SANTHA and others v. KERALA STATE ROAD TRANSPORT CORPORATION

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 16[TH] DAY OF JULY 2021 / 25TH ASHADHA, 1943** ## **MACA NO. 1215 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 290/2005 ON THE FILE OF MOTOR** ## **ACCIDENTS CLAIMS TRIBUNAL,KOLLAM** ## **APPELLANTS/PETITIONERS:** 1 SANTHA, W/O. K. BABU, VELITHEKKETHARAYIL, PADA SOUTH, KARUNAGAPPALLY, KOLLAM. 2 BINU, S/O. BABU, VELITHEKKETHARAYIL, PADA SOUTH, KARUNAGAPPALLY, KOLLAM. 3 BINDHU, D/O. BABU, VELITHEKKETHARAYIL, PADA SOUTH, KARUNAGAPPALLY, KOLLAM. 4 K.BABU, H/O. SANTHA, VELITHEKKETHARAYIL, PADA SOUTH, KARUNAGAPPALLY, KOLLAM. BY ADV SRI.C.RAJENDRAN ## **RESPONDENTS/RESPONDENTS:** 1 MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. 2 SAIDU KAMARUDHEEN SAHIB, S/O.SAIDU DADA SAHIB, THENGUMVILAYIL VEEDU,, KADAPPA MURI, MYNAGAPPALLY, KOLLAM. ## **MACA NO. 1215 OF 2010 2** BY ADVS. SRI.P.C.CHACKO(PARATHANAM) SMT.AMBIKA RADHAKRISHNAN SRI.SAJEEV KUMAR K.GOPAL SRI.JOY GEORGE, SC, K.S.R.T.C. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1215 OF 2010 3** ## **JUDGMENT** The appellants were the petitioners in OP(MV) No.290 of 2005 on the file of the Motor Accidents Claims Tribunal, Kollam. 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), aged 21 years, who was the son of the appellants 1 and 4 and brother of the appellants 2 and 3. The appellants had averred in the claim petition that on 16.3.2005 while the deceased was traveling pillion on a bicycle along the Lalaji Mukku – Panickar Kadavu road, a stage carriage bus bearing Reg.No.KL-15/1555 (TA 515) (offending vehicle) driven by the 2[nd] respondent in a rash and negligent manner hit the bicycle. The bus belonged ## **MACA NO. 1215 OF 2010 4** to the 1[st] respondent. The deceased was a mason by profession and earning a monthly income of Rs.3,500/-. The accident occurred solely on account of the negligence on the part of the 2[nd] respondent. Therefore, the appellants were entitled for compensation from the respondents, which they quantified at Rs.5,00,000/-. 3. The 1[st] respondent filed a written statement disputing the age, occupation and income of the deceased. It was contended that the accident occurred on account of the negligence on the part of the rider of the bicycle, who cut across the road which resulted in the accident. The 2[nd] respondent had driven the offending vehicle with ample care and caution. Nevertheless, the compensation claimed under the different heads were excessive and exorbitant. 4. The 2[nd] respondent did not contest the proceedings and was set ex parte. **MACA NO. 1215 OF 2010 5** 5. The appellants produced and marked Exts.A1 to A10 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellants to recover an amount of Rs.2,90,000/- with interest @ 7.5 % per annum from the date of petition till the date of realization along with proportionate costs from the 1[st] respondent. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners/appellants are in appeal. 8. Heard, the learned counsel appearing for the appellants/petitioners and the learned Standing Counsel appearing for the 1[st] respondent Corporation. 9. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. **MACA NO. 1215 OF 2010 6** 10. A constitution Bench of the Hon'ble Supreme Court in _**National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680)**_ , has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 11. Ext.A4 final report filed by the Karunagappally Police in Crime No.240 of 2005 clearly proves that the accident occurred solely on account of the negligence of the 2[nd] respondent, who drew the offending vehicle in a negligent manner. As the 1[st] respondent is the owner of the offending vehicle, the 1[st] respondent is vicariously liable to pay compensation to the appellants. ## **MACA NO. 1215 OF 2010 7** 12. The appellants had claimed that the deceased was a mason by profession and earning a monthly income of Rs.3,500/-. However, the Tribunal fixed the notional income of the deceased at Rs.3,000/- per month. ## **Notional Income** 13. The Hon'ble Supreme Court in _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13) SCC 236),**_ has fixed the notional income of a Coolie Worker in the year 2004 at Rs.4,500/- per month. 14. Following the ratio in the aforecited decision and considering the fact that the accident occurred in the year 2005, I am of the opinion that the notional monthly income of the deceased has to be refixed at Rs.3,500/-, as claimed in the claim petition. ## **Multiplier** 15. The Tribunal fixed the multiplier at '15'. The **MACA NO. 1215 OF 2010 8** deceased was aged 21 years at the time of accident. In _**Sarala Verma v. Delhi Transport Corporation**_ _**(2009) 6 SCC 121)**_ the Hon'ble Supreme Court has held that the relevant multiplier for a person aged 21 years is '18'. Hence, I fix the multiplier at '18'. ## **Personal Living Expenses of the deceased** 16. Undisputedly, the deceased was a bachelor. In light of the law laid down in _**Sara Verma**_ and _**Pranay Sethi**_ (supra) 50% of the total compensation for loss of dependency has to be deducted towards the personal living expenses of the deceased, while I do. ## **Future Prospects** 17. In _**Sarala Verma**_ and _**Pranay Sethi**_ (supra), the Hon'ble Supreme Court has held that the dependents of the deceased are also entitled for future prospects on the total compensation for loss of dependency. As the deceased was aged 21 years and was self employed, 40% **MACA NO. 1215 OF 2010 9** of the total compensation on loss of dependency has to be added towards future prospects. ## **Loss due to dependency** 18. Taking into account the above factors, namely; the notional income at 3,500/-, the multiplier at '18', future prospects at 40% and deducting 50% towards the personal living expenses of the deceased, I refix the compensation under the head loss of dependency at Rs.5,29,200/-, instead of Rs.2,70,000/- awarded by the tribunal. ## **Conventional heads of compensation** 19. 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/-, 15,000/- and 40,000/- respectively. ## **MACA NO. 1215 OF 2010 10** 20. In light of the ratio in the aforecited decision, I enhance the compensation under the head funeral expenses by a further amount of Rs.10,000/-, i.e., a total amount of Rs.15,000/-. Similarly, I award an amount of Rs.15,000/- under the head 'loss of estate'. ## **Loss of consortium** 21. Undisputedly, the appellants 1 and 4 are the parents of the deceased, who were in their early 40's at the time of death of the deceased. The appellants 2 and 3 were siblings of the deceased, who were minor children at the time of the accident, and were under the protection of the appellants 1 and 4. Therefore, I am of the definite opinion that only the appellants 1 and 4 are entitled for compensation under the head loss of filial consortium. Therefore, I fix the compensation under the head 'loss of consortium' at Rs.80,000/-. 22. The Tribunal awarded an amount of Rs.10,000/- **MACA NO. 1215 OF 2010 11** under the head loss of love and affection. This Court in _**Kunjandy.L and others v. Rajendran (2020(2) KLT 315)**_ has held that once compensation is awarded under the head 'loss of consortium', no compensation can be awarded under the head loss of love and affection, as it would be a duplication of compensation. In view of the above ratio, I set aside the amount of compensation of Rs.10,000/- awarded under the head loss of love and affection. Similarly, the Tribunal has awarded an amount of Rs.5,000/- under the head pain and sufferings. In _**United India Insurance Ltd. v. Company Sachindar Kaur @ Satindar Kaur and others (2020 (3) KHC 760)**_ has held that the dependents of the deceased are not entitled for compensation under the head 'pain and sufferings'. Therefore, I set aside the amount of compensation awarded under the said head. 23. Although the appellants had only claimed an **MACA NO. 1215 OF 2010 12** amount of Rs.5,00,000/- in the claim petition, following the ratio in Pranay Sethi and Sarala Verma (supra), the appellants are now entitled for an amount of Rs, 6,40,200/-. It is trite law, has held by _**Nagappa v. Gurudwara Singh (2003 1 KLT 115 (SC),**_ that there no restriction in the Courts awarding more compensation than what is claimed in the claim petition as the courts are bound to award just and reasonable compensation. The said view has been re-iterated in _**E.Rajesh v. Rajbir**_ . _**Singh (2013 (3) KLT 89 SC)**_ 24. On an over all re-appreciation of the pleadings and materials on record, the law laid down in the aforecited decisions, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. ## **MACA NO. 1215 OF 2010 13** |Head of claim|Amount<br>Awarded by<br>the<br>Tribunal (in<br>Rs.)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---| |Transportation<br>expenses|-|1,000/-| |Funeral expenses|5,000/-|15,000/-| |Pain and sufferings|5,000/-|-| |Love and affection|10,000/-|-| |Loss of estate|-|15,000/-| |Loss of consortium|-|80,000/-| |Loss<br>of<br>dependency|2,70,000/-|5,29,200/-| |Total|2,90,000/-|6,40,200/-| In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.3,50,200/with interest at the rate of Rs.7.5% per annum on the compensation from the date of petition till the date of **MACA NO. 1215 OF 2010 14** realisation and proportionate costs. The 1[st] respondent shall deposit the enhanced compensation along with interest and proportionate costs before the Tribunal within a period of three months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellants/petitioners in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm