PENNAMMA, LIBY, GIBY v THE MANAGING DIRECTOR, K.S.R.T.C. and MANIKKUTTAN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944 MACA NO. 2560 OF 2012** **AGAINST THE AWARD DATED 26.05.2012 IN O.P.(MV) No.1562/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **MUVATTUPUZHA** ## **APPELLANTS/PETITIONERS:** 1 PENNAMMA, AGED 53 YEARS, W/O.LATE AUGUSTHY, KAIKKANDOTHIL HOUSE, MALAYINKEEZHU, KOTHAMANGALAM.P.O. 2 LIBY, AGED 32 YEARS, D/O.LATE AUGUSTHY, KAIKKANDOTHIL HOUSE, MALAYINKEEZHU, KOTHAMANGALAM.P.O. 3 GIBY, AGED 30 YEARS, S/O.LATE AUGUSTHY, KAIKKANDOTHIL HOUSE, MALAYINKEEZHU, KOTHAMANGALAM.P.O. BY ADV. SRI.SOORAJ T.ELENJICKAL ## **RESPONDENTS/RESPONDENTS:** 1 MANIKKUTTAN, S/O.ANJATHI, KUNNAPPILLIL HOUSE, MUTHANKUZHY, PINDIMANA.P.O, KOTHAMANGALAM-686 698. 2 THE MANAGING DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM-695 001. BY ADV. SRI.ALEX ANTONY SEBASTIAN P.A. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.2560 of 2012** 2 ## **JUDGMENT** This is an appeal filed under Section 173 of the Motor Vehicles Act, challenging award dated 26.05.2012 in O.P.(M.V) No.1562/2005 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, at the instance of the petitioners. The respondents before the Tribunal are the respondents herein also. 2. Heard the learned counsel for the appellants as well as the learned Standing Counsel appearing for the KSRTC. 3. Summary of the case put up by the appellant before the Tribunal is as under: The claimants, who are the wife and children of deceased Augusthy, raised contention before the Tribunal that while Augusthy was riding on his bicycle from west to east through Kothamangalam-Perumannoor public road at 8:00 p.m. on 12.04.2005, the KSRTC bus driven by the 1[st] respondent came in ## **M.A.C.A No.2560 of 2012** 3 opposite direction in a rash and negligent manner hit down the cyclist and, consequently, he died. On the above facts, an application under Section 166 of the Motor Vehicles Act was preferred by the legal heirs before the M.A.C.T, Muvattupuzha claiming compensation to the tune of Rs.6,50,000/- from respondents 1 and 2. 4. In this case, even though no cross objection or appeal filed at the instance of the KSRTC challenging the question of negligence found against the 2[nd] respondent, at the time of argument, the learned Standing Counsel challenged the question of negligence also. In this matter, soon after the occurrence, Kothamangalam police registered FIR and on completion of investigation laid charge against the 2[nd] respondent alleging commission of offences under Section 279 and 304A of IPC. The appellants relied on Ext.A4 police charge to prove negligence attributed **M.A.C.A No.2560 of 2012** 4 against the 2[nd] respondent, where the 1[st] respondent, the driver himself got examined as RW1 and he had denied negligence alleged against him. According to him, while he was driving the vehicle, he found a person lying on the side of the road along with the bicycle and he stopped the vehicle since the vehicle could not be moved further because of this. During cross-examination, he admitted that the bus could be driven through the road at an average speed of 40Km alone and the accident occurred after the vehicle had run 5Km. In this matter, RW2 a traveller on the bus also was examined. But he did not support either the case of the claimants or the case of the respondents and he stated that he did not witness the occurrence and he had given evidence that he found a person along with the bicycle lying on the side of the road as deposed by RW1. 5. That apart Ext.B1 judgment of **M.A.C.A No.2560 of 2012** 5 acquittal dated 29.09.2008 also was produced before the Tribunal to assert the point that during trial before the criminal court, the driver was acquitted. Going by Ext.B1, it could be noticed that for want of evidence, the driver was acquitted. 6. In cases involving motor accidents, when the police files final report attributing negligence against the driver acquittal of the accused/driver in a criminal case alone is not sufficient to hold that the negligence stands disproved. In this case, apart from police charge, an interested witness, who is none other than the driver of the bus examined as RW1 also given evidence that he saw a man found lying on the road along with the bicycle and there was bleeding from his head, though he denied negligence on his part. Therefore, acquitting of RW1 in this criminal case for want of proving the offences alleged against him beyond reasonable doubt is not a reason to ## **M.A.C.A No.2560 of 2012** 6 disbelieve the police charge in toto. In such a case, I am not inclined to revisit the finding of negligence entered into by the Tribunal, acting on the police charge. Therefore, this contention is found against the KSRTC. 7. Coming to quantum, the learned counsel for the appellant submitted that the Tribunal accepted Rs.2,000/- as the monthly income of Augusthy though it had been claimed specifically that he was earning Rs.4,000/per month as a mason under different employees. Since the accident is of the year 2005, Rs.4,000/- following the ratio in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ : **(2011) 13 SCC 236,** along with 25% addition following the ratio in _**National Insurance Company Ltd. v. Pranay Sethi**_ **: (2017) 16 SCC 680,** is liable to be granted in this case by applying a **M.A.C.A No.2560 of 2012** **==> picture [7 x 9] intentionally omitted <==** multiplier of '13' and deduction of[1] /3[.] Therefore, the 'loss of dependency' is recalculated as follows: 4,000+25% = 5000x12x13x[2] /3 = 5,20,000/Out of which Rs.3,12,000/- was granted by the Tribunal **.** Therefore, **Rs.2,08,000/-** is granted towards the 'loss of dependency income'. 8. In this case, the Tribunal granted Rs.5,000/- under the head 'Funeral Expenses' and Rs.2,500/- under the head 'loss of estate'. Following the ratio in _**Pranay Sethi's**_ case (supra), the same stand increased by **Rs.10,000/-** and **Rs.12,500/-** more. Towards, 'loss of consortium', the Tribunal granted only Rs.15,000/-. Following the ratio in _**Pranay Sethi's**_ case (supra), appellants together are entitled to get Rs.1,20,000/towards, 'loss of consortium' @ Rs.40,000/- each. Therefore, **Rs.1,05,000/-** more is granted ## **M.A.C.A No.2560 of 2012** **==> picture [7 x 9] intentionally omitted <==** under the head 'loss of consortium'. 9. It is noticed further that the Tribunal granted Rs.5,000/- under the head 'pain and sufferings' and Rs.20,000/- under the head 'loss of love and affection'. Following the ratio in _**United India Insurance**_ _**Co. Ltd v. Satinder Kaur**_ **@ Satwinder Kaur and** **others : 2020 (3) KHC 760,** Rs.25,000/- granted under the heads 'pain and sufferings' and 'love and affection', is not liable to be granted. 10. In the result, this appeal is allowed. It is ordered that the appellant is entitled to get Rs.6,70,000/- as total compensation, out of which Rs.3,59,500/- was granted by the Tribunal and the balance amount of **Rs.3,10,500/-** (Rupees Three Lakh Ten Thousand and Five Hundred Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the 2[nd] ## **M.A.C.A No.2560 of 2012** **==> picture [7 x 9] intentionally omitted <==** respondent from the date of petition till the date of deposit or realisation. 11. The appellants valued the claim at Rs.4,00,000/-. In view of grant of Rs.2,70,000/- in excess of the claim, the appellants are bound to deposit Rs.2,700/- as additional court fee. The 2[nd] respondent is directed to deposit Rs.2,700/- as additional court fee by a separate cheque in favour of M.A.C.T. The 2[nd] respondent is directed to deposit the same in the name of the appellants in the proportion fixed by the Tribunal within two months. On deposit, the appellants are entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww