N.JOUSEPH & others v. K.P.BALAKRISHNAN & ORS

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 8TH DAY OF FEBRUARY 2016/19TH MAGHA, 1937 MACA.No. 415 of 2006 ( ) ------------------------AGAINST THE AWARD IN OP(MV) NO.756/1999 OF THE MACT, IRINJALAKUDA DATED 24-05-2005 ## APPELLANTS/PETITIONERS: ---------------------------------------- 1. N.J.OUSEPH, S/O NELLIKKAMANNIL JOSEPH, AMBANOLY, P.O.MURIKKINGAL. 2. THRESSIAMMA, W/O.OUSEPH, NELLIKKAMANNIL, AMBANOLY P.O., MURIKKINGAL. 3. N.O.JINCY, D/O.OUSEPH, NELLIKKAMANNIL, AMBANOLY P.O., MURIKKINGAL. 4. N.O.GEO, S/O.OUSEPH, NELLIKKAMANNIL, AMBANOLY P.O., MURIKKINGAL. 5. N.O.JIMSON, S/O.OUSEPH, NELLIKKAMANNIL, AMBANOLY P.O., MURIKKINGAL. BY ADVS.SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.SABU SREEDARAN SRI.VIMAL KUMAR.A.V. SRI.A.G.GIRISH KUMAR. RESPONDENT(S)/RESPONDENTS: ------------------------------------------------- 1. K.P.BALAKRISHNAN, S/O CHEKKOOTTY, CHERUVATH HOUSE, P.O.MEPPAYUR, KOZHIKODE DISTRICT. 2. MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION THIRUVANANTHAPURAM. 3. K.R.SUNIL, S/O.RAMACHANDRAN, KUNDUKANDATHIL HOUSE, AVINISSERY, OLLUR. 4. THE MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, CITY HEIGHTS BUILDING, SOUTH CHALAKUDY. R2 BY ADV. SRI.GOPIKRISHNAN NAMBIAR, SC, KSRTC R2 BY ADV. SRI.JOY GEORGE, SC, K.S.R.T.C. R2 BY ADV. SRI.P.C.CHACKO, SC R4 BY ADV. SRI.P.JAYASANKAR R4 BY ADV. SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: bka/- ## **P.R. RAMACHANDRA MENON, & ANIL K. NARENDRAN, JJ.** -------------------------------------------------- M.A.C.A. No. 415 of 2006 -------------------------------------------------Dated this the 8[th] day of February, 2016 ## **J U D G M E N T** ## P.R. Ramachandra Menon, J. Inadequacy of compensation awarded by the Tribunal in respect of the sad demise of the son of the appellants 1 & 2 and the sibling of other appellants in a motor vehicle accident is the subject matter of challenge in this appeal. 2. The deceased Gimmy was driving a jeep, bearing Reg.No.KL-7/F 3938 on 21.11.1998; and when the said jeep reached the place of occurrence, a KSRTC bus, bearing Reg.No.KL-15/3236, driven by the 1[st] respondent and owned by the 2[nd] respondent dashed against the jeep causing fatal injuries to the driver of the jeep, ultimately, resulting in his death, which was sought to be compensated by the legal representatives of the deceased as aforesaid, by filing a claim petition before the Tribunal. M.A.C.A. No. 415 of 2006 **==> picture [20 x 8] intentionally omitted <==** Another person, who was travelling in the jeep, also bid farewell to the world because of the serious injuries. The accident caused injuries to some others as well; which led to separate claim petitions. All the claim petitions were tried together, leading to the common award dated 24.05.2005. 3. It is seen that the jeep was having a valid policy, copy of which was produced as Ext.B1, whereas the KSRTC did not have any valid insurance coverage. The appellants/claimants produced Exts.A1 to A23 and examined PWs 1 to 4. Nobody was examined from the part of the respondents and no documentary evidence was also adduced. Based on the pleadings and materials on record, the Tribunal held that the accident was only because of the negligence on the part of the driver of the bus and fixed the liability accordingly. The Tribunal awarded a total compensation of ₹1,40,250/-under different heads, which was directed to be satisfied with interest @ 6% per annum from the date of filing the M.A.C.A. No. 415 of 2006 **==> picture [20 x 8] intentionally omitted <==** petition. This is sought to be enhanced by way of appeal. 4. Heard the learned counsel for the appellants and the learned Standing Counsel for the KSRTC. 5. The grievance of the appellants is that, in spite of the fact that the deceased was working as a driver, drawing a monthly salary of ₹3,600/-, and despite producing the copy of a valid driving licence as Ext.A10, the Tribunal simply chose to reckon only 1,500/- as the₹ notional monthly income of the deceased for fixing compensation. The learned Standing Counsel for the KSRTC submits that no positive evidence was adduced before the Tribunal as to the employment or income and that the amounts awarded by the Tribunal are quite reasonable. 6. After hearing both the sides, we find that the 2[nd] appellant herein was examined before the Tribunal as PW2, who has spoken about the relevant facts and figures, which has to be read in the light of the depositions of other witnesses as well, as to the M.A.C.A. No. 415 of 2006 ..4.. occurrence and such other facts in relation to the accident. It also remains a fact that the deceased was actually driving the jeep and it was during the course of such driving that the KSRTC bus dashed against the jeep. The finding rendered by the Tribunal that the accident was solely because of the negligence on the part of the driver of the KSRTC bus, has become final in so far as the said finding has not been subjected to challenge either by the driver of the bus or the KSRTC. The question is whether any material is available as to the occupation and income of the deceased. There is no dispute regarding the fact that the deceased was none other than the driver of the jeep, which was dashed against by the KSRTC bus, and he was holding Ext.A10 driving licence. Considering the date of the accident and the engagement of the deceased as driver of the jeep, when the accident was occurred, this Court finds that the income fixed by the Tribunal as 1,500/- on notional basis is on the lower₹ side. We find it appropriate to have the same refixed as M.A.C.A. No. 415 of 2006 ..5.. ₹3,000/- per month for recalculating the compensation. 7. The amount awarded by the Tribunal under different heads, as discussed in paragraph 16 of the award, are given below; Funeral expenses ₹2,000/Loss of estate ₹2,500/Transport to hospital expenses ₹750/Loss of love and affection ₹10,000/Pain and suffering ₹5,000/Loss of dependency ₹1,20,000/- Total ₹1,40,250/- It is seen that the deceased was aged 22 years at the time of the accident and the multiplier adopted by the Tribunal was based on the age of the parents, reckoning the same as 10. It is settled law that proper multiplier has to be fixed on the age of the deceased and not on the parents/claimants. Since the deceased was 22 years, the proper multiplier is '18' and we find it appropriate to reckon the same. The Tribunal has found that the deceased being a bachelor, dependency could be claimed only by the parents. In the said circumstances, only 50% could be reckoned as contribution to the family to work M.A.C.A. No. 415 of 2006 **==> picture [20 x 8] intentionally omitted <==** out loss of dependency. Thus, the amount payable under this head comes to 3,24,000/- [3000 x 12 x 50/100 x 18].₹ After deducting the amount awarded by the Tribunal under this head, the balance comes to **₹2,04,000/-** . The Tribunal has awarded only a sum of 2,000/- towards₹ funeral expenses. We find it appropriate to award a further sum of **₹8,000/-** under this head, considering the date of accident. Similarly, enhancement is necessary towards loss of estate and we award a further sum of **₹2,500/-** under this head as well. 8. Only a meagre sum of 10,000/- was awarded₹ by the Tribunal towards loss of love and affection. The Apex Court, as per its decision in **Rajesh** v. **Rajbir Singh** [2013 (3) KLT 89 SC], has stated that a sum of 1,00,000/-₹ is payable under this head. But, the accident was in the year 2007. The scope of the said decision has been considered by another Division Bench of this Court in **Valsamma** v. **Biju Jose** [2014 (1) KLT 10]. It has been observed that the amount of compensation payable under M.A.C.A. No. 415 of 2006 **==> picture [20 x 8] intentionally omitted <==** this head has to be with reference to the age of the deceased as well as the age of the claimants. Considering the totality of the facts and circumstances, we find it appropriate to award a sum of 50,000/- under₹ this head, the accident having occurred on 21.11.1998. Thus, after deducting the amount of 10,000/- awarded by₹ the Tribunal, the balance payable comes to **₹40,000/-** . 9. The Tribunal has awarded a sum of 5,000/-₹ towards pain and suffering. Even though the death of the deceased was on the same day, we find that excruciating pain would have been undergone by the deceased before he had fallen unconscious. We find it appropriate to award a further sum of **₹5,000/-** under this head. Thus, the total balance compensation payable comes to **₹2,59,500/-** (Rupees two lakhs fifty nine thousand and five hundred only). 10. It has to be noted that the Tribunal has awarded only 6% interest per annum. At the relevant time, the interest payable as per the verdicts passed by M.A.C.A. No. 415 of 2006 ..8.. the Apex Court was 7.5% per annum. Subsequently, the rate of interest payable has been declared as 9%. Striking a balance, we find it appropriate to award interest @ 8% per annum on the additional compensation, which has to be satisfied from the date of the petition. Since there is no insurance policy, the liability has to be undertaken by the 2[nd] respondent/KSRTC. We direct the KSRTC to deposit the due amount at the earliest, at any rate, within a period of two months from the date of receipt of a copy of this judgment. The appeal is allowed accordingly. Sd/- **P.R. RAMACHANDRA MENON JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** bka/- //True copy// PA to Judge