 years old at the time of the accident,40% of the monthly income is to be added towards future prospectus. Similarly, as he left behind his wife, three minor children, and an aged mother, the proper deduction for personal expenses should have been 1/4 and not 1/3, as taken by the Tribunal. In such circumstances, while reassessing the compensation with the above criteria, the amount of compensation for loss of dependency would come to Rs. 10,39,500/- [(5500 + 40%) X 12 X 15 X ¾]. The amount already awarded by the Tribunal is Rs.3,20,000/-; thus, the additional compensation would come to **Rs.7,19,500/-** . 9. The Tribunal awarded an amount of Rs.10,000/towards the loss of estate whereas the actual amount should have been Rs.15,000/- in the light of **National Insurance Company Ltd., v. Pranay Sethi [2017(4) KLT 662(SC)].** Accordingly, a further sum of **Rs.5,000/-** ``` MACA NO. 1603 OF 2012 ``` **==> picture [37 x 9] intentionally omitted <==** is awarded under the said head. 10. Moreover, the tribunal awarded Rs.5,000/towards the transportation and funeral expenses combined together. As far as the funeral expenses are concerned, the proper amount should have been Rs. 15,000/- in the light of **National Insurance Company Ltd., v. Pranay Sethi [2017(4) KLT 662(SC)]** and therefore, a further sum of **Rs.10,000/-** is awarded. 11. Since, Rs.5,000/- awarded by the tribunal towards transportation and funeral expenses has been appropriated by this Court while re-assessing the compensation towards the funeral expenses, a further - sum of **Rs.1,000/** is awarded as transportation expenses. 12. The next head which requires re-consideration is loss of consortium. In the light of **Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram [(2018) 18 SCC 130]** and **United India Insurance Co.Ltd v. Satinder Kaur, [2020 SCC OnLine SC 410]** all the claimants being wife, children and mother of the ``` MACA NO. 1603 OF 2012 ``` **==> picture [37 x 9] intentionally omitted <==** deceased were entitled for compensation for loss of consortium @ Rs.40,000/- each and thus making out a total amount of Rs.2,00,000/-. In the award, Rs.10,0000/was awarded towards loss of consortium and a sum of Rs.10,000/- was awarded for loss of love and affection. 13. As per the decision rendered by the Hon’ble Supreme Court in **Satinder Kaur @ Satwinder Kaur and Other [(2021)11 SCC 780],** when compensation for loss of consortium is awarded, no separate compensation needs to be granted for loss of love and affection. Therefore, the said amount can be adjusted towards the compensation for loss of consortium fixed by this Court. Thus the additional amount under the head would come to **Rs.1,80,000/** -. 14. Accordingly the total compensation is determined as **Rs.9,15,500/-** (Rs.7,19,500/- + 5,000/- + 10,000/- + 1,000/- + 1,80,000/-) In the result, this appeal is allowed, and the award dated 29.08.2009 in OP(MV)No.3096/2004 passed by the Motor Accidents Claims Tribunal, Thrissur is hereby ``` MACA NO. 1603 OF 2012 ``` **==> picture [44 x 9] intentionally omitted <==** modified by granting an additional amount of Rs **.9,15,500/-** (Rupees Nine Lakhs Fifteen thousand Five hundred only) and the said amount can be recovered from the 1[st] respondent with interest at the rate as ordered by the Tribunal and proportionate costs. As the delay of 943 days was condoned by this Court on condition that, the appellants shall not be entitled for interest for the additional amount pertaining to the period of delay, the 1[st] respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. This appeal is allowed accordingly. **Sd/-** **ZIYAD RAHMAN A.A,** **JUDGE** LU ``` MACA NO. 1603 OF 2012 ``` ``` ..11.. ``` ## **`APPENDIX OF MACA 1603/2012`** ``` PETITIONER ANNEXURES : ``` ## **`ANNEXURE A`** ``` ORGINAL COPY OF THE VOUCHER FOR PAYMENT OF COST ISSUED BY THE KERALA HIGH COURT ADVOCATES ASSOCIATION,DATED 02-09-2022 ``` ``` // True Copy // PA To Judge ```