Shyla Beevi v. The Managing Director, Kerala State Road Transport Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY ,THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940** **MACA.No. 2621 of 2016** **AGAINST THE AWARD IN OPMV 2410/2006 of ADL.MOTOR ACCIDENTS CLAIM TRIBUNAL-IV THIRUVANANTHAPURAM DATED 22-04-2016** ## **APPELLANT/PETITIONER:** **SHYLA BEEVI AGED 44, W/O. ABDUL LATHEEF, SAKEER MANZIL, VAVARAMBALAM, POTHENCODE P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.R.T.PRADEEP SRI.J.ROBINSON** ## **RESPONDENT/:** **THE MANAGING DIRECTOR** **KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM-695 004.** **BY ADVS.** **SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN.** **SRI.JOHN MATHEW SC KERALA STATE ROAD TRANSPORT CORPORATION SRI.P.C.CHACKO SC KERALA STATE ROAD TRANSPORT CORPN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.01.2019, ALONG WITH MACA.2609/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos. 2621 & 2609 of 2016** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY ,THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940** **MACA.No. 2609 of 2016** **AGAINST THE AWARD IN OPMV 2405/2006 of ADL.MOTOR ACCIDENTS CLAIM TRIBUNAL-IV THIRUVANANTHAPURAM DATED 22-04-2016** ## **APPELLANT/PETITIONERS:** **1 ABDUL LATHEEF(DIED), REPRESENTED BY SHYLA BEEVI, W/O ABDUL LATHEEF, SAKEER MANZIL, VAVARAMBALAM, POTHENCODE P.O, THIRUVANNATHAPURAM.** **2 SAKEER,RESIDING AT SAKEER MANZIL, VAVARAMBALAM, POTHENCODE P.O, THIRUVANNATHAPURAM.** **3 SHEHANA, RESIDING AT SAKEER MANZIL, VAVARAMBALAM, POTHENCODE P.O, THIRUVANNATHAPURAM.** **4 ASUMA BEEVI,RESIDING AT SAKEER MANZIL, VAVARAMBALAM, POTHENCODE P.O, THIRUVANNATHAPURAM.** **BY ADVS.SRI.R.T.PRADEEP SMT.M.BINDUDAS** ## **RESPONDENT/:** **THE MANAGING DIRECTOR,KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM 695 004.** **BY ADV.SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.01.2019, ALONG WITH MACA.2621/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos. 2621 & 2609 of 2016** **3** ## JUDGMENT These two appeals have been preferred from the common award dated 26.04.2016 in OP(MV) No.2405 and 2410 of 2006 on the files of the Additional Motor Accident Claims Tribunal-IV, Thiruvananthapuram. The appellants are the petitioners in the respective claim petitions. Compensation awarded by the Tribunal is sought to be enhanced for the reason that the same is unjust and unreasonable. 2. Sri.R.T. Pradeep, the learned counsel advanced arguments on behalf of the appellants and Sri.P.C. Chacko, the learned Standing Counsel for Kerala State Road Transport Corporation, advanced arguments on behalf of the sole respondent in the respective appeals. For the sake of convenience the parties to the respective appeals shall be referred to hereinafter as petitioners and the respondent. 3. Before adverting to the contentions advanced by the respective counsel, this Court finds it appropriate to have a discussion in brief about the facts of the case : One Mr.Abdul Latheef was riding a motor cycle bearing **MACA.Nos. 2621 & 2609 of 2016** **4** registration No. KL-01/AJ-2780 from Kazhakuttom to Kulathoor along with his wife as pillion rider, on 05.09.2006. When the motor cycle reached at Kazhakuttom By-pass junction, a KSRTC bus bearing registration No.KL-15/5858 dashed it and thereby both Mr.Abdul Latheef and his wife sustained serious injuries. They were rushed to Medical College Hospital, Thiruvananthapuram and treated there as inpatient. The wife of Sri.Abdul Latheef, was shifted from Medical College Hospital to S.R. Hospital, Pothencode after 40 days' inpatient treatment. Sri.Abdul Latheef succumbed to the injuries after undergoing inpatient treatment at Medical College Hospital, Thiruvananthapuram for about 86 days. Alleging that the driver of the KSRTC bus bearing registration No.KL-15/5858 has caused the accident by driving it in a rash and negligent manner and seeking for a total sum of Rs.19,00,000/- and Rs.2,00,000/respectively as compensation for the loss sustained due to the death of Sri.Abdul Latheef and for the personal injury sustained by his wife claim petitions as above had been preferred respectively by the surviving legal heirs of Abdul Latheef and the wife personally before the Tribunal. The owner of the KSRTC bus **MACA.Nos. 2621 & 2609 of 2016** **5** was arrayed as sole respondent in both the claim petitions. The sole respondent had filed written statements in both the claim petitions. 4. The sole respondent had filed written statements in both the claim petitions before the Tribunal disputing the age, occupation, the injury sustained, the treatment undergone and the monthly income of the deceased as well as his wife. The plea of the petitioners that the accident was occurred due to the rash and negligent driving of the KSRTC bus by its driver, was also denied. 5. The Tribunal tried both the claim petitions together and a common award was passed arriving at a sum of Rs.1,09,700/- as compensation in claim petition filed as O.P.(MV) No.2410/06. The sole respondent was directed to deposit the said sum together with interest at the rate of 9% per annum from the date of the claim petition till the date of realisation, with proportionate costs. In claim petition filed as O.P.(MV) No.2405/06, a sum of Rs.9,62,700/- was awarded by the tribunal as compensation and the sole respondent was directed to deposit the same with interest at 9% per annum from the date of the claim petition till **MACA.Nos. 2621 & 2609 of 2016** **6** the date of realisation, with proportionate costs. The petitioners in O.P.(MV) No.2405/06 and the sole petitioner in O.P.(MV) No.2410/06 were aggrieved by the quantum of compensation awarded as above by the Tribunal and accordingly approached this court in the above appeals challenging the same. 6. The contention of Sri.R.T. Pradeep, the learned counsel appearing for the petitioner in MACA No.2609/16 was that the monthly income of the deceased for the purpose of calculation of compensation was fixed by the Tribunal as Rs.4,000/-. According to him, 30% of the monthly income was also added to the monthly income so fixed in consideration of future prospects and 1/4[th] was deducted therefrom in consideration of the personal expenditure likely to be incurred by the deceased, had he been alive. According to him, the fixation of monthly income as above is incorrect and unjust, since the accident was occurred in the year 2006. Accordingly fixation of a higher sum as monthly income and calculation of compensation for loss of dependency on the basis of the modified monthly income is sought. The further contention of the learned counsel was that claim for compensation towards bystander expenses was declined by the **MACA.Nos. 2621 & 2609 of 2016** **7** Tribunal and only meagre sums were awarded as compensation under various other heads. The learned counsel has also urged that the monthly income of Rs.3,000/- fixed for arriving at compensation in MACA No.2410/06 is also on the lower side. Challenges were also raised against the amount awarded as compensation under other heads. 7. Per contra, Sri. P.C.Chacko, the learned Standing Counsel on behalf of the sole respondent in both the appeals has contended that just and reasonable compensation was awarded by the Tribunal and interference is strictly uncalled for. It is also contended by the learned counsel based on the Constitutional Bench decision of the Apex Court in **National Insurance Co.Ltd.** **v. Pranay Sethi** [2017 (4) KLT 662(SC)] that the Tribunal ought not to have added 30% to the monthly income in consideration of future prospects but only 20%. 8. In view of the rival contentions advanced by the respective counsel as above, this court ventured to have a critical analysis of the evidence on record. The petitioners in both the claim petitions failed to mount the witness box to tender oral evidence. The evidence on record is strictly confined to **MACA.Nos. 2621 & 2609 of 2016** **8** documents marked in evidence as Exts.A1 to A11. Absolutely no materials are placed on record to establish the age, occupation and monthly income of the deceased as well as the injured in the respective claim petitions. The certified copy of the postmortem certificate is available in evidence as Ext.A4 and the age of the deceased is noted therein as 44 years. Though the petitioners have claimed that the deceased was aged 38 years at the relevant time of his death in the absence of materials to establish the same, relying on Ext.A4, the age was considered as 44 years and the multiplier of 14 applicable to the said age was considered. In a circumstance of total want of evidence, the Tribunal was constrained to fix the monthly income as Rs.4,000/-. The claim of the petitioners that the deceased was getting a monthly income of Rs.5,000/- was not established by relevant materials. Therefore, relying on **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd.** [(2011) 13 SCC 236], where the Apex Court, while arriving at compensation in the case of a Coolie worker had taken Rs.4,000/- as his monthly income, this Court is inclined to consider Rs.5000/- as the monthly income for the reason that proof is there to show his occupation **MACA.Nos. 2621 & 2609 of 2016** **9** as a hair cutter. Addition of 25% towards future prospects being appropriate, that is adopted. As evidenced, the deceased was survived by his wife, two children and mother and therefore, 1/5[th] ought to have been deducted, instead of 1/4[th] , from the monthly income arrived at as above, in consideration of the personal expenditure likely to be met by the deceased, if he was alive at the relevant time. When re-fixed in the manner with the factors as above, the monthly income liable to be considered for the purpose of calculation of compensation will be Rs.5,000/-[(5,000 + 25% of 5,000)-1/5[th] ]. In the re fixation, Rs.8,40,000/- (5,000 x 12 x 14) will be the compensation payable towards loss of dependency. Tribunal had awarded a sum of Rs.6,55,200/- under that head in the impugned award and therefore a sum of Rs.1,84,800/- will be payable additionally. 9. It is established from the evidence on record that Sri.Abdul Latheef was inpatient in the hospital for 86 days prior to his death. As revealed from the impugned award, compensation was declined under the head bystander expenses. The accident being in the year 2006, this Court finds it appropriate to take Rs.150/- per day and therefore the compensation payable under **MACA.Nos. 2621 & 2609 of 2016** **10** the head bystander expenses for inpatient treatment for 86 days will be Rs.12,900/- and it is found payable to the petitioner under the head. 10. Towards extra nourishment, the Tribunal has awarded a sum of Rs.1,000/- against his claim of Rs.10,000/-. This Court is inclined to grant Rs.100/- per day for 86 days, and therefore, the compensation payable under the head extra nourishment will be Rs.8,600/-. When the amount of Rs.1,000/- already awarded by the Tribunal is deducted therefrom, a sum of Rs.7,600/- will be payable additionally. Though Sri.Abdul Latheef was in the hospital with fatal injuries for 86 days and was subjected to various surgical procedures as part of treatment, the Tribunal has granted only Rs.15,000/- towards pain and suffering. Tribunal is highly unjustified in awarding such a meagre sum as compensation towards pain and sufferings. Therefore, this Court is inclined to modify the same as Rs.40,000/-. When Rs.15,000/already awarded by the Tribunal is deducted therefrom, the petitioner will get an additional sum of Rs.25,000/- under that head. In view of the fact that Sri.Abdul Latheef was treated as inpatient for 86 days prior to his death, an additonal sum of **MACA.Nos. 2621 & 2609 of 2016** **11** Rs.4,000/- is also awarded additionally under the head transportation expenses. 11. Rs.25,000/- each is found awarded as compensation respectively under the heads funeral expenses and loss of estate. The Tribunal is unjustified in granting the aforesaid sum as compensation under the respective heads in view of **Pranay Sethi** 's case _supra,_ Rs.15,000/- each being the sum payable under the respective conventional heads, loss of estate and funeral expenses, a deduction of Rs.10,000/- each is made therefrom. 12. Under the head loss of consortium, though a claim for compensation was not made, the Tribunal was pleased to award Rs.1,00,000/-. Under the head loss of love and affection against a nil claim, the Tribunal has also awarded a sum of Rs.1,00,000/-. In view of **Pranay Sethi** 's case _supra_ , loss of consortium payable to the wife of the deceased being Rs.40,000/-, this Court is inclined to grant the same. As already stated, the deceased was survived by his wife, two children and mother. The age of the children are not stated anywhere in the award. However, the claim of the petitioners that petitioners 2 **MACA.Nos. 2621 & 2609 of 2016** **12** and 3 are children of the deceased, are not disputed by the respondent. The respondent has also no case that the children are major and married at the relevant time of death of Sri.Abdul Latheef. Therefore, this Court is inclined to grant Rs.40,000/each to them under the head filial consortium in consideration of loss of parental care on account of the death of their father untimely. The deceased was taken as