Podiyan and Others v. The Managing Director, Kerala State Road Transport Corporation (KSRTC) and Vijayan S/o Thevan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945** ## **MACA NO. 1622 OF 2015** **AGAINST THE ORDER/JUDGMENT DATED 24.03.2014 IN OPMV NO.436 OF 2011** **OF I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT/PETITIONERS:** - **1 PODIYAN AGED 49 YEARS** - **S/O RAGHAVAN, OOPPANVILA PADEETTATHIL, VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY.** - **2 AMBIKA AGED 45 YEARS W/O PODIYAN, -DO-.** - **3 VINOD AGED 29 YEARS S/O PODIYAN, -DO-** - **4 VINEETH AGED 26 YEARS S/O PODIYAN, -DO-.** **BY ADVS.** **SRI.K.SUBASH CHANDRA BOSE SRI.V.PREMCHAND** ## **RESPONDENTS/RESPONDENTS:** - **1 THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION, (KSRTC) FORT, THIRUVANANTHAPURAM-695001.** - **2 VIJAYAN S/O THEVAN, EDAYAD, THEKKATHIL, S.N.PURAM, PAVITHRESWARAM, KOLLAM (DRIVER)691013.** **BY ADVS.** **SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. ALEX ANTONY SEBASTIAN P.A.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 M.A.C.A No. 1622 of 2015 ## **JUDGMENT** The appellants were the petitioners in OP(MV)No.436/2011 on the files of the First Additional Motor Accidents Claims Tribunal, Kollam. The said claim petition was submitted by them seeking compensation for the death of one Vineesh, due to the injuries sustained in a motor accident that occurred on 22.11.2010. The deceased was the son of the appellants 1 and 2 and the brother of the appellants 3 and 4. 2. The accident occurred, when the motorcycle ridden by the deceased along with a pillion rider, was hit by a KSRTC bus driven by the second respondent in a rash and negligent manner. The deceased was aged 19 years at the time of the accident and according to the appellants, he was a mason with a monthly income of Rs.10,000/-. The claim petition was submitted in such circumstances. 3. The first and second respondents, the owner and driver of the bus, filed a written statement disputing the negligence on the part of the second respondent in driving the bus. According to them, the accident occurred due to the negligence of the deceased himself. They also disputed the quantum of compensation. 3 M.A.C.A No. 1622 of 2015 4. To substantiate the contentions, the appellants have examined PW1 and PW2 and as documentary evidence, Exts.A1 to A9 were marked. After the trial, the Tribunal found that, the accident occurred due to the negligence on the part of the second respondent and being the employer of the second respondent and registered owner of the said bus, the first respondent was also jointly and severally held liable to pay the compensation along with second respondent. The quantum of compensation was fixed as Rs.5,39,000/- and the said amount was directed to be deposited with interest at the rate of 7.5% per annum from the date of petition till realisation with proportionate costs. This appeal is submitted by the appellants in such circumstances, being dissatisfied with the quantum of compensation. 5. Heard, Adv.Sri.V.Premchand, the learned counsel appearing for the appellants and Adv.Sri.Alex Antony Sebastian, the learned counsel appearing for the first respondent. 6. The learned counsel for the appellants would contend that, the amount awarded by the Tribunal under various heads are grossly inadequate and therefore requires reconsideration. 7. The learned counsel appearing for the respondent on the other hand would contend that, this is a case in which the 4 M.A.C.A No. 1622 of 2015 contributory negligence should have been attributed upon the deceased and according to him, he was riding the motorcycle without any valid driving license. Besides the same, it was also contended that, the scene mahazar also would show that the motorcycle ridden by the deceased was on the wrong side. 8. As far as the contentions raised by the first respondent with respect to the contributory negligence of the deceased are concerned, I am of the view that, the same cannot be considered in this appeal. The Tribunal arrived at a categorical finding after appreciating the materials placed on the record that, as the respondents did not adduce any contra evidence, the second respondent was to be held responsible for the accident. The said finding was not challenged by the respondents by filing an appeal. This is an appeal filed by the claimants seeking enhancement of compensation and since there is no challenge as to the negligence of the second respondent, the contentions raised by the first respondent in this regard cannot be entertained. 9. The next aspect relates to the quantum of compensation. As observed above, the appellants claimed that the deceased was aged 19 years, and was working as a mason with a monthly income of Rs.10,000/-. However, the Tribunal took the 5 M.A.C.A No. 1622 of 2015 monthly income of Rs.4500/- which appears to be grossly inadequate, considering the fact that, the accident occurred in the year 2010. Of course it is true that, there is no evidence to substantiate the monthly income of the deceased at the relevant time, apart from the evidence of PW1. However, when the method of computation of monthly income evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa V.** **Manager, Royal Sundaram Alliance Insurance Co. Ltd** [(2011) 13 SCC 236] and **Syed Sadiq V. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] is adopted, the monthly income of any employee, can be taken as Rs.7,500/- for the year 2010. (by fixing the basic monthly income as Rs.4,500/- for the year 2004 and to determine the monthly income for the subsequent years, an addition of Rs.500/- per year has to be made). In the absence of any better evidence, the said monthly income can be accepted in this case. Since the deceased was aged 19 years at the time of the accident, an addition of 40% of the monthly income is to be made towards future prospectus. Similarly, in the light of **Sarla Varma & Ors V.Delhi Transport Corporation** [(2009) 6 SCC 121] and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], the 6 M.A.C.A No. 1622 of 2015 multiplier applicable is 18. Towards personal expenses, a deduction of 50% has to be made, considering the fact that the deceased died as a bachelor. Thus, while reassessing the compensation with the above revised criteria, the compensation for loss of dependency would come to Rs.11,34,000/- [(7,500+ 40%) X 12 X 18X ½]. The amount already awarded by the Tribunal is Rs.4,86,000/- and thus the additional compensation under the said head, would come to Rs.6,48,000/- 10. The Tribunal did not award any compensation towards loss of estate and in the light of the **Pranay Sethi** (supra), Rs.15,000/- is awarded. No amount is also seen awarded towards transportation expenses. Hence, a sum of Rs.1,000/- is awarded under the said head. 11. The Tribunal did not award any compensation for loss of consortium as well. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram** [(2018) 18 SCC 130] **and United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [ 2020 (3) KHC 760], the first and second appellants, being the parents of the deceased, were entitled to compensation under this head at the rate of Rs.40,000/- each, thereby making a total sum of Rs.80,000/-. 7 ## M.A.C.A No. 1622 of 2015 However, the Tribunal awarded an amount of Rs.25,000/- towards loss of love and affection. In **Satwinder Kaur** (supra), the Honourable Supreme Court categorically observed that, 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 against the additional compensation determined for loss of consortium. Thus the additional compensation under this head would come to Rs.55,000/-. 12. At this juncture, the learned counsel for the first respondent would point out that the Tribunal granted an amount of Rs.25,000/- towards funeral expenses, whereas in the light of **Pranay Sethi** (supra), the actual amount payable was Rs.15,000/-. The said contention has to be accepted as it is the settled position of law and hence the excess amount of Rs.10,000/- is ordered to be deducted. Thus, the total additional compensation is determined as Rs.7,09,000/- [(6,48,000 + 15,000 + 1,000 + 55,000) - 10,000]. In the result, this appeal is allowed, the award dated 24.03.2014 passed by the First Additional Motor Accidents Claims Tribunal, Kollam in OP(MV)No.436/2014, is hereby modified by 8 M.A.C.A No. 1622 of 2015 granting an additional compensation of Rs.7,09,000/- (Rupees seven lakh nine thousand only) and the said amount shall be deposited by the first respondent with interest at the rate as ordered by the Tribunal, with proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. It is further ordered that, the claimants shall furnish the details of PAN card, Aadhar Card and Bank details to enable the first respondent to make the deposit as ordered above within a period of two months from the receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the 1[st] respondent to deposit the said amount before the Tribunal. Sd/- ## **ZIYAD RAHMAN A.A** **JUDGE** rpk