Vinod and Others v. Managing Director, Kerala State Road Transport Corporation and Johny

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 3[RD] DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943** **MACA NO. 2661 OF 2009** **AGAINST THE AWARD DATED 02.04.2009 IN OP(MV)NO.386/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA, THRISSUR** ## **APPELLANTS/PETITIONERS IN O.P.(MV):** **1 VINOD, S/O. LATE VAREED, AROTHA HOUSE, VALLAPPADY DESOM, KODAKARA VILLAGE & P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **2 BIJU, S/O.LATE VAREED, AROTHA HOUSE,VALLAPPADY DESOM, KODAKARA VILLAGE & P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **3 VARGHESE, S/O.LATE VAREED, AROTHA HOUSE, VALLAPPADY DESOM, KODAKARA VILLAGE & P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **4 BIJI, D/O.LATE VAREED, AROTHA HOUSE, VALLAPPADY DESOM, KODAKARA VILLAGE & P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS IN O.P.(MV):** **1 MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM.** M.A.C.A.No.2661/2009 -:2:- **2 JOHNY, S/O.PULLATTU OUSEPH, POOCHETTY P.O., NADATHARA VILLAGE, THRISSUR DISTRICT.** **BY ADVS.SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. SRI.JOY GEORGE, SC, K.S.R.T.C.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2661/2009 -:3:- Dated this the 3[rd] day of September, 2021 ## **J U D G M E N T** The appellants were the petitioners in O.P.(MV) No.386/2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of their mother, 'Rosy'(deceased). They contended that, on 16.08.2004, while the deceased was travelling as a in a bus passenger bearing registration No.KL-15/3867(bus), belonging to the first respondent and driven by the second respondent, when the bus reached Potta Asramom Junction, the second respondent applied the breaks in a negligent manner. The deceased was thrown on the road and sustained serious head injuries. Although she was taken to St. M.A.C.A.No.2661/2009 -:4:- James Hospital, Chalakudy, she lost her life on 19.08.2004. The accident occurred due to the negligence of the second respondent. The first respondent was the owner of the bus and, therefore, was vicariously liable to pay compensation to the appellants. The appellants had stated that the deceased was a manual labourer by profession and earning a monthly income of Rs.3,000/-. Hence, the appellants claimed a total compensation of Rs. 3,40,000/- from the respondents, which was limited to Rs.2,00,000/-. 3. Another fellow passenger, who was travelling in the bus also had filed O.P.(MV)No.231/2005 before the same Tribunal, claiming compensation on account of the injuries sustained to her in the accident. 4. The respondents filed written statements in both the claim petitions, _inter alia,_ contending that the deceased lost her life due to her own negligence. 5. The Tribunal consolidated and jointly tried M.A.C.A.No.2661/2009 -:5:- both the original petitions. 6. The appellants produced and marked Exts.A1 to A8 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after appreciating the pleadings and materials on record, allowed the claim petitions filed by the appellants in part, by permitting them to realise from the second respondent an amount of Rs.1,33,700/- with interest at the rate of 7% per annum from the date of petition till the date of realisation and proportionate costs. 8. Dissatisfied with the quantum of compensation, the appellants are in appeal. 9. Heard; Sri. P.V.Baby, the learned counsel appearing for the appellants/petitioners and Sri. P.C.Chacko, the learned counsel appearing for the first respondent /owner. 10. The sole question that emerges for consideration in the appeal is whether the quantum of M.A.C.A.No.2661/2009 -:6:- compensation awarded by the Tribunal is reasonable and just? ## **Liability and negligence:** 11. Ext.A2 chargesheet filed by the Chalakudy Police in Crime No.415/2004, clearly proves that the accident occurred due to negligence of the second respondent. Undisputedly, the first respondent was the owner of the bus and, therefore, the first respondent is vicariously liable to pay the compensation amount. ## **Notional income:** 12. The appellants had claimed that the deceased was a manual labourer by profession and earning a monthly income of Rs.3,000/-. The Tribunal, for want of materials, fixed the notional income of the deceased at Rs.1,500/- per month. 13. In _**Ramachandrappa v. Manager, Royal**_ ## _**Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236], the Hon'ble Supreme Court has M.A.C.A.No.2661/2009 -:7:- fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 14. Following the ratio in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2004, I am of the opinion that the deceased's notional income can safely be fixed at Rs.3,000/- per month, as claimed in the claim petition. ## **Multiplier** 15. It is proved that the deceased was aged 55 years at the time of her death. In the light of the law laid down in _**Sarla Verma and others v. Delhi Transport Corporation and others**_ [(2010) 2 KLT 802 (SC)],the multiplier to be adopted is '11'. ## **Dependants of the deceased:** 16. The appellants, who were the children of the deceased, had claimed that they were dependant on her. Even though the appellants were aged 29 to 22 at the time of the death of the deceased, taking into M.A.C.A.No.2661/2009 -:8:- consideration the fact that the deceased was their mother, I hold that they were dependants of the deceased, as found by the Tribunal. 17. Accordingly, I deduct ¼[th] of the total compensation, as laid down in _**Sarla Verma**_ (supra) and _**National Insurance Company Ltd. v. Pranay Sethi**_ [2017 (4) KLT 662(SC)], towards the personal living expenses of the deceased. ## **Future prospects:** 18. Following the ratio in _**Sarla Verma**_ and _**Pranay Sethi**_ (supra) and considering the multiplier as '11', I hold that the appellants are also entitled for 'future prospects' at 10% on the 'loss of dependency'. ## **Loss due to dependency:** 19. Taking into account the above-mentioned factors, i.e, the notional income of the deceased at Rs.3,000, the multiplier at 11, future prospects at 10% and deducting ¼[th] of the total compensation for 'loss M.A.C.A.No.2661/2009 -:9:- of dependency' towards the personal living expenses of the deceased, I re-fix the compensation under the head 'loss of dependency' of the appellants at Rs.3,26,700/- instead of Rs.96,000/- awarded by the Tribunal. ## **Conventional heads of compensation:** 20. In clause (viii) of paragraph 61 of _**Pranay Sethi**_ (supra), the Hon'ble Supreme Court has held that the dependants of the deceased are entitled for compensation under the conventional heads namely, funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/-, respectively. 21. In the instant case, the Tribunal has awarded only an amount of Rs.3,000/- towards 'funeral expenses'. Following the ratio in the afore-cited decisions, I hold that the appellants are entitled for enhancement of compensation under the head 'funeral expenses' by a further amount of Rs.12,000/-. M.A.C.A.No.2661/2009 -:10:- Similarly, the Tribunal has not awarded any amount under the head 'loss of estate'. Hence, I award an amount of Rs.15,000/- under the said head. 22. It is on record that the appellant Nos. 1 to 3 were the major sons of the deceased, who were aged 29, 27 and 24 at the time of death of the deceased. Therefore, as the appellants 1 to 3 had their own independent income, I hold that they are not entitled for compensation for 'loss of consortium'. However, as the fourth appellant was the daughter of the deceased and was aged only 22 years at the time of the death of the deceased, I hold that she is entitled for 'loss of parental consortium' at Rs.40,000/-. ## **Loss of love and affection:** 23. It is seen that the Tribunal has awarded an amount of Rs.10,000/- under the head 'loss of love and affection' to the appellants. 24. In _**New India Assurance Company Ltd. v. Somwati & Ors.**_ [2020(9)SCC 644], the Hon'ble M.A.C.A.No.2661/2009 -:11:- Supreme Court has held that once compensation under the head 'loss of consortium' is awarded, no amount can be awarded under the head 'loss of love and affection', as it is amount to duplication of compensation. Accordingly, I set aside the amount of Rs.10,000/- awarded under the head 'loss of love and affection'. 25. With respect to the amount awarded under the head 'pain and sufferings', I find the same to be reasonable because the deceased lost her life only three days after the accident. 26. Similarly, I find that the amount of Rs.17,700/- awarded towards 'medical expenses' of the deceased is reasonable. 27. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the appellants/petitioners are entitled for enhancement of compensation as modified and M.A.C.A.No.2661/2009 -:12:- re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Medical expenses|17,700|17,700| |2|Funeral expenses|3,000|15,000| |3|Pain and sufferings|7,000|7,000| |4|Loss of love and<br>affection|10,000|Nil| |5|Loss of estate|Nil|15,000| |6|Loss of consortium|Nil|40,000| |7|Loss<br>due<br>to<br>dependency|96,000|3,26,700| ||**Total**|**1,33,700**|**4,21,400**| 28. Even though the appellants had claimed only an amount of Rs.2,00,000/- as compensation, following the ratio in _**Sarla Verma**_ and _**Pranay Sethi**_ (supra), the appellants are entitled for 'future prospects' and based on the multiplier method, I hold that they are entitled to compensation than what is claimed in the claim petition. The above course is permissible in view of the law laid down in _**Nagappa v. Gurudayal Singh**_ M.A.C.A.No.2661/2009 -:13:- [2003 (1) KLT 115 SC] and _**Rajesh v. Rajbir Singh**_ [2013 (3) KLT 89 SC], wherein the Honourable Supreme Court has held that there is no legal impediment or restriction in awarding more compensation than what is claimed in the claim petition, as what is contemplated under the Motor Vehicles Act is just and reasonable compensation. In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.2,87,700/-** (Rupees two lakh eighty seven thousand seven hundred only) with interest on the enhanced compensation at the rate of 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 46 days i.e., the period of delay in preferring this appeal and as directed by this Court on 03.08.2021 in C.M.Appln.No.3140/2009, and cost of Rs.3,000/-. The first respondent/insurer is directed to deposit the enhanced compensation with interest and cost before M.A.C.A.No.2661/2009 -:14:- the Tribunal within a period three months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation amount to the appellants/petitioners in the ratio of 20:20:20:40, respectively and in accordance with law, after deducting their liability, if any, towards payment of court fee. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge