Sobanakumari and others v. Managing Director, KSRTC, Kerala

1 MACA.No.1794 OF 2013 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942** ## **MACA.No.1794 OF 2013** **AGAINST THE AWARD IN OPMV 1709/2006 DATED 23-02-2013 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA** ## **APPELLANT/S:** **1 SOBANAKUMARI AGED 31 YEARS W/O.SUNILKUMAR, MANACKAL VEEDU, THOTTABHAGOM MURI, KAVIYOOR VILLAGE, THIRUVALLA, PATHANAMTHITTA DISRICT. 2 AKHILA S.NAIR AGED 14 YEARS MANACKAL VEEDU, THOTTABHAGOM MURI, KAVIYOOR VILLAGE, THIRUVALLA, PATHANAMTHITTA DISRICT, REPRESENTED BY THE 1ST PETITIONER. 3 ANANTHU S.NAIR AGED 11 YEARS MANACKAL VEEDU, THOTTABHAGOM MURI, REPRESENTED BY THE 1ST PETITIONER. 4 THANKAMMA G. AGED 68 YEARS MANACKAL VEEDU, THOTTABHAGOM MURI, KAVIYOOR VILLAGE, THIRUVALLA, PATHANAMTHITTA DISRICT.** **BY ADV. SRI.K.N.RADHAKRISHNAN(THIRUVALLA)** ## **RESPONDENT/S:** **MANAGING DIRECTOR, KSRTC KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM, PIN 695001.** **R1 BY ADV. P.C.CHACKO(PARATHANAM)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 3-03-2021, THE COURT ON 03-03-2021 DELIVERED THE FOLLOWING:** 2 MACA.No.1794 OF 2013 ## **C.S.DIAS, J. ====================== MACA No.1794 of 2013 ====================== Dated this the 3[rd] day of March, 2021** ## **JUDGMENT** The petitioners in OP(MV) No.1709/2006 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta are the appellants. The respondent in the claim petition is the respondent in the appeal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of G.Sunil Kumar, husband of the first petitioner, father of the second and third petitioners and son of the fourth petitioner. 3. The case of the petitioners, in brief, in the claim petition was that on 29.11.2006 while G.Sunil Kumar (deceased) was riding a scooter bearing registration No.RJ- 3 MACA.No.1794 OF 2013 14-44 M-1637 through Mallappally – Thiruvalla road, a bus bearing registration No.KL-15/3245 owned by the respondent had hit the scooter. The deceased sustained serious injuries and was taken to hospital. He succumbed to the injuries on 1.12.2006. The deceased was a driver by profession earning a monthly income of Rs.6,000/-. The petitioners are dependents of the deceased. They claimed a compensation of Rs.7,00,000/- 4. The respondent filed a written-objection refuting the allegations in the claim petition. It was alleged that the accident occurred due to the rash and negligent driving of the deceased. The amount sought for is excessive and exorbitant. 5. Exts A1 to A7 were produced and marked in evidence by the petitioners. Neither party adduced any oral evidence. 6. The Tribunal, after appreciating the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the respondent to pay the petitioners an amount of Rs.5,91,570/- with interest @ 4 MACA.No.1794 OF 2013 7.5% per annum from the date of original petition till the date of realization along with proportionate costs. 7. The comparative table of compensation that was claimed by the petitioners and that was awarded by the Tribunal is as follows:- |SI<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded by<br>the<br>Tribunal(in<br>rupees)| |---|---|---|---| |1|Loss of Dependency|8,15,000/-|4,80,000/-| |2|Transport to hospital|1,000/-|1,000/-| |3|Damage<br>to<br>clothings|1,000/-|1,000/-| |4|Funeral expenses||10,000/-| |5|Medical expenses|33,000/-|14,370/-| |6|Bystanders<br>expenses||200/-| |7|Pain and suffering<br>endured<br>by<br>deceased|25,000/-|10,000/-| |8|Compensation for<br>loss of estate|50,000/-|5,000/-| |9|Loss of love and<br>affection|50,000/-|60,000/-| |10|Loss of consortium|25,000/-|10,000/-| ||Total|10,00,000/<br>- limited to<br>7,00,000/-|5,91,570/-| 5 MACA.No.1794 OF 2013 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in the appeal. 9. Heard the learned counsel appearing for the appellants/petitioners and the learned counsel appearing for the respondent/respondent. 10. The sole question that emanates for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable. 11. 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 non-violation of the principle of equitability. 12. From Exts A1 to A4 documents, it is established 6 MACA.No.1794 OF 2013 and proved that the accident occurred due to the negligence on the part of the bus owned by the respondent. Ext A5 postmortem certificate proves that the deceased succumbed to the injuries in the accident. Undisputedly, the deceased was aged 39 years at the time of accident. Although the petitioners had claimed that the deceased was a driver by profession earning an amount of Rs.6,000/per mensem, the Tribunal fixed the notional income of the deceased at Rs.3,750/-. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004 at the rate of Rs.4,500/-. Similarly, in **Syed Sadiq v.** **Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735],** the Hon'ble Supreme Court has fixed the notional income of a vegetable merchant in the year 2006 at the rate of Rs.6,500/-. 14. Following the parameters laid down by the Hon'ble Supreme Court in the aforecited decisions, I am of 7 MACA.No.1794 OF 2013 the considered opinion that the notional income of the deceased can safely be fixed at Rs.6,000/- as claimed by the petitioners in the claim petition as the accident occurred in the year 2006. Accordingly, I fix the notional income of the deceased at Rs.6,000/-. 15. On a reappreciation of the impugned award, it is seen that the Tribunal has adopted the multiplier at 16. In light of the decision in **Pranay Sethi** (supra), the correct multiplier is 15. ## **Future prospects** 16. The Tribunal has failed to award any amount towards future prospects as per the law laid down in **Pappu Deo Yadav Vs. Naresh Kumar and others [AIR** **2020 SC 4424]** and a host of prior judicial pronouncements by the Hon'ble Supreme Court. In view of the fact that the deceased was aged 39 years at the time of accident and the multiplier is 15, the petitioners are entitled to future prospects @ 40%. **Loss of consortium and loss of love and affection** 17. In **Magma General Insurance Co.Ltd v. Nanu** 8 MACA.No.1794 OF 2013 **Ram alias Chuhru Ram and others – [2018 KHC 6697]** , the Hon'ble Supreme Court has held that the dependents of the deceased are entitled to loss of consortium. In the present case, undisputedly, the first petitioner is the wife, the second and third petitioners are the children and the fourth petitioner is the mother of the deceased. In the said circumstances, the petitioners are entitled for spousal consortium, parental consortium and filial consortium, respectively. Accordingly, the amount of Rs.10,000/- awarded under the head 'loss of consortium' and Rs.60,000/- awarded under the head 'loss of love and affection' have to be enhanced to an amount of Rs.1,60,000/-, i.e., Rs.40,000/- each to the petitioners. ## **Funeral expenses and Loss of estate** 18. The Tribunal has only awarded an amount of Rs.10,000/- under the head 'funeral expenses' and Rs.5,000/- under the head 'loss of estate'. In view of the law laid down in **Pranay Sethi** (supra), the petitioners are entitled for an enhancement of compensation under the said heads at Rs.15,000/- each. Accordingly, I also enhance 9 MACA.No.1794 OF 2013 the compensation under the said heads. ## **Pain and sufferings** 19. It is seen that the Tribunal has awarded only an amount of Rs.10,000/- towards pain and sufferings of the deceased. The deceased was hospitalised for two days. In the said circumstances, I am of the firm opinion that, especially since the deceased passed away, he is entitled for an amount of Rs.20,000/- under the head 'pain and sufferings'. ## **Loss of dependency** 20. In view of the refixation of the notional income of the deceased from Rs.3,750/- to Rs.6,000/-, the petitioners are also entitled for enhancement of compensation under the head loss of dependency. ## **Other heads of claim** 21. With respect to other heads of claim, viz., transport to hospital, bystander expenses and medical expenses, I find that the Tribunal has awarded reasonable and just compensation to the petitioners. 22. On an overall appreciation of the pleadings, 10 MACA.No.1794 OF 2013 materials on record and the law laid down by the Hon'ble Supreme Court in the aforecited decisions, I am of the considered opinion that the petitioners are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |SI<br>N<br>o|Head of claim|Amount<br>claimed<br>(in<br>rupees)|Amount<br>awarded<br>by the<br>Tribunal(i<br>n rupees)|Amounts<br>modified and re<br>calculated by<br>this Court<br>(in rupees)| |---|---|---|---|---| |1|Loss of Dependency<br>along with future<br>prospects|8,15,000/<br>-|4,80,000/-|11,34,000/-| |2|Transport to hospital|1,000/-|1,000/-|1,000/-| |3|Damage to clothings|1,000/-|1,000/-|1,000/-| |4|Funeral expenses||10,000/-|15,000/-| |5|Medical expenses|33,000/-|14,370/-|14,370/-| |6|Bystanders<br>expenses||200/-|2,000/-| |7|Pain and suffering<br>endured<br>by<br>deceased|25,000/-|10,000/-|20,000/-| |8|Compensation for<br>loss of estate|50,000/-|5,000/-|15,000/-| |9|Loss of love and<br>affection|50,000/-|60,000/-|1,60,000/-| |10|Loss of consortium|25,000/-|10,000/-|| ||Total|10,00,000/<br>- limited<br>to<br>7,00,000/-|5,91,570/-|13,62,370/<br>-| 11 MACA.No.1794 OF 2013 23. The petitioners had claimed an amount of Rs.10,00,000/- as compensation, which was limited to Rs.7,00,000/-. The Tribunal by the impugned award, awarded an amount of Rs.5,91,570/- as compensation to the petitioners. On a reappreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court, it is seen that the petitioners are entitled to an amount of Rs.13,62,370/-, which is just and reasonable compensation. There is no embargo in this Court awarding more compensation than the amount that was claimed in the claim petition in light of the law laid down by the Hon'ble Supreme Court in **Nagappa vs. Gurudayal Singh [ 2003** ## **(1) KLT 115(SC)].** In the result, the appeal is allowed. The appellants are entitled for an enhanced compensation of Rs.7,70,800/(Rupees Seven Lakh Seventy Thousand Eight Hundred only) along with interest @ of 7.5% p.a on the enhanced compensation from the date of petition till the date of realisation with proportionate costs. The respondent shall deposit the additional compensation granted in this appeal, 12 MACA.No.1794 OF 2013 before the Tribunal with interest and proportionate costs, within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability of the appellants/petitioners towards balance court fee and legal benefit fund on the enhanced compensation, which shall be deposited before the Tribunal. The Tribunal shall disburse the additional compensation to the appellants/petitioners, in accordance with law. ## **Sd/-** **C.S.DIAS** **JUDGE** **SKS/3.3.2021**