Pushpy Biju and Others vs. The Managing Director, Kerala State Road Transport Corporation (KSRTC) and Vinod P.A.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 13[TH] DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943** ## **MACA NO. 1938 OF 2011** ## **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1213/2007 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANTS/PETITIONERS IN O.P (MV):** 1 PUSHPY BIJU, AGED 40 YEARS, W/O DECEASED BIJU, THURUTHUMEL HOUSE,, SRINGAPURAM, KODUNGALLOOR, THRISSUR DISTRICT. 2 ANTINIYA MARY D/O. DECEASED BIJU AGED 7 YEARS THURUTHUMEL HOUSE,, SRINGAPURAM, KODUNGALLOOR, THRISSUR DISTRICT. (REP. BY THE MOTHER) 3 MARY GEORGE, AGED 64 MOTHER OF THE DECEASED,, THURUTHUMEL HOUSE,, SRINGAPURAM, KODUNGALLOOR, THRISSUR DISTRICT. BY ADVS.SMT.SADHANA KUMARI ESWARI SRI.N.AJITH ## **RESPONDENTS/RESPONDENTS:** 1 THE MANAGING DIRECTOR, K.S.R.T.C THIRUVANANTHAPURAM. 2 VINOD.P.A S/O. AYYAPPAN PURAPPAYIL HOUSE, KALAMASSERY.P.O, ALUVA, ERNAKULAM DISTRICT - 683 104. BY ADVS.SRI.JOY GEORGE, SC, K.S.R.T.C. SRI.P.C.CHACKO, SC, KSRTC. ALEX ANTONY SEBASTIAN P.A.SC KSRTC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1938 OF 2011** **2** ## **J U D G M E N T** The appellants were the petitioners in O.P. (MV) No.1213/2007 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the death of 'Biju'(deceased), the husband of the 1[st] appellant, father of the 2[nd] appellant and the son of the 3[rd] appellant. It was their case that, on 30.7.2007, while the deceased was riding on his motorcycle bearing registration No.KL-8 AC 7433 along the Kodungallur-Paravur Public Road, a bus bearing Reg. No.KL-15/3448 (bus), driven by the 2[nd] respondent in a rash and negligent manner, hit the motorcycle of the deceased. The deceased sustained fatal injuries and lost **MACA NO. 1938 OF 2011** ## **3** his life instantaneously. The deceased was a Marble contract worker and was earning a monthly income of Rs.6,000/-. The bus was owned by the first respondent. The appellants were the dependents of the deceased. Hence, they claimed a total compensation of Rs.5,55,000/from the respondents, which claim was limited to Rs.5,00,000/-. 3. The respondents did not contest the proceedings and were set ex parte. 4. The appellants produced and marked Exts.A1 to A5 in evidence. The respondents did not let in any evidence. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellants/petitioners to recover from the 1st respondent an amount of Rs.2,95,000/- with interest at the rate of 7% per annum from the date of petition till the **MACA NO. 1938 OF 2011** **4** date of realistion and proportionate costs. 6. Dissatisfied with the quantum of compensation, the appellants/petitioners are in appeal. 7. Heard; Smt.Sadhana Kumari, the learned counsel appearing for the appellants/petitioners and Sri.Alex Antony, the learned counsel appearing for the 1st respondent /owner. 8. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Negligence and liability** 9. Ext.A2 charge-sheet filed by the Kodungallur Police in Crime No.640/2007, substantiates that the accident occurred due to the negligence of the 2[nd] respondent. The respondents have not let in any evidence to discredit Ext.A2 charge-sheet. Admittedly, the ## **MACA NO. 1938 OF 2011** ## **5** 2[nd] respondent was the employee of the 1[st] respondent. Therefore, the 1[st] respondent is vicariously liable to pay the compensation amount. ## **Income** 10. The appellants had claimed that the deceased was a Marble contract worker and earning a monthly income of Rs.6,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the deceased at Rs.6,000/- . 11. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236] the Hon’ble Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 12. Following the yardstick in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2007, I re-fix the notional monthly income of the deceased at Rs.6,000/-,instead of Rs.2,000/- fixed by the **MACA NO. 1938 OF 2011** **6** Tribunal. ## **Multiplier** 13. The deceased was aged 42 years at the time of accident. In the light of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121] , the relevant multiplier to be adopted is ‘14’. ## **Personal living expenses of the deceased** 14. It is proved and established that the appellants were the wife, daughter and mother of the deceased. They are three in number. Therefore, going by the law laid down in **Sarla Verma** (supra) and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680],1/3rd of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 15. Following the ratio in **Sarla Varma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 42 years at the time of his death and the **MACA NO. 1938 OF 2011** **7** relevant multiplier being ‘14’, I hold that the appellants are also entitled to future prospects at 25% . ## **Loss due to dependency** 16. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.6,000/-, the multiplier at '14', 25% towards future prospects and after deducting 1/3rd of the total compensation towards personal living expenses of the deceased, I re-fix the compensation for loss of dependency at Rs.8,40,000/- instead of Rs.2,40,000/- awarded by the Tribunal. ## **Conventional heads of compensation** 17 **.