Preeja V.K and others v. Muraleedharan and Kerala State Road Transport Corporation

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944 MACA NO. 777 OF 2014 ``` ``` AGAINST THE AWARD DATED 18.01.2012 IN O.P(MV) NO.204/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA ``` ## **`APPELLANTS/PETITIONERS IN O.P.M.V NO.204/2007:`** ``` 1PREEJA V.K, AGED 38 YEARS, W/O. LATE ANILKUMAR, PUTHENPURAKKAL HOUSE, AMARAKUNI P.O., PADICHIRA VILLAGE, SULTHAN BATHERI TALUK, WAYANAD DISTRICT. ``` ``` 2ARUN DEV, AGED 9 YEARS( MINOR) S/O. ANILKUMAR, PUTHENPURAKKAL HOUSE, AMARAKUNI P.O., PADICHIRA VILLAGE, SULTHAN BATHERI TALUK, WAYANAD DISTRICT, REP.BY HIS MOTHER AND NATURAL GUARDIAN PREEJA V.K., AGED 38 YEARS, W/O. LATE ANILKUMAR, PUTHENPURAKKAL HOUSE, AMARAKUNI P.O., PADICHIRA VILLAGE, SULTHAN BATHERI TALUK, WAYANAD DISTRICT. ``` ``` 3P.K.PAVITHRAN, AGED 72 YEARS, S/O. KUMARAN, PUTHENPURAKKAL HOUSE, AMARAKUNI P.O., PADICHIRA VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DISTRICT. ``` ``` 4SUMATHI V.K. AGED 66 YEARS, W/O. P.K.PAVITHRAN, PUTHENPURAKKAL HOUSE, AMARAKUNI P.O., PADICHIRA VILLAGE, SULTHAN BATHERI TALUK, WAYANAD DISTRICT. ``` ``` 5AKIL DEV AGED 7 YEARS( MINOR) S/O. ANILKUMAR, PUTHENPURAKKAL HOUSE, AMARAKUNI P.O., PADICHIRA VILLAGE, SULTHAN BATHERI TALUK, WAYANAD DISTRICT, REP.BY HIS MOTHER AND NATURAL GUARDIAN PREEJA V.K., AGED 38 YEARS, W/O. LATE ANILKUMAR, PUTHENPURAKKAL HOUSE, AMARAKUNI P.O., PADICHIRA VILLAGE, SULTHAN BATHERI TALUK, WAYANAD DISTRICT. ``` ``` M.A.C.A.No.777 of 2014 ``` ``` 2 ``` ``` BY ADVS. SRI.ABRAHAM P.GEORGE SMT.M.SANTHY ``` ## **`RESPONDENTS/RESPONDENTS IN O.P.M.V NO.204/2007:`** ``` 1MURALEEDHARAN, AGED ABOUT 45 YEARS, (FATHER'S NAME NOT KNOWN TO THE PETITIONERS), DRIVER, KSRTC, SULTHANBATHERI DEPOT, SULTHANBATHERI P.O., WAYANAD DISTRICT-670 221. ``` ``` 2THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM-695 001. ``` ``` BY ADV. ALEX ANTONY SEBASTIAN P.A. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.777 of 2014 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 15[th] day of March, 2023** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Kalpetta (for short ‘the Tribunal’) on 18.01.2012 in O.P(M.V) No.204/2007. 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. Petitioners are the legal representatives of one Mr.Anilkumar who died due to the injuries sustained in a motor accident occurred at about 7.30 pm on 20.10.2006. A KSRTC Bus bearing Registration No.KL-15-3606 dashed against a Motorcycle bearing ``` M.A.C.A.No.777 of 2014 ``` ``` 4 ``` Registration No.KL-12-C-663 ridden by him, at 3[rd] mile in Bathery-Pulpally road. The serious injuries sustained by him in the motor accident resulted in his death. Contending that the driver of the KSRTC bus has caused the motor accident by his rash and negligent driving and claiming a sum of ₹30,00,000/as compensation, the legal representatives of the deceased filed the above Original Petition before the Tribunal. 4. The driver and the owner of the KSRTC bus were arrayed in the Original Petition as respondents 1 and 2. Notice was served on both respondents and they entered appearance before the Tribunal. A joint written statement was filed by them denying negligence on the part of the 1[st] respondent. Contentions were also raised that Mr.Anilkumar was riding the Motorcycle in a rash and negligent manner ``` M.A.C.A.No.777 of 2014 ``` ``` 5 ``` and thereby caused the motor accident, that the owner and the insurer of the Motorcycle were necessary parties to the Original Petition and that due to their non-impleadment in the Original Petition, it is bad for non-joinder of necessary parties. The amount claimed as compensation is also disputed for being exorbitant in nature and devoid of any basis. 