Narayani and others v. Suresh K.P. and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944`** ## **`MACA NO. 2105 OF 2013`** ``` AGAINST THE AWARD DATED 12.11.2012 IN O.P(M.V) NO.425/2012 OF MOTOR ACCIDENTS ``` ## **`CLAIMS TRIBUNAL ,KOZHIKODE`** ## **`APPELLANTS/PETITIONERS IN THE O.P(M.V):`** ``` 1NARAYANI, AGED 40 YEARS, W/O.KRISHNANKUTTY, 2SALINI, AGED 15 YEARS D/O.KRISHNANKUTTY, (DOB 9.6.1998) MINOR, REPRESENTED BY MOTHER NARAYANI. 3ARUN, AGED 13 YEARS S/O.KRISHNANKUTTY, (DOB 18.10.2000) MINOR, REP.BY MOTHER NARAYANI. 4AMMALU, AGED 66 YEARS W/O.NARAYANAN, ALL ARE RESIDING AT CHAKKALAMKUNNATH, CHATHAMANGALAM, KOZHIKODE, NOW RESIDING AT MANGALASSERY THOTTAM, CHATHAMANGALAM, KOZHIKODE. ``` ``` BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN ``` ## **`RESPONDENT/S:`** - `1 SURESH K.P., S/O.NARAYANAN NAIR, KOORIPOYIL HOUSE, MANASSERY P.O., MUKKOM, KOZHIKODE-673 602.` - `2 SUNILRAJ.K. AGED 36 YEARS S/O.VASUDEVAN, RESIDING AT NELLIKKAPARAMBIL HOUSE, MANASSERY P.O., MUKKOM, KOZHIKODE-673 602.` - `3 THE NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, 2ND FLOOR, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE-673 001.` - `4 KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, TRIVANDRUM-695 001.` - `5 JOSE K.V. AGED 41 YEARS` ``` MACA NO.2105 OF 2013 ``` ``` 2 ``` ``` S/O.K.V.AUGUSTIN, KUNNATH HOUSE, PATHRONI NAGAR, MARIKUNNU P.O., KOZHIKODE-673 012. ``` ``` 6SOMAN AGED 43 YEARS S/O.VASU, SOPANAM, VARIYATHU PARAMBA, PAYIMBRA P.O., KOZHIKODE-673 571. 7BHASKARAN AGED 55 YEARS S/O.ADIYAN, VAISAKAM P.O., KALLURUTTI, NEELESWARAM, KOZHIKODE-673 603. BY ADVS. SRI.M.A GEORGE SRI.ARUM KUMAR. A (SC KSEB) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.2105 OF 2013 ``` ``` 3 ``` ## JUDGMENT Dated this the 10[th] day of March, 2023. This appeal is directed against an award passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short, ‘the Tribunal’) on 12.11.2012 in O.P.(M.V) No.425/2012. Appellants are petitioners before the Tribunal, who are legal representatives of one Mr.Krishnankutty, who died in a motor accident occurred at about 5.15 p.m on 21.04.2009. While stepping into a stage carriage bus at the bus stop, due to the rash and negligent driving by its driver, the bus came in contact with an electric line, and thereby, he got electrocuted. 2. The parties to this appeal will hereinafter be referred to as the petitioners 1 to 4 and respondents 1 to 7 in accordance with their status in the Original Petition. ``` MACA NO.2105 OF 2013 ``` ``` 4 ``` 3. Original Petition was moved claiming a total sum of `13,00,000/- as compensation. The owner, the driver and the insurer of the offending bus were arrayed as respondents 1 to 3 and the KSEB and its employees were arrayed as respondents 4 to 7 in the Original Petition. Liability was sought to be fixed on the driver, the owner and the insurer of the offending vehicle as well as the KSEB and its employees. Notice was served on all the respondents in the Original Petition. 4. Respondents 1 and 2 filed written statement denying negligence on the part of the 2[nd] respondent while driving the bus. It was contended that the motor accident was occurred not due to the negligent driving of the Bus by the 2[nd ] respondent but due to sole negligence of the K.S.E.B. 5. The 3[rd] respondent filed written statement admitting issuance of a valid policy for the offending vehicle ``` MACA NO.2105 OF 2013 ``` ``` 5 ``` covering the date of accident, but denying it's liability to indemnify the insured. Claims regarding the age, occupation, the monthly income of the deceased and the compensation were disputed. The accident was alleged as occurred solely due to the negligence of K.S.E.B and it's employees. 6. Respondents 4 to 7 filed written statement jointly denying negligence on their part. According to them, at the relevant time of the accident, there was lightening at the area and due to that the LTP pin insulator on the nearby post was broken and the line got detached from the crossarm and hanged. According to them, the accident was occurred due to negligence on the part of the driver of the offending bus itself for not taking due care while driving. 7. Evidence was adduced by both sides. Exts.A1 to A4 were marked on the side of the petitioners and Exts.B1 ``` MACA NO.2105 OF 2013 ``` ``` 6 ``` and B2 were marked on the side of the respondents. Based on the evidence on record, the Tribunal found the driver of the offending bus responsible for the accident by his rash and negligent driving. The Tribunal arrived at `6,12,000/as the compensation payable and directed the 3[rd] respondent to pay the said amount with interest at the rate of 7% per annum from the date of filing of the Original Petition till the date of realisation. The Tribunal absolved KSEB and its employees from liability to pay the compensation. Challenging the compensation stood awarded by the Tribunal for its unreasonableness and meagreness, the appeal on hand is filed by the petitioners. 8. The person who died in the motor accident has raised claims in the Original Petition that he was a Coolie worker, aged 45 years and earning `10,000/- monthly. From the ``` MACA NO.2105 OF 2013 ``` ``` 7 ``` cause title of the Original Petition, it came to notice that he was survived by his wife, two minor children and mother. The Tribunal took `4,500/- as the monthly income and 14 as the multiplier for calculating compensation for loss of re- dependency. The learned counsel canvassed for fixation of the monthly income based on the dictum in Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] . The learned counsel contended furthermore that the petitioners are also entitled to get compensation under the conventional heads in tune with the fixation by the Constitutional Bench of the Apex Court in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)], but, the Tribunal failed to award those sums. Accordingly, he urged for re-consideration and re-fixation of the compensation on its basis. ``` MACA NO.2105 OF 2013 ``` ``` 8 ``` 9. The learned counsel for the 3[rd] respondent contended on the contrary that the compensation stood awarded does not call for interference, being just and reasonable. According to him, evidence is not forthcoming from the petitioners to establish his claims about occupation and monthly income and therefore, the Tribunal was constrained to fix it as `4,500/- on a notional basis. 10. It is noticed that the Tribunal had fixed `4,500/as the monthly income on a notional basis. The Tribunal cannot be found fault with for the fixation of the monthly income on a notional basis for the reason that petitioners failed to adduce any evidence to establish it. As per the claim raised in the Original Petition, petitioner was a Coolie worker earning `10,000/- monthly. The accident in the ``` MACA NO.2105 OF 2013 ``` ``` 9 ``` case on hand being occurred in the year 2009, this Court re-fixes the monthly income as `7,000/-. Cogent evidence is not forthcoming to establish the age of the deceased. However, the Tribunal took his age as 45 years and that remained unchallenged by the respondent. Therefore, consideration of the age as 45 years and multiplier as 14 is maintained. Tribunal in disregard of the untimely death of the victim failed to consider loss of his future prospects. He being aged 45 years, 25% is reasonable to be added to the monthly income of the deceased in consideration of loss of future prospects and thus, `8,750/- is arrived at (`7,000/- + `1750/-). The deceased was survived by family members, four in numbers and therefore, 1/4th was deducted by the Tribunal from the monthly income fixed, in consideration of the personal expenditure liable to be ``` MACA NO.2105 OF 2013 ``` ``` 10 ``` incurred by the deceased, had he been alive. The deduction considered being correct is maintained. 11. In the reassessment of compensation towards loss of dependency, `11,02,500/- is arrived at (`8,750/- x 12 x 14 x 3/4). `5,67,000/- stood awarded by the Tribunal when adjusted against the sum now arrived at, petitioners will get `5,35,500/- as additional compensation. As compensation towards loss of consortium, `10,000/- was awarded by the Tribunal. Each of the petitioners in view of Pranay Sethi supra is entitled to get Rs.44,000/-. Thus, `1,76,000/(`44,000/- x 4) is arrived at, wherefrom `10,000/- stood awarded by the Tribunal is deducted and thus the petitioners will get `1,66,000/- (Rupees One Lakh Sixty Six Thousand only) as additional compensation. As compensation towards funeral expenses and loss of estate ``` MACA NO.2105 OF 2013 ``` respectively as per the directions of the Constitutional Bench in Pranay Sethi supra, petitioners are entitled to get `16,500/- each. `5,000/- stood awarded by the Tribunal as compensation under the respective heads when adjusted against, petitioners will get `11,500/- each as additional compensation. It is found from the impugned award that `25,000/- stood awarded by the Tribunal as compensation towards loss of love and affection, for which the petitioners are not entitled to. Therefore, `25,000/- is deducted from the sum arrived at as additional compensation. 12. In the above manner of calculation, `6,99,500/(Rupees Six Lakh Ninety Nine Thousand Five Hundred only) [(`5,35,500/- + `1,66,000/- + `11,500/- + `11,500/-) - (`25,000/-)] is arrived at as the total additional ``` MACA NO.2105 OF 2013 ``` ``` 12 ``` compensation payable, which 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 112 days, being the delay occurred in filing the appeal on hand . 13. Learned Counsel for the 3[rd] respondent has produced copy of judgment of a Single Bench in MACA No.1628/2013, which is an appeal preferred by them challenging the award of the Tribunal in the Original Petition on hand [O.P(M.V) No.425/2012]. It is contended by the learned counsel that in the judgment, the fixation by the Tribunal of the entire liability on the 2[nd] respondent for causing the motor accident in question was set aside by the learned Single Judge and liability was fastened on the driver of the offending bus as well as K.S.E.B and its employees, finding them as joint tort-feasors. But, the extent of liability for the respective tort-feasors was not ``` MACA NO.2105 OF 2013 ``` ``` 13 ``` fixed by the learned Single Judge. Rather, the learned Single Judge reserved the right of the insurer (appellant therein) to get the amount reimbursed to the extent of liability of K.S.E.B and its employees on it, proving the extent of liability of tort-feasors in appropriate proceedings in accordance with law. In the above circumstances, the 3[rd] respondent is directed to pay the additional compensation with interest within a period of two months from the date of receipt of a certified copy of this judgment, in accordance with the direction issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. ``` sd/- ``` MARY JOSEPH JUDGE JJ