Vamadevan and others v KSRTC, Venu, The Manager, New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938** **MACA.No. 3071 of 2016 ()** **------------------------AGAINST THE AWARD IN OP(MV) 739/2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,PUNALUR DATED 12-07-2016** ## **APPELLANT(S)/PETITIONERS:** - **------------------------** **1. VAMADEVAN, H/O. RETNAMMA, SMITHA BHAVAN, KANNAMKOTTU MURI, VETTIKKAVALA, KOTTARAKKARA.** **2. V.GURUPRASAD, S/O. RETNAMMA, SMITHA BHAVAN, KANNAMKOTTU MURI, VETTIKKAVALA, KOTTARAKKARA.** **3. BABU P.V, S/O. RETNAMMA, SMITHA BHAVAN, KANNAMKOTTU MURI, VETTIKKAVALA, KOTTARAKKARA.** **4. SMITHA V.R, D/O. RETNAMMA, SMITHA BHAVAN, KANNAMKOTTU MURI, VETTIKKAVALA, KOTTARAKKARA.** ## **BY ADV. SRI.ANCHAL C.VIJAYAN** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. M.D., KSRTC, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM - 695 025.** **2. VENU, S/O. SANKARAN, KANNADI VEEDU, NEAR SNDP GURUMANDIRAM, AVITTATHUR DESAM, KADUVASSERI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT - 680 683.** **3. THE MANAGER, NEW INDIA ASSURANCE CO. LTD, 2ND FLOOR, REMA PLAZA, NEAR AYYAPPAN COIL ROAD, SS COIL RD, THAMPANOOR,THIRUVANANTHAPURAM, PIN - 695 001.** **R1 BY ADV. SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. R3 BY ADVS. SRI.RAJESH THOMAS** **SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.3071 of 2016 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of October, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** This appeal is preferred against the judgment and award dated 12.7.2016 in O.P.(M.V.)739/2011 passed by the Motor Accidents Claims Tribunal, Punalur. The claim petition was filed by the widower and children of one Retnamma who lost her life in a motor vehicle accident occurred on 12.8.2009. On that day while she was standing on the eastern side of the MC Road near Policodu junction a KSRTC bus bearing registration No.KL-15/7187 (RAK-187), driven by the second respondent rashly and negligently, knocked her down. She sustained severe injuries and later, succumbed to them. It is, interalia, raising such allegations that the said claim petition seeking a compensation of Rs.5 lakhs, was filed under Section 166 of the Motor Vehicles Act. The Tribunal granted a total compensation of Rs.4,33,000/- with interest at the rate of 9% per annum from the date of petition till realization along with a cost of M.A.C.A.No.3071 of 2016 2 Rs.4,000/-. It is seeking enhancement of the compensation that the captioned appeal has been preferred. 2. We have heard Sri. Anchal C. Vijayan, the learned counsel appearing for the appellants, Sri. P.C. Chacko, the learned counsel appearing for the first respondent and also Sri. A.A. Ziyad Rahman, the learned counsel appearing for the third respondent insurance company. Since the liability to indemnify the first respondent is not in dispute, we do not think it necessary to issue notice to the second respondent who was driving the vehicle at the time of the accident. Having heard the learned counsel on both sides we are of the view that this appeal can be disposed of at the admission stage itself. 3. The main grievance of the appellant is that though in terms of the decision of the Hon'ble Apex Court in **Rajesh v. Rajbir Singh** [ **2013 (3) KLT 89 (SC)]** in an application for compensation for death filed under Section 166 of the M.V.Act, the surviving spouse is entitled to get a minimum of Rs.1 lakh towards loss of consortium the M.A.C.A.No.3071 of 2016 3 Tribunal granted only an amount of Rs.40,000/- under that head. It is the further submission that the Tribunal went wrong in not granting an amount claimed towards damage to clothing. The learned counsel further submitted that the Tribunal fixed the monthly income of the deceased only at Rs.4,000/- disregarding the specific statement in the claim petition that the deceased was a tailor by profession and was earning Rs.5,000/- per month. 4. Per contra, the learned counsel appearing for the respondents submitted that there is absolutely no merit in the aforesaid contentions raised by the appellants. It is the submission that towards loss of consortium only an amount of Rs.15,000/- was claimed by the appellants and the Tribunal granted more than the amount claimed and in such circumstances, legally there cannot be any grievance for the appellants in that regard. In short, the contention of the learned counsel appearing for respondents 1 and 3 is that the Tribunal has granted just compensation in this case and therefore no appellate interference is called for. M.A.C.A.No.3071 of 2016 4 5. We have carefully considered the rival contentions and also gone through the impugned award. True that the appellants claimed only an amount of Rs.15,000/- towards loss of consortium and the Tribunal has granted Rs.40,000/-. But the question is can that be a reason for declining the compensation to which they are entitled to by virtue of the the decision in **Rajesh** 's case (cited supra), wherein the Hon'ble Apex Court held that in a claim for compensation for death filed under Section 166 of the M.V.Act, towards loss of consortium, the surviving spouse is entitled to a minimum of Rs.1 lakh in the absence of any evidence for a higher compensation. In such circumstances, merely because the appellants had claimed only Rs.15,000/- cannot be a reason for not granting the amount to which the first appellant is entitled by virtue of a binding decision of the Hon'ble Apex Court. In such circumstances, we are inclined to modify the quantum of compensation upwardly. Consequently, under the head loss of consortium an amount of Rs.60,000/- is granted in M.A.C.A.No.3071 of 2016 5 addition to the compensation granted by the Tribunal. Towards damage to clothing, the appellant claimed only an amount of Rs.1,000/-. Going by the nature of the accident there can be no doubt with respect to the fact that the dresses worn by the deceased at the time of the accident must have been damaged. In such circumstances, there is absolutely no reason for declining the said claim. Accordingly, Rs.1,000/- is granted under that head. The learned counsel further contended that the fixation of Rs.4,000/- as the monthly income of the deceased is liable to be interfered with. We are of the view that the correctness of the said fixation has to be looked into, in the light of the decision of the Hon'ble Apex Court in **Lata Wadhwa v. State of Bihar [AIR 2001 SC 3218]** and the decision of this court in **Krishnadas v. Henry Joseph [2011 (4) KLT 716]** rendered relying on **Lata Wadhwa** 's case. Though in the claim petition it was stated that the appellant was a tailor by profession, no evidence was adduced to substantiate the said contention. It is to be noted that no M.A.C.A.No.3071 of 2016 6 oral evidence was also adduced in this case. In such circumstances, it can only be taken that the deceased was only a housewife and for calculation purpose only the services rendered by her can be equated in terms of money. In the light of the two decisions referred supra it cannot be said that the Tribunal went wrong in fixing the monthly income in this case as Rs.4,000/-. In fact, in those cases in respect of house-wives aged between 24-59 the Hon'ble Apex Court took the monthly income, for calculation purpose only at Rs.3,000/-. Since the accident involved in this case occurred much later to the accidnet involved in those cases viz., in the year 2009, we do not find any reason to hold such fixation as irrational or illegal. On going through the schedule of compensation it is evident that towards compensation for pain and suffering and loss of love and affection, the entire amount claimed was granted by the Tribunal. In such circumstances, we are of the view that the appellants are entitled to get enhancement of compensation only under the aforesaid two heads. In the M.A.C.A.No.3071 of 2016 7 light of the discussion as above, this appeal is allowed and the appellants are awarded an additional compensation of Rs.61,000/- (Rupees sixty one thousand only). It is made clear that the first appellant alone will be entitled to get the enhanced amount of Rs.61,000/-. The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The third respondent insurer is directed to deposit the said amount along with interest within a period of one month from the date of receipt of a copy of this judgment. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg/