Solly Thomas and Others v. M.V. George and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 14[TH] DAY OF JUNE 2022 / 24TH JYAISHTA, 1944 MACA NO. 818 OF 2009** **AGAINST THE AWARD IN OP(M.V) 707/2000 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA/I ADDL. M.A.C.T.** ## **APPELLANTS/PETITIONERS:** 1 SOLLY THOMAS, AGED 41, W/O.LATE THOMAS SAMUEL, KIZHAKKEVILA PUTHENVEEDU, PONGALADY MURI, PANDALAM THEKKEKKARA VILLAGE, ADOOR TALUK, PATHANAMTHITTA DIST. 2 BROMITAH THOMAS (MINOR), AGED 11, S/O.LATE THOMAS SAMUEL,, KIZHAKKEVILA PUTHENVEDU, PONGALADY MURI,, PANDALAM THEKKEKKARA VILLAGE, ADOOR TALUK,, PATHANAMTHITTA DIST. 3 DELNA THOMAS (MINOR), AGED 9, D/O.LATE THOMAS SAMUEL, KIZHAKKEVILA PUTHENVEEDU, PONGALADY MURI, PANDALAM THEKKEKKARA VILLAGE, ADOOR TALUK, PATHANAMTHITTA DIST. 4 V.SAMUEL, AGED 71, F/O.LATE THOMAS SAMUEL, KIZHAKKEVILA PUTHENVEEDU, PONGALADY MURI, PANDALAM THEKKEKKARA VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. 5 MARIAMMA SAMUEL, AGED 59, M/O.LATE THOMAS SAMUEL, KIZHAKKEVILA PUTHENVEEDU, PONGALADY MURI, PANDALAM THEKKEKKARA VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. [PETITIONER 2 & 3 ARE REPRESENTED BY THEIR MOTHER AND GUARDIAN 1ST PETITIONER] BY ADVS. SRI.K.JAYAKUMAR SRI.N.AJITH SMT.GEETHA P.MENON **M.A.C.A No.818 of 2009** 2 SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR ## **RESPONDENTS IN M.A.C.A./RESPONDENTS IN O.P.(M.V):** 1 M.V.GEORGE, ANJANAMELIL HOUSE, CHATHANIKALPARA, MANAKADU MURI AND VILLAGE,, THODUPUZHA. 2 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. *ADDL.R3 NATIONAL INSURANCE COMPANY LTD. THIRUVANANTHAPURAM, DIVISIONAL OFFICE, P.B.NO.434, ST.JOSEPHS BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM, REPRESENTED BY ITS DIVISIONAL MANAGER. *ADDL.3RD RESPONDENT IS IMPLEADED AS PER ORDER DATED 14/01/2022 IN I.A.2/2021 IN MACA 818/2009. BY ADVS. P.G.JAYASHANKAR SRI.P.C.CHACKO(PARATHANAM) SRI.JOY GEORGE, SC, K.S.R.T.C. P.K.RESHMA (KALARICKAL) REVATHY P. MANOHARAN S.RAJEEV ALEX ANTONY SEBASTIAN P.A. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.818 of 2009** 3 ## **JUDGMENT** Petitioners in O.P.(M.V) No.707/2000 on the file of Motor Accidents Claims Tribunal, Pathanamthitta are the appellants herein, where the original respondents before the Tribunal are the respondents. 2. Heard the learned counsel for the appellants as well as the respondents in detail. 3. Brief facts of the case: The appellants would urge that on 28.05.2000 at about 9:40 a.m., motor cycle bearing Reg.No.KL-1/L-92 ridden by one Thomas Samuel along the Pandalam-Adoor M.C.Road was knocked down by the KSRTC bus bearing Reg. No.KL-15/2811 (TN 777) driven by the 1[st] respondent in a rash and negligent manner, near Paranthal, Pallimukku junction. Consequently Thomas Samuel was thrown off the motor cycle and he sustained fatal injuries. He was ## **M.A.C.A No.818 of 2009** 4 immediately rushed to N.S.S. Medical Mission Hospital, Pandalam. But he died on the way to that hospital. According to the appellants, the accident occurred solely due to the rash and negligent driving of the bus by the 1[st] respondent. 4. Respondents 1 and 2 were declared ex- parte by the Tribunal. 5. 3[rd] respondent Insurance Company filed written statement and denied the accident as well as negligence. Quantum of compensation also was opposed while admitting policy to the KSRTC bus involved in the accident. 6. The Tribunal recorded evidence confining to Exts.A1 to A11(a) on the part of the appellants. No evidence let in by the respondents. Finally the Tribunal awarded Rs.7,25,000/- as compensation with 7.5% interest. 7. In this matter, the appellants claimed the monthly income of the deceased at ## **M.A.C.A No.818 of 2009** 5 Rs.10,000/-. In order to substantiate the said contention, Exts.A6, A7 and A8 are given emphasis. Akbar Travels of India as per letter dated 08.06.2007, marked as Ext.A6 certified that the deceased, Thomas Samuel, was working as Counter Supervisor from 24.10.1998 to 05.05.2000 and was earning Rs.10,000/- per month. Exts.A7 and A8 are documents issued to certify the said job and efficiency of the deceased. Acting on these documents, the Tribunal fixed Rs.5,000/- as the income. 8. The learned counsel for the appellants would urge that in view of Exts.A6 to A8, income should have been fixed at Rs.10,000/per month. 9. Per contra, the learned counsel for the Insurance Company would submit that since the accident is of the year 2000, even applying _**Ramachandrappa v. Manager, Royal Sundaram**_ _**Alliance Insurance Company Ltd.**_ : **(2011) 13 SCC** **236,** the amount fixed by the Tribunal at ## **M.A.C.A No.818 of 2009** ## 6 Rs.5,000/- is on higher side. It is to be borne out from Ext.A6 that the deceased worked for a period of 2½ years in Akbar Travels of India, and accordingly, it was certified that his monthly income was Rs.10,000/- per month. But nobody examined to prove the monthly income as such. Therefore, I am not inclined to re-fix the monthly income in excess of Rs.5,000/-. However, following the ratio in _**National Insurance Company Ltd. v. Pranay Sethi**_ **: (2017) 16 SCC 680,** 40% addition is liable to be given since the deceased was aged below 40 years at the time of accident. Therefore, the income for calculating 'loss of dependency' to be re-fixed and is calculated as; 5,000+40% = 7,000x12x17x¾ = 10,71,000/- Out of which, Rs.6,80,000/- was granted by the Tribunal. Therefore, **Rs.3,91,000/-** more is entitled by the appellants. 10. Apart from the above, the learned **M.A.C.A No.818 of 2009** 7 counsel for the appellants canvassed increase under the conventional heads following the ratio in _**Pranay Sethi's**_ case (supra). At the same time, the learned counsel for the Insurance Company canvassed deduction of the amounts granted under the heads 'pain and sufferings' and 'love and affection' following the ratio in _**United India Insurance Co. Ltd v.**_ ## _**Satinder Kaur**_ **@ Satwinder Kaur and others : 2020 (3) KHC 760.** 11. Having appraised the contentions in this regard, I am inclined to grant **Rs.10,000/-** more under the head 'loss of estate' in addition to Rs.5,000/- granted by the Tribunal. Similarly, towards 'funeral expenses' **Rs.10,000/-** more is granted in addition to Rs.5,000/- granted by the Tribunal. Towards 'loss of consortium' **Rs.1,05,000/-** more is granted in addition to Rs.15,000/- granted by the Tribunal, since the appellants 1 to 3 are ## **M.A.C.A No.818 of 2009** 8 together entitled to get Rs.1,20,000/- @ Rs.40,000/- each, following the ratio in _**Pranay Sethi's**_ case (supra). The 4[th] and 5[th] appellants are not entitled to get filial consortium since the deceased was married following the ratio in _**Satinder Kaur's**_ case (supra). 12. Considering the submission made by the learned counsel for the Insurance Company, **Rs.25,000/-** (Rs.10,000 + 15,000) granted under the heads 'pain and sufferings' and 'loss of love and affection' is deducted following the ratio in _**Satinder Kaur's**_ case (supra). 13. In the result, this appeal is allowed. It is held that the appellants are entitled to get Rs.12,16,000/- as compensation out of which Rs.7,25,000/- was granted by the Tribunal and the balance amount of **Rs.4,91,000/-** (Rupees Four Lakh Ninety One Thousand Only) is granted as enhanced compensation with the same rate of ## **M.A.C.A No.818 of 2009** **==> picture [7 x 9] intentionally omitted <==** interest awarded by the Tribunal, payable by the additional 3[rd] respondent Insurance Company from the date of petition till the date of deposit or realisation. The Insurance Company is directed to deposit the same in the name of the appellants in the proportion fixed by the Tribunal within two months. On deposit, the appellants are entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww