N.T. Narayanankutty Menon and Others v. Mani M.K. and Kerala State Road Transport Corporation

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 21[ST] DAY OF MARCH 2023 / 30TH PHALGUNA, 1944 ``` ``` MACA NO. 1191 OF 2014 ``` ``` AGAINST THE AWARD DATED 31.01.2012 IN O.P(M.V) NO.492/2008 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1N.T.NARAYANANKUTTY MENON, S/O.KRISHNAN KUTTY MENON, AGED 69, CHEMBAKAMANGALATH HOUSE, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA, NOW RESIDING AT C/O VAKKACHAN, VAZHATHARA HOUSE, KURUPPUMPARAMBIL, UDAYAMPEROOR KARA, NADAKKAVU P.O, MANAKUNNAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT 2PRAMOD .N S/O.KRISHNAN KUTTY MENON, AGED 40, CHEMBAKAMANGALATH HOUSE, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA, NOW RESIDING AT C/O VAKKACHAN, VAZHATHARA HOUSE, KURUPPUMPARAMBIL, UDAYAMPEROOR KARA, NADAKKAVU P.O, MANAKUNNAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT 3PRAVEEN.N, S/O.KRISHNAN KUTTY MENON, AGED 38, CHEMBAKAMANGALATH HOUSE, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA, NOW RESIDING AT C/O VAKKACHAN, VAZHATHARA HOUSE, KURUPPUMPARAMBIL, UDAYAMPEROOR KARA, NADAKKAVU P.O, MANAKUNNAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT 4PRATHIBA N D/O.NARAYANAN KUTTY MENON, AGED 36 YEARS CHEMBAKAMANGALATH HOUSE, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA, NOW RESIDING AT C/O VAKKACHAN, VAZHATHARA HOUSE, KURUPPUMPARAMBIL, UDAYAMPEROOR KARA, NADAKKAVU P.O, MANAKUNNAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT BY ADVS.SRI.MATHEWS K.PHILIP SMT.T.MANASY ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1MANI M.K. S/O KURUVILA THOMAS, MANGALATH ADICHIRA HOUSE, NEAR DIVINE CENTRE, TELLAKAM KARA, PEROOR VILLAGE, KOTTAYAM DISTRICT 686 001 ``` ``` M.A.C.A.No.1191 of 2014 ``` **==> picture [8 x 9] intentionally omitted <==** ``` 2MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM 695 012 R2 BY SRI.ALEX ANTONY SEBASTIAN P.A. SRI.JOHN MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1191 of 2014 ``` ``` 3 ``` ## **`JUDGMENT`** ## **`Dated this the 21[st] day of March, 2023`** This appeal is originated from an award passed by Additional Motor Accident Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 31.01.2012 in O.P(M.V) No.492/2008. The appellants are the petitioners before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 and 2 in accordance with their status in the Original Petition. 3. The petitioners are the legal representatives of one Mrs.Vimala Menon, who died due to the serious injuries sustained by her in a motor accident occurred at about 9.15 a.m on 20.12.2007. She was walking through TripunithuraPoothotta public road towards North and when reached near Udaymperoor Madom, a KSRTC Bus bearing registration No. KL-15-4350 (TP 202) came from the same direction and knocked her down. She fell on the road and sustained serious injuries. She was rushed to RCM Hospital, Tripunithura for treatment, and ``` M.A.C.A.No.1191 of 2014 ``` ``` 4 ``` from there was referred to Medical Trust Hospital, Ernakulam. She succumbed to the fatal injuries sustained by her at 2.25 p.m. on the very date of the motor accident itself. Her legal representatives preferred the Original Petition seeking ₹6,00,000/- as compensation from the driver and the insurer of the offending vehicle jointly and severally. 4. The driver and the owner of the KSRTC Bus were arrayed as respondents 1 and 2 in the Original Petition. Both respondents entered appearance through counsel and filed written statement. The monthly income and the age of the deceased were disputed. Negligence alleged against the driver of the KSRTC Bus was also disputed. 5. On the side of the petitioners, Exts.A1 to A12 were marked. Exts.A1 to A9 are related to the criminal case registered with reference to the motor accident in question. Based on the evidence adduced by the petitioners, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the KSRTC Bus by its driver, stands arrayed as the 1[st] respondent in the Original Petition. 6. The Tribunal has also found that Mrs.Vimala Menon ``` M.A.C.A.No.1191 of 2014 ``` ``` 5 ``` died due to the injuries sustained in the motor accident and that the petitioners being her legal representatives are entitled to get compensation from the respondents. ₹1,53,400/- was arrived at as the compensation payable to the petitioners and the 2[nd] respondent was directed to deposit the amount with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation alongwith ₹5,000/- as proportionate costs after deducting the interim compensation already paid under Section 140 of the Motor Vehicles Act, 1988. Challenge is raised against the quantum of compensation, which according to the petitioners is inadequate. 7. It is contended by Smt.Manasy T, the learned counsel for the petitioners that though the petitioners raised an averment that the deceased was an Astrologer by profession and has ₹10,000/- as monthly earning, they failed to adduce evidence to substantiate. Therefore, the Tribunal had fixed ₹3,000/- as her monthly income on a notional basis. According to the learned counsel the motor accident was occurred in the year 2007 and therefore, a sum proportionate to the cost of living prevalent then ought to have been considered by the ``` M.A.C.A.No.1191 of 2014 ``` ``` 6 ``` Tribunal. The learned counsel placed reliance on **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.** [(2011) 13 SCC 236] while canvassing for fixation of a higher amount as the monthly income. 8. The learned counsel pointed out that the Tribunal is highly unjustified in awarding only ₹10,000/- as compensation towards loss of love and affection. According to her, the Tribunal overlooked the direction of the Constitution Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi** [2017 (4) KLT 662 (SC)] while declining to grant compensation towards loss of estate and loss of consortium and confining the grant of compensation to ₹5,000/- towards funeral expenses. 9. The learned counsel for the 2[nd] respondent blamed the Tribunal for its failure to appreciate the evidence on record in its proper perspective. According to him, if evidence was properly appreciated, a finding on negligence of the deceased also in causing the motor accident would have arrived. 10. The Tribunal is unjustified in fixing ₹3,000/- as the monthly income of the deceased for calculating compensation in ``` M.A.C.A.No.1191 of 2014 ``` ``` 7 ``` the case of death of victim of a motor accident occurred in the year 2007. ₹6,000/- appears to this Court a reasonable sum and is fixed as the monthly income of the deceased. The date of birth of the deceased is proved by Ext.A10 as 03.01.1948. Therefore, the deceased was aged 59 years at the relevant time of her death. 10% is added to the monthly income of the deceased in consideration of loss of future prospects on account of her premature death, and thus ₹6,600/- (₹6,000/- + 10% of ₹6,000/-) is arrived at. Tribunal adopted 5 as the multiplier which is incorrect. In view of **Sarla Verma & Ors. v. Delhi Transport Corporation & Anr.** [2010 (2) KLT 802 (SC)], 9 is the multiplier applicable to people of the age group 56-60 years and that is adopted. The deceased being survived by 4 family members, 1/4[th] is liable to be deducted in consideration of personal expenditure which the deceased would suffer, had she been alive. Compensation for loss of dependency when recalculated on the basis of the above modified factors, ₹5,34,600/- (₹6,600/- x 12 x 9 x ¾) is arrived at. ₹1,20,000/stands awarded by the Tribunal when adjusted against, the petitioners will get ₹4,14,600/- as additional compensation. ``` M.A.C.A.No.1191 of 2014 ``` ``` 8 ``` 11. As directed in **Pranay Sethi** supra the petitioners are entitled to get ₹16,500/- each under the heads loss of estate and funeral expenses and ₹44,000/- per head towards loss of consortium. ₹5,000/- was awarded by the Tribunal towards funeral expenses and therefore the petitioners will get ₹11,500/- as additional compensation. Since compensation towards loss of estate was denied by the Tribunal and the petitioners are entitled to get ₹16,500/-, this Court awards so. Towards loss of consortium, all the four petitioners are entitled to get ₹44,000/each and therefore ₹1,76,000/- (₹44,000/- x 4) is payable in total. 12. It is settled that the petitioners are not entitled to get compensation under the heads loss of love and affection as well as pain and suffering. Therefore, ₹10,000/- and ₹5,000/- stand awarded by the Tribunal as compensation under the respective heads are deducted from the total sum now arrived at as additional compensation. 13. In the above manner of re-assessment, petitioners will get ₹6,03,600/- (Rupees Six lakhs three thousand six hundred only) [(₹4,14,600/-- + ₹11,500/- + ₹16,500/- + ``` M.A.C.A.No.1191 of 2014 ``` ``` 9 ``` ₹1,76,000/-) – (₹10,000/- + ₹5,000/-)] as additional compensation and it will carry interest at the rate of 7.5% per annum. 14. The learned counsel for the 2[nd] respondent has raised a contention that the deceased had also contributed towards the motor accident by her negligence. According to him, the description of the scene of occurrence in the scene mahazar marked in evidence as Ext.A4 if properly read by the Tribunal, it would have arrived at a finding that the deceased was also responsible for causing the motor accident. This Court is declined to delve on the contention, for want of a challenge raised by the 2[nd] respondent against the finding of the Tribunal on negligence in the impugned award. 15. The Tribunal has fixed the liability on the 2[nd] respondent, being the owner of the offending vehicle involved in the accident. This Court finds no reason to reverse it and therefore, fixation of liability on the 2[nd] respondent is maintained. 2[nd] respondent is directed to pay the additional compensation now arrived at with interest at the rate of 7.5% per annum from the date on which the Original Petition was filed ``` M.A.C.A.No.1191 of 2014 ``` ``` 10 ``` till date of realisation of the amount excluding 696 days, being the delay occurred in filing the appeal on hand, in favour of petitioners within two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in Circular No.3/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** ``` NAB ``` ``` M.A.C.A.No.1191 of 2014 ``` ``` 11 ```