5. Exts.A1 to A3, A4 series and A5 to A7 were marked in evidence on the side of the petitioner. The respondents did not adduce any evidence. On appreciation of the evidence adduced by the petitioners as above, a finding was arrived at by the Tribunal that the motor accident in question was occurred due to the rash and negligent driving of the KSRTC Bus by the 1[st] respondent. It was found furthermore on the strength of the documentary evidence on record that Mr.Anilkumar died on account ``` M.A.C.A.No.777 of 2014 ``` ``` 6 ``` of the fatal injuries sustained in the motor accident and therefore, the petitioners being the legal representatives are entitled to get compensation. A sum of ₹14,03,000/- was arrived at as the total compensation payable. The Tribunal directed the 2[nd] respondent, who is none other than the owner of the Bus to deposit the above sum with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date on which deposit is made. The Tribunal also directed the 2[nd] respondent to deposit the above sum within a period of 30 days. It also permitted the petitioners to realise proportionate cost from the respondents. Raising challenge against the inadequacy of the compensation, the appeal on hand is filed. 6. As per the claims made in the Original Petition, Mr.Anilkumar was working as an Excise ``` 7 ``` ## **`M.A.C.A.No.777 of 2014`** Guard in the Office of the Excise Inspector, Sulthan Bathery Range at the relevant time of his death. A document was produced and marked in evidence as Ext.A6 which is nothing but a certificate issued by the employer of Mr.Anilkumar certifying ₹6,757/- as the net salary received by him at the relevant time. 7. The attention of this court was drawn by the learned counsel to the Provisional Seniority List of Excise Guards of Wayanad Division for the period from 01.04.1997 to 31.12.2003 marked in evidence as Ext.A7 to contend that the name of Mr.Anilkumar was included therein as Serial No.8. It is contended by the learned counsel on the basis that the Tribunal ought to have considered the salary that would be obtained by Mr.Anilkumar on getting promotion as Preventive Officer. ``` M.A.C.A.No.777 of 2014 ``` ``` 8 ``` 8. The learned counsel furthermore contended that the Tribunal failed to award compensation under the conventional heads in accordance with the directions of the Constitution Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)]** . According to her, petitioners being legal representatives of the deceased are entitled to get ₹16,500/- each as compensation towards loss of estate and funeral expenses and ₹44,000/- per head as compensation towards loss of consortium. According to the learned counsel, the deceased was survived by 5 family members including his wife, two minor children and age old parents. According to her, ₹10,000/- stood awarded as compensation towards loss of consortium in favour of the wife of the deceased and ₹5,000/- and ₹10,000/- respectively as ``` 9 ``` ## **`M.A.C.A.No.777 of 2014`** compensation towards funeral expenses and loss of estate. 9. The learned counsel for the 2[nd] respondent also urged that the multiplier has been wrongly adopted by the Tribunal as ‘17’ instead of '16', the correct one. It is also pointed out that petitioners are not entitled to get ₹10,000/- stood awarded by the Tribunal as compensation towards loss of love and affection and ₹5,000/-, towards pain and sufferings. She canvassed for deduction of ₹15,000/- stood awarded as compensation under the above heads from the total additional compensation arrived at as payable. The learned counsel for the 2[nd] respondent urged to maintain the compensation stood awarded. 10. The net salary of Mr.Anilkumar was certified in Ext.A6, as ₹6,757/-. The date of birth of the deceased was also shown in Ext.A7 as 04.03.1974. ``` M.A.C.A.No.777 of 2014 ``` ``` 10 ``` Therefore the age of Mr.Anilkumar at the relevant time of his death can be taken as 32 years. 11. True that the name of Mr.Anilkumar is incorporated in Ext.A7 as Serial No.8. But there is uncertainty in the matter of getting promotion due to several reasons. Therefore, the Tribunal cannot be said to have erred in not fixing the monthly income in tune with that payable to the post of a Preventive Officer, to which the deceased may be promoted later. 12. In **Pranay Sethi** supra, the Apex Court has directed to consider 50% addition to the salary of a person, who at the relevant time of his death was aged below 40 years and was having permanent employment with fixed salary, in consideration of his loss of future prospects on account of his untimely death. At the relevant time of his death Mr.Anilkumar was aged 32 years, permanently employed and also ``` M.A.C.A.No.777 of 2014 ``` ``` 11 ``` has a fixed salary. Therefore, 50% of ₹6,757/- is reasonable to be added to it in consideration of loss of future prospects. Thus, ₹10,135/- (₹6,757/- + 50% of ₹6,757/-) is arrived at. '16' being the multiplier applicable to the age of the deceased at the relevant time of his death is also adopted. When compensation for dependency is re-calculated on the basis of the above factors, ₹19,45,920/- (₹10,135/- x 12 x 16) is arrived at. From the above sum, 1/4[th] is also deducted in consideration of personal expenditure of the deceased, had he been alive. In the above manner of calculation, ₹14,59,440/- (₹19,45,920/- - ¼ of ₹19,45,920/-) is arrived at. ₹15,000/- stood awarded by the Tribunal as compensation towards pain and sufferings and loss of love and affection when deducted, petitioners will get ₹14,44,440/(₹14,59,440/- - ₹15,000/-) as compensation towards ``` M.A.C.A.No.777 of 2014 ``` ``` 12 ``` loss of dependency. ₹13,60,000/- stood awarded by the Tribunal as compensation under that head when deducted from the sum now arrived at, petitioners will get ₹84,440/- (₹14,44,440/- - ₹13,60,000/-) as additional compensation. 13. Each of the petitioners are also entitled to get ₹44,000/- as compensation towards loss of consortium and therefore, ₹2,20,000/- (₹44,000/- x 5) is arrived at. ₹10,000/- stood awarded by the Tribunal when adjusted against, petitioners will get ₹2,10,000/- as compensation towards loss of consortium. ₹5,000/- and ₹10,000/- stood awarded as compensation towards funeral expenses and loss of estate when adjusted against ₹16,500/- payable as compensation under the respective heads, petitioners will get ₹11,500/- and ₹6,500/- respectively as additional compensation. ``` M.A.C.A.No.777 of 2014 ``` ``` 13 ``` 14. In the above manner of reassessment, petitioners will get ₹3,12,440/- (Rupees Three lakhs twelve thousand four hundred and forty only) (₹84,440/- + ₹2,10,000/- + ₹11,500/- + ₹6,500/-) as total additional compensation which will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 2[nd] respondent shall pay the compensation alongwith interest and costs within a period of 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.03/2019 dated 06.09.2019. 15. The appeal was filed with a delay of 327 days and therefore, the 2[nd] respondent was exonerated from paying interest for that period vide order passed by this Court on 19.01.2022 in ``` M.A.C.A.No.777 of 2014 ``` ``` 14 ``` C.M.Application No.01/2014. Therefore the 2[nd] respondent is not liable to pay interest for 327 days of delay occurred in filing the appeal on hand. M.A.C.A stands allowed accordingly. sd/- **MARY JOSEPH JUDGE** NAB