** In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Hon’ble Supreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads namely, ‘funeral expenses’, loss of estate’ and ‘loss of consortium' at Rs.15,000/Rs.15,000/- and Rs.40,000/- respectively. It is also observed **MACA NO. 1938 OF 2011** ## **8** that the dependents of the deceased are also entitled for 10% escalation under the said heads after a period of three years. 18. In **N.Jayasree & Others v. Cholamandalam MS General Insurance Co. Ltd** (Live Law 2021 SC 588) and in **Rasmita Biswal and Others v. Divisional Manager, National Insurance Co. Ltd & Another** (Live Law 2021 SC 717], the Hon'ble Supreme Court has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accidents. Thus, it is to be interpreted and inferred that the escalation of 10% is to be awarded after three years from the pronouncement of **Pranay Sethi** (supra),which was rendered in the year 2017, and not for accidents that occurred three years after 2017. Therefore, I hold that the appellants are entitled for compensation under the conventional heads at Rs.16,500/- towards funeral expenses, Rs.16,500/- towards **MACA NO. 1938 OF 2011** **9** loss of estate and Rs.44,000/- towards loss of consortium. 19. In the instant case, the Tribunal has awarded an amount of Rs.14,000/- under the head funeral expenses. Therefore, I enhance the compensation under the said head by a further amount of Rs.12,500/-. Similarly, the Tribunal has not awarded any amount under the head ‘loss of estate’. Thus, I hold that the appellants are entitled to an amount of Rs.16,500/- under the head 'loss of estate'. 20. It is seen that the Tribunal has awarded an amount of Rs.20,000/- towards 'loss of consortium'. In the **N** . light of the law laid down in **Pranay Sethi, Jayasree and Rasmita** (supra), I hold that each of the appellants are entitled to an amount of Rs.44,000/- towards 'loss of consortium', totalling to an amount of Rs.1,32,000/- i.e. an enhancement by Rs.1,12,000/-. ## **Pain and sufferings and Loss of love and affection** 21. It is seen that the Tribunal has awarded an **MACA NO. 1938 OF 2011** **10** amount of Rs.10,000/- under the head 'pain and suffering' and Rs.20,000/- under the head ‘loss of love and affection'. 22. In paragraph 19 of **Sarla Verma** (supra) **,** the Hon'ble Supreme Court has held that in the case of instantaneous death, the dependents of the deceased are not entitled to any amount towards pain and suffering. Similarly, in **New Insurance Assurance Co. Ltd v. Somwati & Others** [(2020) (9) SCC 644], the Hon'ble Supreme Court has held that once the compensation for loss of consortium is awarded, no amount shall be awarded under the head 'loss of love and affection', as it would it will amount to duplication of compensation. 23. Therefore, I set aside the amount of Rs.30,000/awarded under the above-said heads. 24. With respect to the compensation awarded under the head ‘transport expenses', I find that the Tribunal has awarded reasonable and just compensation. **MACA NO. 1938 OF 2011** **11** 25. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I hold that the appellants/petitioners are entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **==> picture [463 x 368] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount awarded by Amounts<br>the Tribunal (in modified and<br>.No rupees) recalculated by<br>this Court<br>1 Transport Expenses 1,000 1,000<br>2. Funeral Expenses 4,000 16,500<br>---<br>3. Loss of estate 16,500<br>4. Pain and suffering 10,000 ---<br>5. Loss of love and affection 20,000<br>6. Loss of consortium 20,000 1,32,000<br>7. Loss due to dependency 2,40,000 8,40,000<br>Total 2,95,000 10,06,000<br>=======<br>=======<br>**----- End of picture text -----**<br> **MACA NO. 1938 OF 2011** **12** 26. Even though the appellants had claimed only an amount of Rs.5,00,000/- as compensation, following the ratio in **Sarla Verma** and **Pranay Sethi** (supra) **,** I have awarded future prospects as well as compensation under the conventional heads. Consequently, I have awarded more compensation than what is claimed in the claim petition. The said course is permissible in view of the law laid down by the Hon’ble Supreme Court in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 SC] and **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 SC]. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.7,11,000/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and proportionate costs. The 1[st] respondent is ordered to deposit the enhanced compensation with interest and costs before the Tribunal within a period of two months from the date of **MACA NO. 1938 OF 2011** **13** receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellants/petitioners in the ratio of 50:40:10 respectively and in accordance with law, after deducting their liability, if any, towards payment of balance court fee . ma/13.12.2021 Sd/- **C.S.DIAS, JUDGE**