Saranya, d/o Late Sasidharan v. C. Preman and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 20TH DAY OF JULY 2016/29TH ASHADHA, 1938** ## **MACA.No. 448 of 2008 ( )** **------------------------AGAINST THE AWARD IN OPMV 465/2001 of M.A.C.T. TIRUR DATED 07-01-2005** ## **APPELLANT/3RD PETITIONER:** **----------------------** **SARANYA, D/O.LATE SASIDHARAN, KEERIKKAVILAKOM, VAKKOM P.O., THIRUVANANTHAPURAM.** ## **BY ADV. SRI.SAJU.S.A** ## **RESPONDENT(S):** **--------------** **1. C.PREMAN, S/O.KRISHNAN, CHEMMERI HOUSE,MAMBARAM P.O., PALAYAD, THALASSERY, KANNUR DISTRICT. (DRIVER OF KSRTC BUS KL-15-3083)** **2. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM.** **3. SYAMALA,W/O.LATE SASIDHARAN, KEERIKKAVILAKOM HOUSE,VAKKOM P.O., THIRUVANANTHAPURAM.** **4. SARATH,S/O.LATE SASIDHARAN DO..DO.....** **5. G.GOMATHY, MOTHER OF LATE SASIDHARAN., DO...DO.....** **R2 BY ADV. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **VPV** ## **P.N. Ravindran & A. Muhamed Mustaque, JJ.** ## **- - - - - - - - - - - - - - - - - - - - - -- - - M.A.C.A.No.448 of 2008** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] July, 2016** ## **JUDGMENT** ## **P.N. Ravindran, J.** The appellant is the third claimant in O.P.(MV) No.465 of 2001 on the file of the Motor Accidents Claims Tribunal, Tirur. She along with her mother, minor brother and paternal grandmother who are respondents 3 to 5 herein, instituted the above claim petition on 23.8.2001 claiming the sum of Rs.3,00,000/- as compensation for the death of late Sasidharan, husband of the first claimant, father of claimants 2 and 3 and son of the fourth claimant in a motor accident that took place on 12.3.1999. They contended that while the victim was alighting from a stage carriage belonging to Kerala State Road Transport Corporation, the driver took the bus forward suddenly and in that process he fell down and sustained grievous injuries to which he succumbed while undergoing treatment at Medical College Hospital, Thiruvananthapuram. They contended that the accident took place solely on account of the rash and negligent driving of the driver of the stage carriage owned by the second respondent before the tribunal. 2. Though notice was served on the first respondent before the tribunal who incidentally is the first respondent in the instant appeal, he did not enter appearance with the result he was set ex-parte. The MACA 448/2008 2 Managing Director of the KSRTC, the second respondent before the tribunal and in the instant appeal entered appearance but he did not file a written statement. Before the tribunal, the wife of the victim, the first claimant, was examined as PW1 and Exts.A1 and A2 were produced and marked. After considering the averments in the claim petition and the evidence on record, the tribunal held that as the accident is not in dispute and the allegation of negligence is not denied, the conclusion is inescapable that the victim died in a motor accident which took place on 12.3.1999 and that it occurred on account of the rash and negligent driving of the first respondent. The tribunal also held that the second respondent being the owner of the motor vehicle, is vicariously liable. The tribunal thereafter proceeded to award compensation under the head loss of dependency taking the monthly income of the victim as Rs.3,000/- and the multiplier as 15. The tribunal held that the claimants are entitled to receive the sum of Rs.14,500/- as compensation under the heads funeral expenses, loss of consortium, loss to the estate, pain and suffering, etc.. However, on the short ground that the claim has been limited to Rs.3,00,000/-, the said sum alone was awarded as compensation. The second respondent was directed to pay the said amount with interest at 6% per annum from the date of petition till realisation along with costs MACA 448/2008 3 quantified at Rs.1,000/-. The third claimant who has since then attained majority, has filed this appeal, dissatisfied with the quantum of compensation awarded by the tribunal. She has joined the other claimants as respondents 3 to 5 in the instant appeal. 3. We heard Smt. A. Meena, learned counsel appearing for the appellant, Sri P.C. Chacko, learned standing counsel appearing for the second respondent and Sri Vinod Ravindranath, learned counsel appearing for respondents 3 to 5. We have also gone through the pleadings and the materials on record. The claimants had in the claim petition averred in positive terms that the victim fell down while alighting from the bus when the driver suddenly moved the vehicle forward. This averment was not denied either by the driver or by the Managing Director of the Kerala State Road Transport Corporation who were joined as respondents 1 and 2 in the claim petition and were duly served. Since the averment in the claim petition was not traversed, accepting the said averment as also the testimony tendered by the first claimant who was examined as PW1 and relying on Ext.P2 postmortem certificate, the tribunal held that the victim died as a result of the injuries which he sustained in a motor accident which took place on account of the rash and negligent driving of the first respondent. The said findings are not under challenge before us. MACA 448/2008 4 4. The claimants had in the claim petition stated that the victim was a carpenter earning a monthly income of Rs.3,500/-. PW1, his wife has also spoken to the case set out in the claim petition. The averments in the claim petition were not traversed. The tribunal has while considering issue No.2, held that there is no dispute with regard to the cause of death, the income of the victim, his age and other details. Such being the situation, we are of the opinion that the tribunal erred in limiting the monthly income of the victim to Rs.3,000/-. As the averment in the claim petition regarding the employment and income of the victim had not been traversed, we are of the opinion that as the income claimed was not exorbitant, the tribunal ought to have accepted the statement regarding income contained in the claim petition and spoken to by PW1. Since the victim was aged 43 years, the multiplier to be applied is 14 and not 15. Since his wife, two minor children and the mother were dependent on him, only one fourth of the income is liable to be deducted towards his personal expenses. It is now well settled by a series of decisions of the Apex Court that future prospects can also be taken into consideration for computing the loss of dependency. As the victim was in the age group of 40 - 50, 30% of the monthly income can be taken into account for the said purpose. Thus computed, the compensation MACA 448/2008 5 payable under the head loss of dependency will be Rs.5,73,300/(Rs.3500 x 130/100 = Rs.4,550/- x 12 x 14 x ¾). The tribunal has awarded an aggregate compensation of Rs.3,00,000/-. We accordingly award to the appellants/claimants an additional compensation of Rs.2,73,300/- under the head loss of dependency. 5. Though the tribunal had quantified the compensation payable under the heads funeral expenses, loss of consortium, loss to the estate, pain and suffering, etc. as Rs.14,500/-, the said amount was not awarded on the ground that the claim had been limited to Rs.3,00,000/-. It is now well settled by the decision of the Apex Court in **Rajesh v. Rajbir Singh** (2013(3) KLT 89), that even without an amendment of the claim petition, the tribunal has a duty to award just and fair compensation. The victim was aged 43 years. His wife, the first claimant was aged 39 years. She has not admittedly remarried. The tribunal has however not awarded any amount as compensation to her under the head loss of consortium. As the first claimant was widowed at the young age of 39 years, we are of the opinion that an amount of Rs.1,00,000/- can be awarded as compensation for loss of consortium. The victim had, at the time of the accident, left behind two minor children (a son and a daughter), aged 15 years and 13 years respectively. Taking the cue from the decision of the Apex Court in MACA 448/2008 6 **Rajesh's case** (supra), a consolidated amount of Rs.1,00,000/- can be awarded to them as compensation for loss of love and affection, parental care and guidance. We therefore award the sum of Rs.1,00,000/- as compensation to them for loss of love and affection. The victim had left behind his mother, then aged 75 years. She is even today alive. We accordingly award the sum of Rs.25,000/- as compensation to her under the head loss of love and affection to the mother, the fourth claimant. The accident took place on 12.3.1999. The victim succumbed to the injuries only on the next day. Having regard to the said fact, we deem it appropriate to award the sum of Rs.10,000/- as compensation under the head pain and suffering. Since no amount has been awarded as compensation under the head funeral expenses and having regard to the fact that the accident took place in the year 1999, we award a like sum of Rs.10,000/- under the head funeral expenses. We also deem it appropriate, having regard to the fact that the victim was an earning member of the family, to award the sum of Rs.10,000/- as compensation under the head loss to the estate. We accordingly allow the appeal in part and award to the appellants/claimants an additional compensation of Rs.5,28,300/- over and above the compensation awarded by the tribunal. The second MACA 448/2008 7 respondent shall deposit the said amount together with interest at 9% per annum from the date of petition, till the date of deposit (except for the period of 885 days) within three months from today. Upon such deposit being made, the sum of Rs.25,000/- shall be disbursed to the fourth claimant. 50% of the balance amount shall be disbursed to the first claimant. The balance amount shall be disbursed in equal shares to claimants 2 and 3. The parties shall suffer their respective costs in this court. ## **(P.N. Ravindran, Judge)** ## **(A. Muhamed Mustaque, Judge)** ## **kav/**