Sudhasan Veliyathparambil & Others v. KSRTC & Anr.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943** **MACA NO. 1939 OF 2014** **AGAINST THE ORDER/JUDGMENT IN OPMV 624/2009 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL, IRINJALAKUDA** ## **APPELLANTS/PETITIONERS:** 1 SUDHASAN VELIYATHPARAMBIL HOUSE, NAYATTUKUNDU DESOM, VELLIKULANGARA VILLAGE, CHOKKANA P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2 CHANDRIKA W/O. SUDHASAN, -DO- -DO3 HAREESH S/O. SUDHASAN, -DO- -DOBY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH 1 MANAGING DIRECTOR, KSRTC, TRIVANDRUM 695023. 2 MURALEEDHARAN N.K. S/O. KRISHNANKUTTY, NARANGAPARAMBIL HOUSE, THONNUR KARA P.O., CHELAKKARA, THRISSUR-680610. BY ADVS. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. ALEX ANTONY SEBASTIAN P.A. ## **RESPONDENTS/RESPONDENTS:** ## **OTHER PRESENT:** SRI.ALEX ANTONY SEBASTIAN P.A-R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1939 OF 2014 2 ## **JUDGMENT** The appellants are the claimants in OP(MV) No.624/2009 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act), claiming compensation on account of the death of the son of the appellants/claimants 1 and 2 and the brother of the 3[rd] appellant. 2. It is alleged that the deceased Gireesh, on 14/12/2008 at about 8.05pm, while travelling as pillion rider on motor cycle bearing registration No.KL-7/H 9435 through NH-47 (it was mistakenly stated in the award that he was the rider of the motor cycle) and reached near Perambra Petrol Pump, KSRTC bus bearing No. KL-15-5485 driven by the 2[nd] respondent hit the motor cycle resulting the rider of the motorcycle as well as the deceased Gireesh, to fell down resulting in fatal injuires. 1[St] respondent is the owner of the vehicle. He succumbed to injuries within half an hour. The appellants claimed total compensation of Rs.9,05,000/(which is limited to Rs.6,00,000/-). 3. Before the Tribunal, respondent Nos.1 and 2 filed MACA NO. 1939 OF 2014 3 separate written statement denying negligence on the part of the driver of KSRTC and attributing negligence against the rider of motor cycle. 4. This case was jointly tried with OP(MV) No.622/2009 and the 1[st] petitioners in both petitions were examined as Pws 1 and 2. Exts.A1 to A13 were marked. The 1[st] appellant/claimant the father of the deceased in this case was examined as PW2. The Tribunal on evaluating the evidence and other materials allowed the claim petition in part and awarded compensation of Rs.6,04,000/-. 2[nd] respondent was held responsible for the accident and first respondent was directed to pay the amount. 5. Dissatisfied with the award passed by the Tribunal, the appellants/claimants (herein after be referred as claimants) came up before this Court in appeal under various grounds stated in the Memorandum of appeal. 6. Notice was issued to the respondents. 1[St] respondent appeared through the Standing Counsel, Adv.Alex Antony. 7. Heard the learned Counsel for the appellants as well as the learned Standing Counsel for the 1[st] respondent-KSRTC. Lower MACA NO. 1939 OF 2014 4 ## court records were called for and perused. 8. In this case, compensation awarded by the tribunal under various heads are as follows: |SI<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded (in<br>rupees)|Basis vital details<br>in a nut-shell| |---|---|---|---|---| |1|Funeral expenses|25,000.00|25,000.00|| |2|Transportation<br>expenses|2,000.00|1,000.00|| |3|Damage to clothings|1,000.00|500.00|| |4|Extra nourishment|2,000.00|500.00|| |5|Pain and suffering|50,000.00|10,000.00|| |6|Loss of benefit to the<br>legal representatives<br>of the deceased|5,67,000.00|5,67,000.00|5250x12x18x1/2| |7|Loss of estate|50,000.00||| |8|Loss of expectation of<br>life|50,000.00||| |9.|Loss of gratuitous<br>service|50,000.00||| |10.|Loss of love and<br>affection|50,000.00||| |11|Compensation<br>for<br>shock and anxiety|25,000.00||| ||TOTAL|9,05,000.00<br>limited to<br>Rs.6,00,000/-|6,04,000/-|Rs.6,04,000/-<br>along with<br>interest at the<br>rate of 7.5% p.a<br>from 15.6.09 till<br>realisation| 9. According to the learned counsel for the appellants, the deceased was a skilled welder and his income though claimed as Rs.4,000/- per month there is evidence to substantiate the MACA NO. 1939 OF 2014 5 occupation. But, the Tribunal fixed the income notionally as Rs.3,500/-. That according to the learned counsel is very low. He would contend that being a skilled welder the monthly income ought to have been taken at least as per the dictum in _**Ramachandrapa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ **[(2011) 13 SCC 236].** The learned counsel also would contend that compensation awarded under other heads are also very low and hence seeks for enhancement on other heads also. 10. The learned Standing Counsel for the 1[st] respondent would contend that a just and reasonable compensation has already been awarded by the Tribunal under various heads. It is also contended that petitioners specifically alleged in the claim petition that the income of the deceased is Rs.4,000/- and PW2 also deposed that the income of the deceased is Rs.4,000/-. Ext.A5 salary certificate also has been produced on the side of the claimants. As per the salary certificate the monthly income of the deceased was Rs.4,000/- per month. So no amount than that is claimed is to be considered. MACA NO. 1939 OF 2014 6 11. The learned counsel for the appellant in this context bring to my attention _**Chameli Devi and Others v. Jivrail Mian and others**_ **[2019 KHC 5352] : [2019 ACJ 3011],** wherein the deceased was a carpenter and the accident occurred on 2/1/2001. His notional income was taken as Rs.1,500/- by the tribunal and the High Court taken the income as Rs.3,000/- per month and the Apex court taking into account the fact that the accident occurred on 2/1/2001 the deceased was a carpenter his income was taken as Rs.5,000/- per month. The learned counsel also relied on _**Minu Rout and another v Satya Pradyumna Mohapatra and others [2013 KHC 4701] : [2013 (10) SCC 695].**_ In that case accident occurred on 8/11/2004, the deceased was a Driver. His monthly income was claimed as Rs.5,000/-. Inspite of that the Apex court taken the income of the deceased as Rs.6,000/- per month as the job of the driver is a skilled job. The learned counsel further relied on _**Gopinathan A and Others v Afzal Basha and another [2020(3) KHC 666] : [2020 (6) KLT SN 4]**_ the accident occurred on 10/10/2004 and the notional income of housewife is fixed as 4,500/-. MACA NO. 1939 OF 2014 7 12. The deceased in this case was aged 20 years at the time of the accident on 14/12/2008 and he was a skilled welder. Ext.A12 is the competence certificate issued from Indian Institute of Welding Technology. So inspite of the fact that monthly income claimed and deposed as Rs.4,000/- by PW2, being a skilled welder as per the settled principles above cited the monthly income of the deceased is taken as Rs.6,500/. 13. In **Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802)** the Apex Court laid down the principles to be followed in determining the quantum of compensation in a case of death out of Motor Vehicle accident. It is held that just compensation is adequate compensation which is fair and equitable on the facts and circumstances of the case to make good the loss sustained by the victim of accident as far as money can do. 14. In **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** constitution Bench of Apex Court held that Section 168 of the Act deals with the concept of “just compensation” and that has to be determined on the MACA NO. 1939 OF 2014 8 foundation of fairness, reasonableness and equitable on acceptable legal standard because such determination can never be with arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. 15. The learned counsel for the appellants further claims for 40% enhancement towards future prospects as has been held in _**National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)**_ ]. In _**Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [(2009) 6 SCC 121]**_ the Apex Court adopted an addition of 50% of actual salary to the income of the deceased towards future prospects where the deceased was below 40 years and the said addition was reduced by 30% if the age of the deceased was 40 – 50 years and there was no addition where the age of deceased is more than 50 years in cases where deceased are salaried persons having permanent job. 16. But in Pranay Sethi's case the Apex Court though accepted the findings in Sarla Verma's case in fixing the multiplier made some variance with regard to the grant of future prospects MACA NO. 1939 OF 2014 9 in restricting the same to apply to persons having actual salary and having a permanent job and it was found that there is no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. It is also found that to follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust and the determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. It is also laid down in Pranay Sethi's case that with respect to self-employed or persons with fixed salary when the deceased was below 40 years an addition of 40% can be granted and in the case of between 40 – 50, an addition of 25% and with respect to persons between 50 – 60 years, the addition has been fixed as 10%. The established income also provided as the income minus tax component. 17. In the present case, the claim of the counsel for 40% enhancement towards future prospects of the deceased is in MACA NO. 1939 OF 2014 10 compliance with the law laid down in Pranay Sethy. So the monthly income of the deceased can be computed as Rs.6500+2600 (40% of Rs.6,500/-)=Rs.9,100/-. The total monthly income would be Rs.9,100/- from that 1/2 to be deducted towards personal and living expenses of the deceased being a bachelor ie. Rs.4,550/- (Rs.9,100x1/2). So monthly contribution to family would be Rs.4,550/- (9,100-4,550). The multiplier as per Sarla Verma approved in Pranay Sethi is '18'. So the total amount towards dependency would be Rs.4,550x12x18=Rs.9,82,800/-. Deducting the amount already awarded the balance would be Rs.9,82,8005,67,000=Rs.4,15,800/-. 18. Next aspect is regarding the compensation under conventional heads. In **Pranay Sethi,** Constitution Bench laid down a thumb rule that the reasonable figures under conventional heads namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/respectively. It is also held that the said amounts should be revisited with enhancement at the rate of 10% in a span of three MACA NO. 1939 OF 2014 11 years. Judgment in **Pranay Sethi** is on 31.10.2017. So, as on date, three years from that date already expired. 19. _**Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024]**_ is a case of accident occurred on 09.05.2013. Apex Court, following the principles in **Pranay Sethi** , held that claimants are entitled to get 10% enhancement on conventional heads, i.e Rs.16,500/- each towards loss of estate and funeral expenses and Rs.44,000/towards spousal consortium. 20. In **Magma General Insurance Co.Ltd v. Nanu Ram Alias Chuhru Ram & Ors. : 2018 (18) SCC 130: 2018 ACJ 2782** , a two Judge Bench of the Apex Court held that 'consortium' in legal parlance is a 'compendious' term encompasses 'spousal consortium', 'parental consortium' and 'filial consortium'. 'Filial consortium' is the right of parents to compensate in the case of an accidental death of a child. The greatest agony for a parent is to lose their child during their lifetime. Hence first and second claimants, the parents are entitled to get Rs.88,000/- (Rs.44,000/each). Tribunal already awarded Rs.25,000/- towards funeral MACA NO. 1939 OF 2014 12 expenses. So deducting that amount, claimants are entitled to get Rs.8,000/- (Rs.33,000 – Rs.25,000). So under the conventional heads claimants are entitled to get enhanced compensation of Rs.88,000 + Rs.8,000 = Rs.96,000/-. Hence, claimants are entitled to realise enhanced compensation of **Rs.5,11,800/** -[Rs.4,15,800 + Rs.96,000]. In the result appeal allowed. The claimants are allowed to realise enhanced compensation of **Rs.5,11,800/-** (Rupees five lakhs eleven thousand eight hundred only) with interest at 7.5% from the date of petition till realisation. The 1st respondent shall satisfy enhanced compensation granted in this appeal together with interest within a period of two months from the date of receipt of certified copy of this judgment. The claimants shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the 1[st] respondent, within one month from the date of receipt of certified copy of this judgment. ## **Sd/-** ska/jsr **M.R.ANITHA JUDGE**