The Chief Secretary to the Government of Kerala and Others v. M. Sankaranarayanan Pillai and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH &** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 23RD DAY OF FEBRUARY 2017/4TH PHALGUNA, 1938** **AS.NO. 352 OF 2001 (E) ----------------------AGAINST THE JUDGMENT IN O.S. NO.824 OF 1994, 1[ST] ADDITIONAL SUB COURT, THIRUVANANTHAPURAM** ## **APPELLANT(S)/DEFENDANTS 1 TO 3:** **--------------------------------** **1. THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE COMMISSIONER, SECRETARY TO GOVERNMENT, FOREST DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **3. THE COMMISSIONER, SECRETARY TO GOVERNMENT, TOURISM DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** ## **BY SENIOR GOVERNMENT PLEADER SHRI B. JAYASURYA** **RESPONDENT(S)/PLAINTIFFS 1 & 2 AND DEFENDANT NO.4: --------------------------------------------------** ***1. M.SANKARANARAYANA PILLAI, INDIRA BHAVAN, ERAZHE SOUTH, BR. P.O., CHETTIKULANGARA P.O., MAVELIKARA, ALAPPUZHA NOW RESIDING AT TC 49/270(1) KRISHNA SABHA, KAMALESWARAM, MANACAUD P.O., THIRUVANANTHAPURAM - 9. (DIED)** **2. USHA MADHAVAN, NO.22-C, 'SRINIVAS', KEMAL NAGAR, MANACAUD P.O., THIRUVANANTHAPURAM.** **3. RAJI RADHAKRISHNAN, 'KARTHIKA' DECENT JUNCTION, KOLLAM.** **AS.NO. 352 OF 2001 (E)** **4. G. RAVINDRAN, S/O.GNANADAS, BOAT DRIVER, OFFICE OF THE WILD LIFE PRESERVATION OFFICE, THEKKADY P.O. (VIA) KUMALI, IDUKKI DISTRICT.** ***IT IS RECORDED THAT 1[ST] RESPONDENT SANKARAWNANRAYANA PILLAI EXPIRED 24.10.2007 AND THAT RESPONDENTS 2 AND 3 ARE HIS LEGAL REPRESENTATIVES VIDE ORDER DATED 27.07.2009 ON I.A. NO.2226 OF 2009.** **BY ADVOCATES SHRI NAIR AJAY KRISHNAN SHRI NAGARAJ NARAYANAN SHRI BIJU BALAKRISHNAN SHRI K.MOHANAKANNAN** **THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 20.02.2017, THE COURT ON 23.02.2017 DELIVERED THE FOLLOWING:** # **V.CHITAMBARESH &** ## **SATHISH NINAN, JJ.** **==================== A.S. No.352 of 2001** **==================== Dated this the 23[rd] day of February, 2017** ## **J U D G M E N T** ## **SATHISH NINAN, J.** The defendants in a suit for recovery of damages are the appellants. 2. Plaintiffs 1 and 2 are the mother-in-law and father-in-law of deceased Padma Ramesh Babu, wife of their deceased son Ramesh Babu. Ramesh Babu and his wife Padma Ramesh Babu had a child, Master Raj Shankar. On 25.12.1990 Ramesh Babu, Padma Ramesh Babu and their child died in a boat accident at the reservoir area of Peppara dam at Vithura in Thiruvananthapuram District. The boat capsized as a result of which several persons including the three above referred were drowned. According to the ## **A.S. No.352 of 2001** -: 2 :- plaintiffs the accident occurred due to the carelessness of the 4[th] defendant who was the driver of the boat. He allowed more persons on board than the capacity of the boat. It was further alleged that adequate safety equipments were not provided in the boat. The defendants in their written statement contended that at about 5 O' Clock in the evening the tourists including the deceased family insisted for returning without delay and refusing to wait for the boat of the Kerala Water Authority to come hastenly boarded the ill-fated boat. It was contended that there was no negligence or carelessness on the part of the 4[th] defendant in driving the boat and that the accident occurred due to the conduct of the deceased and others who insisted for boarding the boat in question which did not have that much capacity. The suit was filed claiming compensation on account of the death of **A.S. No.352 of 2001** ## -: 3 :- Padma Ramesh Babu and Ramesh Babu. 3. Though the defendants filed written statement refuting the plaint claim, no evidence was adduced on their side. The court below on considering the evidence found that the accident occurred as a result of the negligence of the 4[th] defendant who was an employee of defendants 1 to 3 and that the defendants are liable to pay damages. 4. Heard the learned Senior Government Pleader for the appellants and the learned counsel for the respondents. 5. The court below took note of the fact that the evidence of the 2[nd] plaintiff as PW1 remained unchallenged and that no evidence was adduced on the part of the defendants. The court below also took note of the fact that though Ext.A1 notice was issued to the defendants preceding the suit, no reply was received. Apart from the above, it is to **A.S. No.352 of 2001** -: 4 :- be noted that in the written statement filed by defendants 1 to 3 it is stated that on inspection conducted by the Chief Inspector of Boards, Ernakulam, it was found that there was a hair crack at the bottom of the vessel at the back corner, though according to him the water intrusion through the crack will not result in sinking of the boat. Even if that be so, it is a patent negligence on the part of the defendants in not properly maintaining the boat. Be that as it may, going by the evidence on record and especially in the absence of any evidence to contradict the evidence of the plaintiffs, the finding of the court below that the accident occurred due to the negligence of the 4[th] defendant is liable to be confirmed. 6. Coming to the claim for damages, the court below found that there is no evidence regarding the income of the deceased Ramesh Babu. The court below **A.S. No.352 of 2001** -: 5 :- took note of the fact that wife of Ramesh Babu, Padma Ramesh Babu, was aged 30 years at the time of the accident and that she was working as a clerk in the Federal Bank. Though PW1 gave oral evidence regarding the salary of the deceased Ramesh Babu, since it was not supported by any material, the same was not accepted by the court below. The claim on account of the death of Ramesh Babu is not to be considered in the present suit since claiming compensation under the said head, the plaintiffs have already filed O.S. No.71 of 1996, which is decreed. So we are concerned only with the claim on account of the death of Padma Ramesh Babu. 7. As regards the claim for compensation and the mode of calculation of just compensation, principles have been laid down by the Apex Court in **Sarla Verma v. DTC** ([2009] 6 SCC 121). For arriving at the compensation, the relevant considerations ## **A.S. No.352 of 2001** -: 6 :- are: age of the deceased, income of the deceased and the number of the dependants. While considering the income of the deceased, deductions to be made towards income tax and personal living expenses of the deceased are to be considered. Multiplier is to be fixed with reference to the age of the deceased. The Apex Court in the said judgment has laid down the steps to be followed while determining the compensation in the case of deceased. The first step in the process is to ascertain the multiplicand, i.e., determining the annual income of the deceased after making the deductions as noticed supra. While deducting the expenses, the court will have to take into consideration the number of dependant members. If the number of the dependant family members ranges from 4 to 6, deduction to be made is 1/4[th] . So also, as regards future prospects, the Apex Court has laid down as a rule of thumb, that if the deceased **A.S. No.352 of 2001** -: 7 :- had a permanent job and was below 40 years of age, an addition of 50% of the actual salary could be made. The second step is to ascertain the proper multiplier. Appropriate multiplier has been identified by the Apex Court in paragraph 40 of the said judgment. The loss of dependency being the third step in the calculation is arrived at by multiplying the multiplicand with the multiplier. To the said amount, a further amount ranging from Rs.5,000/- to Rs.10,000/- could be added as compensation for loss of estate. Going by the table of multiplier as indicated by the Apex Court though in the case of Padma Ramesh a multiplier of 17 could have been adopted, the court below has taken a multiplier of 15 only. From the total income, deduction of 1/3[rd] has been made. While calculating the income, the court below found that claim of the plaintiffs regarding the salary drawn by their son **A.S. No.352 of 2001** -: 8 :- Ramesh Babu could not be accepted. The court below has fixed the salary of Ramesh Babu and Padma Ramesh at Rs.3,000/- each per month. As noticed earlier, the claim for the death of Ramesh Babu could not be considered in the present suit since claiming compensation under the said head, the plaintiffs have already filed O.S. No.71 of 1996 which was decreed for an amount of Rs.7 lakhs. Further, there is no evidence in the present case regarding the income of deceased Ramesh Babu. Therefore, for the purpose of calculation of compensation in the present case only the income of deceased Padma Ramesh Babu could be taken into account, which the court has fixed as Rs.3,000/-. As held by the Apex Court, 50% increase towards future prospects could be added which make the multiplicand at Rs.4,500/-. Therefore, the annual salary comes to Rs.54,000/-. Since the number of dependants is more than 3, **A.S. No.352 of 2001** -: 9 :- deduction from the income is to be fixed as 1/4[th] . Deducting 1/4[th] of the same, the annual income would be Rs.40,500/-. Since Padma Ramesh Babu was aged only 30 years at the time of death, the proper multiplier to be adopted is 17. Therefore multiplying Rs.40,500/- with 17, the amount of compensation would come to Rs.6,88,500/-. An amount of Rs. 10,000/- is awarded towards loss of estate. Thus the total compensation payable is Rs.6,98,500/-. The compensation awarded in the present case is Rs.7 lakhs. The difference being negligible, we do not propose to interfere with the judgment of the court below. We uphold the amount of compensation awarded by the court below for the reasons indicated. However, we feel that the rate of interest decreed by the court below is excessive and it needs to be re-fixed at 6% per annum. In the result, the Appeal Suit is allowed in ## **A.S. No.352 of 2001** -: 10 :- part. The decree of the court below is modified to the extent of re-fixing the rate of interest at 6% per annum from the date of suit till date of realisation. The judgment and decree of the court below will stand confirmed in all other respects. Sd/- **V.CHITAMBARESH, JUDGE.** **Sd/SATHISH NINAN, JUDGE.** vsv /true copy/ P.S. To Judge