Shobhana v. Ramachandran K.R and The Managing Director, KSRTC

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944 MACA NO. 1138 OF 2014 ``` ``` AGAINST THE AWARD DATED 14.02.2014 IN O.P(M.V) NO.250/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA ``` ## **`APPELLANTS/PETIITONERS:`** ``` 1SHOBHANA, W/O.LATE GOPI, AGED 47 YEARS, VARIKKATTU HOUSE, ELANGAVOM, VARAPETTY P.O., KOTHAMANGALAM. 2AKHILA, D/O.LATE GOPI, AGED 20 YEARS VARIKKATTU HOUSE, ELANGAVOM, VARAPETTY P.O., KOTHAMANGALAM. 3ABHIJITH, S/O.LATE GOPI, AGED 18 YEARS VARIKKATTU HOUSE, ELANGAVOM, VARAPETTY P.O., KOTHAMANGALAM 4ANUJITH, S/O.LATE GOPI, AGED 18 YEARS VARIKKATTU HOUSE, ELANGAVOM, VARAPETTY P.O., KOTHAMANGALAM 5THANKAPPAN, S/O.AYYAPPAN, AGED 76 YEARS VARIKKATTU HOUSE, ELANGAVOM, VARAPETTY P.O., KOTHAMANGALAM BY ADVS.SRI.SOORAJ T.ELENJICKAL SRI.P.K.ABDU RAHEEM ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1RAMACHANDRAN K.R, S/O.RAMAN, KANNEDATH HOUSE, KUNNACKAL P.O., MUVATTUUZHA-682316. 2THE MANAGING DIRECTOR K.S.R.T.C., THIRUVANANTHAPURAM 695023. BY ADV. SRI.ALEX ANTONY SEBASTIAN P.A., SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1138 of 2014 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 07[th ] day of February, 2023** This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Muvattupuzha (for short ‘the Tribunal’) on 14.02.2014 in O.P(M.V) No.250/2010. 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. The petitioners are legal heirs and dependents of one Mr.Gopi who succumbed to the injuries sustained in a motor accident occurred at about 5.30 pm on 27.09.2009. Mr.Gopi was travelling in a KSRTC Bus bearing Registration No.KL-15/4061 through Puthuppady-Varappetty public road and due to the rash and negligent driving of the Bus by its driver, he was thrown out from the bus at Milekavala. He succumbed to the injuries immediately after the accident. The postmortem examination of his body was conducted and in the certificate issued, smell of alcohol was reported. Alleging that ``` M.A.C.A.No.1138 of 2014 ``` ``` 3 ``` the accident was occurred due to the rash and negligent driving of the KSRTC bus by its driver and raising a claim for a total sum of Rs.5,00,000/- as compensation, the Original Petition was moved. The driver and owner of KSRTC bus were arrayed as respondents 1 and 2 in the Original Petition. 1[st] and 2[nd] respondents were served with notice and they filed a joint written statement contending as follows: The 1[st] respondent was driving the bus in normal speed and with due care and caution and therefore was not liable for causing the accident. The deceased was under the influence of the alcohol and jumped from the moving Bus all on a sudden, when it reached at Mile Bhagam and thereby sustained injuries. Age, occupation and monthly income of the deceased were disputed. Compensation claimed is also disputed for its exorbitant nature. The Original Petition was sought to be dismissed for the reasons. 4. Before the Tribunal, petitioners have marked Exts.A1 to A6. The respondents did not adduce any evidence. On appreciation of the evidence adduced by the petitioners, the Tribunal found that the driver of the KSRTC Bus as well as ``` M.A.C.A.No.1138 of 2014 ``` ``` 4 ``` the deceased were negligent in causing the motor accident. 50% contribution was found from the side of the deceased towards the accident. The Tribunal has arrived at Rs.6,63,272/- rounded off to Rs.6,63,300/- as the sum payable as compensation. The contribution of the deceased being found as 50%, the 2[nd] respondent was directed to deposit half of the compensation stands arrived at. Aggrieved thereby, the petitioners are now before this Court, in the appeal on hand. 5. It is contended by Sri.Sooraj T Elenjickal, the learned counsel for the petitioners that though the deceased was claimed to be a Tailor earning Rs.5,000/- monthly, the Tribunal had fixed only Rs.3,500/- as the monthly income on a notional basis. According to the learned counsel, the occurrence resulting in the injuries being in the year 2009, the Tribunal ought to have taken a sum higher than that was fixed as his monthly income and to calculate compensation for loss of dependency on its basis. The learned counsel has also pointed out that under the heads loss of estate, funeral expenses and loss of consortium also the Tribunal had awarded meager sums as compensation. The learned counsel ``` M.A.C.A.No.1138 of 2014 ``` ``` 5 ``` canvassed for a re-fixation of the compensation stand awarded under the above heads on the basis of the dictum in **National Insurance Company Limited v. Pranay Sethi** [2017 (4) KLT 662 (SC)]. 6. According to the learned counsel for the 2[nd] respondent the Tribunal had added 30% to the monthly income in consideration of loss of future prospects and that is on the higher side. According to him, the addition ought to have been 25%. However, the learned counsel conceded that the petitioners are entitled to get compensation for loss of estate, funeral expenses, and loss of consortium at the rates fixed by the Apex Court in **Pranay Sethi** supra. 7. It is pertinent to note from the claim raised by the petitioners in the Original Petition that the deceased was a Tailor aged 46 years earning Rs.5,000/- as monthly income. The accident was occurred in the year 2009. Evidence of any nature was not forthcoming to establish the claims of the petitioners on job and monthly income of the deceased. Since the accident was occurred in the year 2009, this Court finds it reasonable to fix Rs.7,000/- as the monthly income. The ``` M.A.C.A.No.1138 of 2014 ``` ``` 6 ``` Tribunal had added 30% of the monthly income in consideration of future prospects. The actual statutory entitlement being for an addition of 25% to the monthly income, this Court is inclined to modify it in that manner. The multiplier is taken as ‘13’ and it being correct is maintained. The deceased was survived by five members and therefore, 1/4[th] is liable to be deducted in consideration of the personal expenditure the deceased would have to met with, had he been alive. 8. Each of the five surviving members of the deceased are entitled to get Rs.44,000/- towards loss of consortium. When assessed in the above manner, Rs.2,20,000/- is the sum payable as compensation under the head loss of consortium. Rs.40,000/- stands awarded by the Tribunal under that head when adjusted against the sum now arrived at, the petitioners will get Rs.1,80,000/- as additional compensation under that head. The Tribunal had awarded only Rs.5,000/- under the head loss of estate, whereas the petitioners are entitled to get Rs.16,500/-. Rs.5,000/- stands awarded by the Tribunal when adjusted against the sum payable, the petitioners will get ``` M.A.C.A.No.1138 of 2014 ``` ``` 7 ``` Rs.11,500/- as additional compensation under that head. Under the head funeral expenses the Tribunal had awarded Rs.5,000/- and the entitlement of the petitioners being to Rs.16,500/-, this Court is inclined to grant Rs.11,500/- more and thereby the petitioners will get that amount as additional compensation. 9. Since Rs.7,000/- was taken as the monthly income of the deceased and 25% was added to it in consideration of loss of future prospects, 1/4[th] deducted therefrom and the multiplier of 13 adopted, a sum of Rs.10,23,750/- [((7000 x 12) + 25/100 x13) x ¾] is payable in total. Rs.5,32,272/stands awarded by the Tribunal when adjusted against, the petitioners will get Rs.4,91,478/- as additional compensation under the head loss of dependency. 10. In the above manner of assessment, the petitioners are entitled to get a sum of Rs.6,94,478/- as additional compensation. Petitioners being disentitled to get compensation for pain and suffering and loss of love and affection, Rs.70,000/ (Rs.10,000/- + Rs.60,000/-) stand awarded by the Tribunal needs to be deducted from the total ``` M.A.C.A.No.1138 of 2014 ``` ``` 8 ``` sum arrived at as payable additionally. Therefore the petitioners will get Rs.6,24,478/- as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 11. The Tribunal had found 50% contribution from the side of the deceased towards the accident. This Court has noticed from the allegations in Ext.A1 FIR and Ext.A5 final report that the deceased was thrown out from the Bus when he attempted to get down from the same at a bus stop. The driver of the KSRTC Bus moved the bus in high speed and thereby he was thrown away from the Bus. True that smell of alcohol was found in the postmortem examination of the body of the victim. But smell of alcohol is insufficient to fix negligence. There must be some cogent evidence to show that the deceased had also contributed to the accident by his negligent travelling. It cannot be drawn from the allegations in Ext.A1 and Ext.A5 that Mr.Gopi (the deceased) jumped out of the Bus and thereby sustained injuries. Therefore the Tribunal is erred in holding that the deceased had 50% contribution ``` M.A.C.A.No.1138 of 2014 ``` ``` 9 ``` towards the accident and the said finding is only to be set aside. This Court set aside the finding and fixed the entire liability for the accident on the driver of the KSRTC Bus and the liability to pay the compensation on the 2[nd] respondent. The 2[nd] respondent shall pay the additional compensation arrived at with interest fixed thereon and the sum stands awarded by the Tribunal with interest fixed on it (if not already paid) within in a period of two months from the date of receipt of a certified copy of this judgment. MACA stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB