The Managing Director, Divisional Controller, KSRTC, Chamrajnagar Division v. Alikutty and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 11[TH] DAY OF AUGUST 2021 / 20TH SRAVANA, 1943** **MACA NO. 2120 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 282/2019 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, WAYANAD, KALPETTA** ## **APPELLANT/2ND RESPONDENT:** THE MANAGING DIRECTOR, DIVISIONAL CONTROLLER, KSRTC CHAMARAJNAGAR DIVISION, CHAMARAJNAGAR DISTRICT BY ADV SHEJI P.ABRAHAM ## **RESPONDENTS/PETITIONERS/RESPONDENT NO.1:** 1 ALIKUTTY,AGED 53 YEARS, S/O. MUHAMMED, MALANTHOTTAM HOUSE, KRISHNAGIRI, WAYANAD673 591 (FATHER OF DECEASED NOUSHAD) 2 JAMEELA, AGED 48 YEARS, W/O.ALIKUTTY, MALANTHOTTAM HOUSE, KRISHNAGIRI, WAYANAD673 591 3 JASNA C.,AGED 25 YEARS, D/O. HAMZA, CHERAL PEEDIKAYIL HOUSE, THRIKAIPETTA (PART), THRIKKAIETTA, WAYANAD DISTRICT, KERALA-673 577 (WIFE OF DECEASED NOUSHAD) 4 AMAN HASHMI, AGED 5 YEARS, (MINOR) DATE OF BIRTH 04.03.2014, S/O. NOUSHAD, REP. BY MOTHER JASNA.C, D/O. HAMZA, CHERAL PEEDIKAYIL HOUSE, THRIKKAIPETTA (PART) THRIKKAIPETTA, WAYANAD DISTRICT-673 577 (SON OF DECEASED NOUSHAD) 5 NANJUNDASWAMY, AGED 40 YEARS, S/O.NAJAIAIAH, 53 RACHAMBALLI KAGALAVADI, CHAMARAJNAGAR, (DRIVER OF KSRTC BUS NO.KA-10-F0263) **OTHER PRESENT:** **MACA NO. 2120 OF 2021 2** **==> picture [246 x 8] intentionally omitted <==** THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MACA NO. 2120 OF 2021 3** ## **JUDGMENT** The appellant was the 2[nd] respondent in OP(MV) No.282 of 2019 on the file of the Motor Accidents Claims Tribunal, Wayanad. The respondents 1 to 4 in the appeal were the petitioners and the 5[th] respondent was the 1[st] respondent before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition u/S.166 of the Motor Vehicles, 1988, claiming compensation on account of the death of Noushad (deceased) – who was the son of the petitioners 1 and 2, the husband of the 3[rd] petitioner and the father of the 4[th] petitioner. They had averred in the claim petition that, on 23.02.2019, while the deceased was riding his motorcycle bearing Reg.No.KL40/D-8327 from **MACA NO. 2120 OF 2021 4** Pathiripalam to Krishnagiri through the Sulthan Bathery – Calicut National Highway, a bus belonging to the 2[nd] respondent (appellant) bearing Reg.No.KA-10F-0263 (bus) driven by the 1[st] respondent in a rash and negligent manner and at over speed hit the motorcycle. The deceased was thrown on the road and he sustained serious injuries. Even though he was taken to the Government Taluk Hospital, Sulthan Bathery, his life could not be saved. The deceased was a cable TV technician and earning a monthly income of Rs.20,000/-. The petitioners were dependents of the deceased. They claimed a total compensation of Rs.46,00,000/- from the respondents, which was limited to 30,00,000/-. 3. The 1[st] respondent filed a written statement admitting that he was a driver of the bus. However, he contented that the accident occurred on account of the ## **MACA NO. 2120 OF 2021 5** negligence of the deceased. The 2[nd] respondent filed a written statement admitting that it was the owner of the bus. The 2[nd] respondent also contended that the accident occurred on account of the negligence of the deceased and that the amount of compensation claimed by the petitioners was on the higher side. 4. The 3[rd] petitioner and the employer of the deceased were examined as PWs.1 and 2 and Exts.A1 to A7 were marked in evidence. The respondents did not let in any evidence. 5. The Tribunal by the impugned award, allowed the claim petition, in part, by directing the 2[nd] respondent to pay the petitioners an amount of Rs.29,08,000/- with interest and costs . 6. Aggrieved by the award, the 2[nd] respondent is in appeal. ## **MACA NO. 2120 OF 2021 6** 7. Heard Sri.Sheji P Abraham, the learned counsel appearing for the appellant/2[nd] respondent. 8. The principal grounds of challenge in the memorandum of appeal are: (i) that the monthly notional income of the deceased fixed by the Tribunal at Rs.15,000/- is on the higher side and (ii) that the interest awarded by the Tribunal at 8% is exorbitant. 9. On a perusal of the impugned award and the materials available on record, it is seen that as per Ext.A4 charge sheet filed by the Police, the accident was caused due to the negligence on the 1[st] respondent – the driver of the bus. Admittedly, the appellant/2[nd] respondent was the owner of the bus. Therefore, the appellant is vicariously liable to pay the compensation amount. 10. The petitioners/respondents 1 to 4 had contended that the deceased was a cable TV technician **MACA NO. 2120 OF 2021 7** and earning a monthly salary of Rs.20,000/-. In order to substantiate their contention, they produced Ext.A7 certificate which was proved through PW2, the owner of the cable TV network firm. PW2 categorically testified that the deceased was his staff for last nine years and he was earning an average monthly income of Rs.18,000/-. 11. The Tribunal after considering the age of the deceased, the number of dependents and the statutory deductions, fixed the income of the deceased at Rs.15,000/- per month. It is this fixation made by the Tribunal, that too after considering the oral testimony of PWs.1 and 2 and Ext.A7, that the appellant assails before this Court. 12. On a re-appreciation of the oral testimonies of PWs.1 and 2 and Ext.A7 certificate, I am of the considered opinion that the monthly income of the **MACA NO. 2120 OF 2021 8** deceased fixed by the Tribunal is reasonable and just. There is absolutely no error or illegality in the income fixed by the Tribunal. 13. With regard to the next contention that the rate of interest fixed by the Tribunal at 8% is on the higher side, I find that the Hon'ble Supreme Court in _**Municipal Corporation of Delhi, Delhi v. Uphaar Tragedy Victims Association [(2011) 14 SCC 481]**_ and _**Kishan Gopal and Another v. Lala and others (2014) 1 SCC 244]**_ has held that interest can be fixed @ 9% per annum in a motor accidents claims cases. Therefore, in view of the aforecited decisions, I hold that the said contention is also untenable in law. 14. I do not find any error or illegality in the threadbare appreciation of facts and the law made by the Tribunal particularly with regard to the income and the **MACA NO. 2120 OF 2021 9** rate of interest fixed in the impugned award. 15. On an overall re-appreciation of the materials on record and the impugned award, I do not find any error or illegality warranting interference by this Court in exercise of its appellate jurisdiction. 16. The Hon'ble Supreme Court in _**New India Assurance Company Ltd. v. Krian Singh and others [(2004 AIR SC 4212]**_ has deprecated the practice of insurance companies contesting genuine claims in a routine manner and ragging the parties to court and wasting an enormous time and money. 17. According to me, the principles laid down in _**Kiran Singh**_ (supra) are also applicable to the appellant, which is an instrumentality of state. 18. It is to be borne in mind, the accident occurred on 23,2,2019. It is more than 2 ½ years since the **MACA NO. 2120 OF 2021 10** respondents 1 to 4 have been knocking at the doors of the Courts seeking compensation on account of the death of the bread winner. It is trite law that the Tribunal is permitted to do some guess work and also exercise its discretion to fix the reasonable and just compensation, for which there cannot be any straight jacket formula based on mathematical precision. In _**New India Assurance Company v. Vinish Jain and others [(2018) 3 SCC 619],**_ the Hon'ble Supreme Court has held that if the fixation of compensation is within permissible limits, the courts should normally not interfere with such awards. 19. I find that the Tribunal has judicial exercises of its powers based on the provisions of the Motor Vehicles Act 1988 and the authoritative precedents of the Hon'ble Supreme Court and arrived at the conclusion, I do not **MACA NO. 2120 OF 2021 11** find any justifiable ground in the memorandum of appeal warranting admission of the appeal which only be at wastage of time in a harassment to respondents 1 to 4/petitioners. Following the ratio in _**Kiran Singh**_ (supra), I hold that the appeal is devoid of any merits and does not warranting admission. Therefore, I dismiss the appeal at the threshold. sd/- **C.S.DIAS, JUDGE** pm