Salija Devi v The Managing Director, Kerala State Road Transport Corporation and K.O. Joy

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 11TH DAY OF MARCH 2016/21ST PHALGUNA, 1937 MACA.No. 238 of 2007 (B) ------------------------- AGAINST THE AWARD IN OPMV 3316/1997 of M.A.C.T., ERNAKULAM DATED 04-05-2005 ## APPELLANTS/PETITIONERS:: ----------------------- ## 1. SALIJA DEVI. V.S., AGED 40 YEARS, W/O.LATE KRISHNAKUMAR. ## 2. SOUMYA KRISHNA K., AGED 20 YEARS, D/O. -DO- 3. SAJITH. K., AGED 18 YEARS, S/O. -DO- ## 4. M. GOPALAN NAIR, (DIED). 5. SUBADRA AMMA, AGED 62 YEARS, W/O.GOPALAN NAIR. ## 6. CHINNA AMMAL (DIED). ALL ARE RESIDING AT VATHERIL HOUSE, WARD NO.8, AROOR P.O., PIN-688 534. BY ADVS. SRI.R.SUDHISH SMT.M.MANJU RESPONDENTS: - -------------- 1. THE MANAGING DIRECTOR, THE KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. 2. K.O. JOY, BAIJU BHAVAN, NADUVILAKARA CHERIYIL, THRIKKOVILVATTOM, PANCHAYATH WARD NO.5, KOLLAM TALUK, KOLLAM DISTRICT. R1 BY ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC R1 BY ADV. SRI.JOY GEORGE, SC, K.S.R.T.C. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -----------------------------------------------------------------M.A.C.A.No.238 of 2007 -----------------------------------------------------------------Dated this the 11[th] day of March, 2016** ## **JUDGMENT** ## Anil K.Narendran, J. The appeal is for enhancement of the compensation awarded by the Tribunal in respect of death, pursuant to the road traffic accident occurred on 8.9.1997. 2. The factual position revealed from the proceedings is that, when the deceased was walking along Alappuzha-Ernakulam National Highway, a K.S.R.T.C. bus bearing No.KL-15/1778 driven by the 2[nd] respondent which came from the opposite direction hit the deceased causing severe injuries and while under treatment at Medical Trust Hospital he succumbed to injuries on 11.9.1997, which led to the claim petition filed by his legal heirs before the Tribunal seeking to compensate the loss. 3. The matter was contested by the respondent KSRTC. The nature of contention raised by the respondent KSRTC was mainly on quantum and negligence. M.A.C.A.No.238 of 2007 2 4. The evidence adduced before the Tribunal consists of Exts.A1 to A10 and the oral evidence of PW.1. The respondents have not chosen to adduce any oral or documentary evidence. 5. Based on the relevant materials on record, the Tribunal arrived at a finding that the accident occurred solely because of the negligence on the part of the driver of the KSRTC bus and proceeded to fix the compensation accordingly. 6. Coming to the quantum of compensation payable, the case projected by the claimants before the Tribunal was that the deceased was a labourer in Naval Base and earning a monthly income of 3,600/-. But the Tribunal reckoned only 1,200/- as₹ ₹ monthly income for working out loss of dependency. Awarding amounts under different heads, total compensation was fixed as ₹2,41,000/-, which was directed to be satisfied with interest @9% per annum from the date of petition till the date of realisation. The liability accordingly mulcted upon the shoulders of the respondent/KSRTC. 7. Inadequacy of compensation is the subject matter of challenge in this appeal. M.A.C.A.No.238 of 2007 3 8. Heard the learned counsel for the appellants as well as the learned counsel for the 1[st] respondent. 9. The amounts awarded by the Tribunal under different heads as given in paragraphs 7 and 8 are as follows:- ₹ |Loss of dependency|2,16,000/-| |---|---| |Transportation,|| |Carriage of dead body &|| |Funeral expenses|5,000/-| |Pain and suffering|10,000/-| |Loss of consortium|5,000/-| |Loss of love and affection|5,000/-| ||--------------| ||2,41,000/-<br>₹| ||========| 10. At the time of accident the deceased was aged 35 years. The appellants claimed that the deceased was a labourer in Naval Base and earning a monthly income of 3,600/-. In₹ order to substantiate the aforesaid contention the appellants relied on Ext.A7 certificate which would show that the deceased was employed as US Labourer in the Naval Aircraft Yard, Kochi and getting monthly income of 3,602/-. He could have continued₹ M.A.C.A.No.238 of 2007 4 in service till December, 2021. Ext.A7 certificate is issued by the Administrative Officer Grade-II, Civilian Admn. Officer for Commodore Superintendent and it also bears the official seal of the Naval Aircraft Yard, Kochi. In such circumstances, we find absolutely no grounds to sustain the reasoning of the Tribunal in limiting the monthly income of the deceased to 1,800/- for the₹ purpose of computing dependency compensation. We hold that, for the purpose of dependency compensation, the monthly income of the deceased can be reckoned as 3,600/-. Considering₹ the nature of employment of the deceased, 50% addition can be made towards future prospects in view of the judgment of the Apex Court in **Rajesh Vs. Rajbir Singh (2013 (9) SCC 54)** since the deceased was aged only 35 years. 11. The Tribunal found that, appellants 1 to 3 and the 6[th] appellant (who is no more) are the dependants of the deceased. As the family of the deceased consists of 4 depending members, 1/4[th] of his monthly income alone could be deducted towards his personal and living expenses. Since the deceased has crossed the age of 35 years, the proper multiplier applicable as per the M.A.C.A.No.238 of 2007 5 verdict in **Sarla Verma Vs. Delhi Transport Corporation (2009 (6) SCC 121)** is 15. Accordingly the dependency compensation is reworked as follows; 3600+1800=5400 x 12 x ¾ x 15=7,29,000/-. The Tribunal awarded a sum of 2,16,000/-₹ towards loss of dependency. In the result, the additional compensation under this head comes to **₹5,13,000/-** . 12. Towards funeral expenses the Tribunal awarded a sum of 5,000/-. Going by the mandate of the decision rendered by₹ the Supreme Court in **Rajesh Vs. Rajbir Singh [2013 (3) KLT 89(SC)]** unless better evidence is produced a sum of 25,000/-₹ requires to be satisfied towards the funeral expenses. The accident in the said case was in the year 2007, in the instant case it is in 1997. Therefore we deem it appropriate to re-fix the compensation towards funeral expenses as 10,000/-, resulting₹ an additional compensation of **₹5,000/-** . 13. Towards pain and suffering the Tribunal awarded a sum of 10,000/-. The compensation awarded by the Tribunal₹ under this head represents just and reasonable compensation which requires no interference in this appeal. 6 M.A.C.A.No.238 of 2007 14. Towards loss of consortium the Tribunal awarded a sum of 5,000/-. Similarly towards loss of love and affection the₹ Tribunal awarded a further sum of 5,000/-. In₹ **Rajesh v. Rajbir Singh (2013 (3) KLT 89),** the Apex Court held that, in appropriate cases, a maximum of ₹1,00,000/- has to be awarded under the head loss of consortium. In that case the deceased was aged 33 years and his wife was still young. In the aforesaid judgment, the Apex Court awarded a further sum of ₹1,00,000/towards loss of love and affection. A Division Bench of this Court after referring to the decision of the Apex Court in Rajesh's case (supra) has held in **Valsamma and another v. Binu Jose and others (2014 (1) KLT 10)** that, the age of the deceased, the age of the wife, the period for which consortium is lost, period of marital life, etc. are relevant factors to be considered while fixing compensation payable under the head loss of consortium. The above reasoning of the Division Bench is equally applicable while awarding compensation towards loss of love and affection. Therefore, the age of the deceased and that of the dependents is a relevant factor to be considered, while awarding compensation M.A.C.A.No.238 of 2007 7 ## for love and affection. 15. In the instant case the accident was of the year 1997 and at the time of accident the deceased was aged 35 years, his wife, namely the 1[st] appellant was aged 31 years and his children, 2[nd] and 3[rd] appellants were aged 11 years and 9 years respectively. Considering the facts and circumstances, we deem it appropriate to re-fix the compensation payable to the 1[st] appellant towards loss of consortium as 50,000/-, resulting an₹ additional compensation of **₹45,000/-** . Similarly, compensation towards loss of love and affection is also re-fixed as 50,000/-,₹ resulting an additional compensation of **₹45,000/-** . 16. The Tribunal has not granted any amount under loss of estate. Considering the facts and circumstances we deem it appropriate to grant a sum of **₹5,000/-** under this head. 17. In the result, the additional compensation payable in this appeal comes to **₹6,13,000/-** which requires to be satisfied with interest @9% per annum from the date of petition. 18. However we find that the appeal was filed with a delay of 270 days which was sought to be condoned by filing M.A.C.A.No.238 of 2007 8 C.M.Appln.No.233 of 2007. The delay was condoned as per order dated 19.2.2016, subject to the rider that, if at all any enhancement is awarded, the appellants will not be entitled for the interest for the period of delay. We make the said order absolute and it is made clear that interest does require to be satisfied only to the said extent, without reckoning the period of delay. The amount of compensation shall be apportioned in the ratio fixed by the Tribunal in the last paragraph of the Award. We direct the 1[st] respondent KSRTC to have the due amount deposited within one month from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. Sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge