Valliyamma v. The Managing Director, KSRTC

1 MACA No.2352 of 2009 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 13[TH] DAY OF DECEMBER 2021 / 22ND AGRAHAYANA,** **1943** **MACA NO. 2352 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1796/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA APPELLANT/S:** VALLIYAMMA,D/O.LATE CHAKKALAKKOOTTAM AYYAPPAN CHERUKUNNU, PERAMBRA PO, THRISSUR DIST. BY ADV SRI.V.BINOY RAM ## **RESPONDENT/S:** 1 THE MANAGING DIRECTOR, K.S.R.T.C. THIRUVANANTHAPURAM 2 JOHNSON, S/O.PONNARI DEVASSY PACHALIPURAM, KALLOOR PO,, AMBALLOOR (VIA), THRISSUR DIST. BY ADVS. SRI.JOY GEORGE, SC, K.S.R.T.C. SRI.P.C.CHACKO(PARATHANAM) ALEX ANTONY SEBASTIAN P.A. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.2352 of 2009 ## **C.S.DIAS, J. ====================== MACA No.2352 of 2009** ## **====================== Dated this the 13[th] day of December, 2021.** ## **JUDGMENT** The appellant was the second petitioner in OP(MV) 1796/2004 on the file of the Motor Accident Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant along with her mother - first petitioner before the Tribunal - had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Ayyappan (deceased), the father of the appellant and husband of the first petitioner. It was their case that, on 18.6.2004, while the deceased was walking along the National Highway Road at Perambra, a bus bearing registration No.KL-15/5018 (bus), driven by the second respondent in a rash and negligent manner, hit the 3 MACA No.2352 of 2009 deceased. The deceased sustained serious injuries and was treated at the St.James Hospital, Chalakkudy. Unfortunately, he lost his life on 22.6.2004 due to the injuries sustained in the accident. The deceased was aged 90 years at the time of the accident and was employed as a Security in Cherukunnu Temple. He was earning a monthly income of Rs.1,500/-. The bus was owned by the first respondent. The appellant and her mother were the dependents of the deceased. Hence, the appellant and her mother claimed a compensation of Rs.1,10,000/- from the respondents. 3. The respondents had filed a joint written statement admitting the accident. However, they contended that the accident occurred due to the negligence of the deceased. 4. The appellant and her mother produced and marked Exts A1 to A5 in evidence. The respondents did not let in any evidence. 4 MACA No.2352 of 2009 5. During the pendency of the claim petition, the first petitioner died. The second petitioner/appellant was recorded as the sole legal representative of the deceased first petitioner. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to recover from the first respondent an amount of Rs.58,000/- with interest and cost. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the second petitioner is in the appeal. 8. Heard: Sri.Binoy Ram.V, the learned Counsel appearing for the appellant/second petitioner and Sri.Alex Antony, the learned counsel appearing for the first respondent/owner. 9. The sole question that arises for consideration in the appeal is whether the quantum of compensation 5 MACA No.2352 of 2009 awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 10. Ext A2 charge-sheet filed by the Kodakara Police in crime No.215/2004 proves that the accident occurred due to the negligence of the second respondent. The respondents have not let in any evidence to discredit Ext A2 charge-sheet. Indisputably, the first respondent was the owner. Therefore, the first respondent is vicariously liable to pay the compensation. ## **Income** 11. The appellant had claimed that the deceased was working as a Security in Cherukunnu Temple and he was earning a monthly income of Rs.1,500/-. However, the Tribunal fixed the notional monthly income of the deceased at Rs.1,250/-. 12. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13** 6 ## MACA No.2352 of 2009 **SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 13. Following the yardstick in the aforecited decision and considering the fact that the appellant had claimed that the deceased was earning an amount of Rs.1,500/- per month and the accident occurred in the year 2004, I refix the notional monthly income of the deceased at Rs.1,500/-. ## **Multiplier** 14. The deceased was aged 90 years at the time of the accident/death. In the light of the law laid down in ## **Sarla Verma v. Delhi Transport Corporation [(2009)** **6 SCC 121]** , the relevant multiplier to be adopted is '5'. ## **Personal living expenses of the deceased** 15. As per Ext A5 family membership certificate, the appellant and her mother were the dependents of the deceased. They were two in number. Therefore, one third of the compensation has to be deducted 7 MACA No.2352 of 2009 towards the personal living expenses of the deceased. **Loss of dependency** 16. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.1,500/-, the multiplier at '5' and after deducting one third of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency at Rs.60,000/-, instead of Rs.50,000/awarded by the Tribunal. ## **Conventional heads of claim** 17. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** has held that the dependents of the deceased are entitled for compensation under the conventional heads viz., funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- respectively. 18. It is also observed in **Pranay Sethi** (supra) 8 MACA No.2352 of 2009 that the conventional heads of compensation have to be enhanced every three years by 10%. 19. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd. [LL 2021 SC 588]** and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another [LL 2021 SC 717]** , the Hon'ble Supreme Court has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accidents. Thus, it is to be interpreted and inferred that the escalation of 10% is to be awarded after three years from the pronouncement of **Pranay Sethi** (supra), which was rendered in the year 2017, and not for accidents that occurred three after 2017. years Therefore, I hold that the appellant is entitled to an amount of Rs.16,500/- towards funeral expenses, Rs.16,500/- towards loss of estate and Rs.44,000/- 9 MACA No.2352 of 2009 towards loss of consortium. 20. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the aforecited precedents, I hold that the appellant/second petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI<br>.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Pain and sufferings|5,000/-|5,000/-| |2|Funeral expenses|3,000/-|16,500/-| |3|Loss of estate|Nil|16,500/-| |4|Loss of consortium|Nil|44,000/-| |5|Loss of dependency|50,000/-|60,000/-| ||Total|58,000/-|1,42,000/-| Even though the appellant had claimed only an amount of Rs.1,10,000/-, following the ratio in **Pranay Sethi** (supra), I award compensation under the 10 MACA No.2352 of 2009 conventional heads to the appellant. Therefore, the compensation has exceeded the amount claimed in the claim petition. This course is permissible in the light of the law laid down in **Nagappa vs. Gurudayal Singh [ 2003 (1) KLT 115(SC) and Rajesh vs. Rajbir Singh [ 2013 (3) KLT 89 (SC)].** In the result, the appeal is allowed by enhancing the compensation by an amount of **Rs.84,000/-** (Rupees Eighty Four Thousand only) with interest on the enhanced compensation at the rate of 7% per annum from the date of claim petition till the date of deposit and proportionate costs. The first respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the enhanced compensation to the appellant after 11 MACA No.2352 of 2009 deducting her liability, if any, towards balance courtfee and in accordance with law. Sd/- sks/13.12.2021 **C.S.DIAS, JUDGE**