aged 44 years at the relevant time and in the absence of any evidence to establish that he was the only son of the 4[th] petitioner, this Court is declined to grant any compensation to her under the head parental consortium. When Rs.40,000/- is considered in the case of a spouse and Rs.40,000/- each in the case of two minor children, a total sum of Rs.1,20,000/- is payable under the heads loss of consortium (both spouse and filial). Since the Tribunal has awarded a sum of Rs.1,00,000/-, the petitioners are entitled to get an additional sum of Rs.20,000/- under that head. A sum of Rs.1,00,000/- is seen awarded by the Tribunal under the head loss of love and affection. The Constitutional Bench in **Pranay Sethi** 's case _supra_ is silent on the grant of compensation under that head. However, in the case of **Rajesh and Others v.** **MACA.Nos. 2621 & 2609 of 2016** **13** **Rajbir Singh and others** [ 2013 ACJ 1403 SC] wherein Rs.1,00,000/- awarded by the Tribunal under the head love and affection was declared to have no binding effect. However, in view of **Magma General Isurance Co. Ltd v. Nanu Ram Alias Chuhru Ram & Ors.** [2018 (11) SCALE 247], the Apex Court has maintained Rs.1,00,000/- awarded by the High court under the head loss of love and affection, when the award of the Tribunal was under challenge therein. Therefore, this Court finds justification in awarding compensation also under the head loss of love and affection apart from the grant of compensation under the head loss of consortium. 13. The deceased having been survived by two children, this Court is of the opinion that grant Rs.1,00,000/- as compensation under the head loss of love and affection by the Tribunal is justified and therefore, is maintained. In the re-fixation of compensation as above, the petitioners in O.P.(MV) No.2405/2006 are found entitled to get an additional sum of Rs.2,30,000/-[(1,84,000+8,600+7,600+20,000+25,000+4,000)20,000]. From the aforesaid sum Rs.10,000/- each granted in excess by the Tribunal under the heads loss of estate and funeral **MACA.Nos. 2621 & 2609 of 2016** **14** expenses have to be deducted. Therefore, the petitioner is entitled to get an additional sum of **Rs.2,30,000** /-( **Rupees two** **lakhs thirty thousand only** ). The said amount will carry interest at the rate of 8% per annum from the date of the claim petition till the date of realisation. The parties are not entitled to any costs. 14. In MACA No.2621 of 2016, the monthly income of the injured, a lady aged 34 years, was fixed by the Tribunal as Rs.3,000/-. The accident being in the year 2006, the fixation of monthly income notionally as Rs.3,000/- is on the lower side. Therefore, this Court is inclined to re-fix the same as Rs.5,000/-. Ext.A7 is the accident cum wound certificate issued from Medical College Hospital, Kollam and it reveals that the petitioner had sustained type III Supra malleolar fracture of both bones of right leg. It is also reported therein that the lower end of the Tibia was exposed. The lady was admitted in the hospital. She had undergone inpatient treatment for 40 days at the hospital. Wound debridement and external fixation were done on 05.09.2006 and she was discharged from the hospital on 24.09.2006. She was again admitted at the hospital in the month of November, 2006 **MACA.Nos. 2621 & 2609 of 2016** **15** and was treated as inpatient for a period of 19 days. She was again admitted in the very same hospital on 16.01.2007 for external fixator removal. She was discharged on 19.01.2007 with advice to continue medication and review thereafter. The further admission was on 17.05.2008 and that was for curettage and nail removal. She was discharged on 19.05.2008 with advice to continue medication and for review after a week. Though these aspects are evidenced from the documents on record, the Tribunal had awarded only a sum of Rs.12,000/- under the head pain and suffering and Rs.17,000/- under the head loss of amenities and enjoyments in life. Though it is evidenced that the lady had inpatient treatment for a period of 40 days, the Tribunal had awarded only a sum of Rs.4,300/- under the head bystander's expenses and Rs.1,000/- under the head extra nourishment. This Court finds the grant of compensation under the respective heads as above, unjust and unreasonable. Therefore, this Court is inclined to re-fix the quantum of compensation payable under the respective heads. With the re-fixed monthly income of Rs.5,000/- taken for a period of six months, the compensation payable under the head loss of **MACA.Nos. 2621 & 2609 of 2016** **16** earning will be Rs.30,000/-.(5,000x6) Rs.15,000/- being the sum awarded by the Tribunal under the head loss of earning, the petitioner is entitled to get Rs.15,000/- additionally. Rs.150/and Rs.100/- respectively have been taken as the daily sum payable under the heads bystander expenses and extra nourishment. Thereafter, the petitioner will get an additional sum of Rs.1,700/- and Rs.3,000/- respectively under those heads. To make the compensation under the head pain and suffering just and reasonable, this Court is inclined to award a sum of Rs.40,000/- Accordingly, petitioner is entitled to get Rs.28,000/additionally under that head. Towards compensation for loss of amenities and enjoyments in life, this Court is inclined to modify the sum by raising it to Rs.25,000/-. Therefore, the petitioner is entitled to get Rs.8,000/- additionally under that head. The Tribunal has awarded a sum of Rs.500/- alone under the head transportation expenses. When viewed in the backdrop of the injuries and treatment, the petitioner might have expended a higher sum on transportation. The amount of Rs.500/- awarded by the Tribunal being highly unreasonable, this Court is inclined to grant Rs.8,000/- and therefore, Rs.7,500/- is payable under **MACA.Nos. 2621 & 2609 of 2016** **17** that head, additionally. 15. Yet another contention was raised by the learned counsel that against the percentage of disability assessed by an individual doctor as 15% as evidenced by Ext.A11 certificate, the Tribunal had adopted only 10% for the purpose of calculation of compensation towards disability. According to the counsel, the adoption of 10% by the Tribunal for calculation purpose is unjust and unreasonable. This Court had a glance at Ext.A11. It is found that the certificate was issued not by the Medical Board but by an individual doctor. Several reasons have been stated in Ext.A11 for adoption of 15% disability and those include the shortening of right leg by 1 cm. It is true that the disability assessed was not the whole body disability. The nature of the injury sustained by the petitioner and the period for which she was subjected to treatment were already discussed with. She had undergone inpatient treatment for about 40 days spreading through period 2006-2008. Therefore, this Court finds the adoption of 10% by the Tribunal as the permanent disability of the petitioner for the purpose of calculation of compensation unjust. 15% being the percentage of permanent disability **MACA.Nos. 2621 & 2609 of 2016** **18** assessed by the Orthopediac surgeon and Ext.A11 was issued on the basis of the said assessment, this Court is inclined to take it as such and to re-fix the quantum of compensation payable under the head permanent disability on it's basis. The Tribunal has taken 16 as the multiplier by considering the age of the petitioner as 38 years. Undoubtedly the multiplier is incorrectly applied by the Tribunal. 15 being the appropriate multiplier to be taken in the case of a lady aged 38 years, this Court is inclined to adopt the same in the place of 16. When compensation is calculated with the modified monthly income of Rs.5,000/-, . permanent disability as 15% and multiplier as 15, the petitioner will get a sum of Rs.1,35,000/-. Rs.57,600/- having been awarded by the Tribunal as per the impugned award, a sum of Rs.77,400/- is payable under that head additionally. Therefore, in the re-fixation as above, the petitioner will be entitled to get a sum of **Rs.1,40,600** /- ( **Rupees one lakh fourty thousand six hundred only** ) [(77,400 + 28,000 + 8,000 + 7,500 + 1,700 + 3,000 + 15,000] in addition. The said amount will carry interest at the rate of 8% per annum from the date of the claim petition till the date of realisation. **MACA.Nos. 2621 & 2609 of 2016** **19** In the result, both appeals stand allowed in part. Petitioners are found entitled to get an additional sum of **Rs.2,30,000** /-( **Rupees two lakhs thirty thousand only** ) in MACA No.2609/16 and petitioner in MACA No.2621/16, the petitioner is entitled to get **Rs.1,40,600/-** ( **Rupees one lakh fourty thousand six hundred only** ) as compensation. The respective sums will carry interest as stated above. The parties shall bear their respective costs in the appeals. **Sd/-** **MARY JOSEPH** **JUDGE** ttb