Vimala Devi and others v. The Managing Director KSRTC & Ors.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI WEDNESDAY, THE 27TH DAY OF JUNE 2012/6TH ASHADHA 1934 MACA.No. 2002 of 2008 (F) -------------------------------OPMV.2880/2002 of M.A.C.T.,ERNAKULAM ---------------- APPELLANTS/PETITIONERS 1 TO 4: -------------------------------------- 1. VIMALA DEVI, W/O.LATE DALEEP KUMAR, RESIDING AT JITAS VILLAGE, HANUMANPURA P.O. JHUNJHUNU DISTRICT, RAJASTHAN STATE. 2. MOHIT DADARWAL, - S/O.LATE DALEEP KUMAR, RESIDING AT JITAS VILLAGE HANUMANPURA P.O., JHUNJHUNU DISTRICT RAJASTHAN STATE. 3. ROHIT DADARWAL, S/O.LATE DALEEP KUMAR, RESIDING AT JITAS VILLAGE, HANUMANPURA P.O. JHUNJHUNU DISTRICT, RAJASTHAN STATE. 4. NITIN DADARWAL, S/O.LATE DALEEP KUMAR, RESIDING AT JITAS VILLAGE, HANUMANPURA P.O. JHUNJHUNU DISTRICT, RAJASTHAN STATE. (APPELLANTS 2 TO 4 ARE MINORS AND HENCE REPRESENTED BY NATURAL GUARDIAN & MOTHER) BY ADVS.SRI.T.K.KOSHY SRI.K.P.PAULOSE RESPONDENT(S)/RESPONDENTS 1 TO 3: --------------------------------------------- 1. THE MANAGING DIRECTOR, K.S.R.T.C., - TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM. 2. J.JOSEPH DASAN, K.S.R.T.C. DRIVER, - KOLLAM DEPOT, KOLLAM. MACA.No. 2002 of 2008 (F) -2- 3. THE NATIONAL INSURANCE CO.LTD., REPRESENTED BY DIVISIONAL MANAGER DIVISIONAL OFFICE, ST.JOSEPH BUILDING, VAZHUTHACAUD THIRUVANANTHPURAM - 14. BY ADV. SRI.JOE KALLIATH BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC BY ADV. SRI.JOY GEORGE, SC, K.S.R.T.C. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A No.2002 of 2008 -----------------------------------------------Dated this the 27[th] day of June, 2012 ## **JUDGMENT** ## _Pius C. Kuriakose, J_ The legal heirs of one Daleep Kumar, Leading Radio Operator (Tactical) with Indian Navy who lost his life in a road traffic accident caused by the Driver of a KSRTC bus duly insured with the third respondent Insurance Company being his widow, three minor children and dependent father complains that the Motor Accidents Claims Tribunal did not award them adequate compensation. Their claim was for a total amount of ` 30 lakhs and the learned Tribunal under various heads awarded to them only ` 9,50,000/-. According to the appellants this is grossly inadequate. 2. We have heard the submissions of Sri.T.K.Koshy, the learned counsel for the appellants and those of the learned Standing Counsel for the contesting Insurance Company. M. A. C. A No.2002 of 2008 -2- 3. Sri.Koshy would draw our attention to Exts.A10 and A11 certificates pertaining to the salary which was drawn by the deceased Daleep Kumar and also the career prospects which Sri.Daleep Kumar had in the Indian Navy. He drew our attention also to the Salary Certificate produced in this appeal along with I.A.2387/08 which shows that the net salary drawn by the deceased was ` 6,182/-. He drew our attention also to the evidence adduced by PW2 and PW3, the superior officers of the deceased Daleep Kumar who gave evidence to the effect that Sri.Daleep Kumar was a very brilliant and promising officer and had every chance of getting promotions and continuing in the Indian Navy on promoted posts. He submitted that there is gross inadequacy in the dependency compensation arrived at by the learned Tribunal. He further submitted that on other heads also the learned Tribunal did not award adequate compensation to the appellants. 4. Per contra, the learned Standing Counsel for the M. A. C. A No.2002 of 2008 -3- Insurance Company would support the impugned award. According to the learned Standing Counsel reasonable compensation has been awarded by the learned Tribunal. The learned counsel submitted that the deceased Daleep Kumar had already put in eleven years of service in Indian Navy and there was no guarantee that he will be continuing to serve the Indian Navy beyond fifteen years. According to the learned Standing Counsel, there is no justification for increasing the compensation. 5. We have given our anxious consideration to the rival submissions addressed at the Bar. We have carefully gone through the impugned award. We have applied our mind to various items of evidence to which our attention was drawn by the learned counsel during his submissions. We are convinced that there is inadequacy in the compensation awarded by the Tribunal to the appellants, particularly the compensation awarded towards loss of dependency. We find that for arriving at the dependency compensation the M. A. C. A No.2002 of 2008 -4- learned Tribunal relied on Ext.A10 certificate and deducted 20% from the figure mentioned therein (` 8348/-) towards compulsory deductions. Apart from that a further deduction of one third was also made towards personal expenses of the deceased. This according to us was not proper. A careful scrutiny of Ext.A10 will show that the deceased could take home ` 6,600/- every month. According to us, considering the future prospects and imbibing the principle laid down by the Supreme Court in the judgment in Sarla Verma v. Delhi Transport Corporation (2010(2) KLT 802 SC) we have to make additions. We are however not inclined to add 50% for the future prospects as it is seen that the deceased had already put in eleven years of service in the Indian Navy and his continuance was subject to review upon his completion of fifteen years. True there is evidence from the mouth of PWs.1 and 2 superiors that the deceased Daleep Kumar was one of the promising officers. Even then the imponderables which may happen and may be considered at the time of M. A. C. A No.2002 of 2008 -5- review i.e upon completion of fifteen years service cannot be lost sight of. Considering such imponderables we are adding only 25%. This means that for the purpose of arriving at dependency compensation, we are adopting monthly income of the deceased as ` 8,250/-. As we are adding only 25% we are inclined to determine the dependency compensation adopting the multiplier of 17 which is applicable to the persons coming in the age group of the deceased. We cannot justify the action of the learned Tribunal in having deducted one third. We find that number of dependents are four. The proper deductions to be made is only one fourth. When proper deductions are made as above and the dependency compensation is re-calculated adopting the monthly income of ` 8,250/- it will be seen that the dependency compensation to which the appellants become eligible will come to ` 12,62,250/-. This means that over and above the sum presently awarded by the learned Tribunal towards dependency compensation, we award to the M. A. C. A No.2002 of 2008 -6- appellants ` 4,07,274/- more towards dependency. 6. We find inadequacy in the compensation awarded by the learned Tribunal towards other heads such as loss of consortium and loss of love and affection. The widow of the deceased was aged only 26 years. We are sure that the sum of ` 20,000/- presently awarded is grossly inadequate. We award to her ` 10,000/- more. The three minor sons of the deceased and his aged father were looking up to him for support and guidance and affections. We award all of them a total amount of ` 40,000/- as additional compensation towards loss of love and affection. 7. Thus in all the appellants are awarded a total amount of ` 4,57,274/- over and above what is awarded by the Tribunal. This amount will carry interest at the same rate as is awarded by the learned Tribunal. 8. As we are told that the father of the deceased has passed away, the balance compensation which remains payable by virtue of this judgment will be shared in the ratio M. A. C. A No.2002 of 2008 -7- of 40:20:20:20 between the widow and the sons. The Tribunal is directed to favourably consider any application which may be submitted by the appellants for immediate release of the share due to the widow. 9. The appeal is allowed. The impugned award is modified as above. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE