Viswambaran and Jagadamma v The Managing Director, KSRTC and Alexander Markose

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 28TH DAY OF JANUARY 2016/8TH MAGHA, 1937 MACA.No. 875 of 2012 (C) -----------------------AGAINST THE AWARD IN OPMV 879/2005 of ADDL.MACT, ALAPPUZHA DATED 31-08-2011 ## APPELLANTS/PETITIONERS: ------------------------- 1. VISWAMBARAN, S/O.KARUNAKARA THANDAR, PALEEPARAMBIL, POLLETHAI P.O., ALAPPUZHA. ## 2. JAGADAMMA, W/O.VISWAMBARAN, PALEEPARAMBIL, POLLETHAI P.O., ALAPPUZHA. BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH ## RESPONDENTS : RESPONDENTS :- ---------------------------- ## 1. THE MANAGING DIRECTOR ,KSRTC, THIRUVANANTHAPURAM. ## 2. ALEXANDER MARKOSE, S/O.MARKOSE, EARITHIKARA VEEDU, WARD No.9, CHORNIKKARA PANCHAYATH, ALUVA. R1 BY ADV. SRI.GOPIKRISHNAN NAMBIAR, SC, KSRTC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -----------------------------------------------------------------M.A.C.A.No.875 of 2012 -----------------------------------------------------------------Dated this the 28[th] day of January, 2016** ## **JUDGMENT** ## Ramachandra Menon, J. This appeal arises from the award dated 31.8.2011 passed by the M.A.C.T., Alappuzha in O.P(MV)No.879 of 2005 and the grievance is in respect of the inadequacy of the compensation awarded. 2. The deceased was driving the private bus bearing No.KL-4/J-9817 along the Alappuzha-Ernakulam National High Way from South to North on 7.4.2005 and by about 1 p.m. when the vehicle reached the place of occurrence, the KSRTC bus bearing No.KL-13/4978 owned by the 1[st] respondent and driven by the 2[nd] respondent came in a rash and negligent manner and dashed against the bus driven by the deceased causing fatal injuries leading to his death occurred on the same date. This was sought to be compensated by filing the claim petition by the legal heirs before the Tribunal. 3. The driver of the KSRTC bus did not choose to contest the matter and was set exparte. The claim was resisted by the 1[st] M.A.C.A.No.875 of 2012 2 respondent/KSRTC mainly on general grounds, also trying to attribute negligence on the part of the deceased driver of the private bus. The evidence adduced before the Tribunal consists of Exts.A1 to A7, among which Ext.A1 is a document issued by the employer of the deceased, certifying the monthly salary as ₹3,600/-, plus such other allowances. This was sought to be substantiated by examining the employer as PW.1. The Tribunal however reckoned only 3,600/- per month as the income and₹ worked out the compensation for disability adopting the multiplier of '13', based on the age of the mother, without any heed to the age of the deceased. Awarding amounts under different heads, the total compensation payable was fixed as 2,93,800/- which₹ was directed to be satisfied with interest @7.5% per annum from the date of petition, till realisation. This is sought to be enhanced at the instance of the claimants. 4. Heard the learned counsel for the appellants as well as the learned Standing Counsel for the KSRTC. 5. There is no dispute with regard to the occurrence of the accident and involvement of the vehicle is concerned. But for M.A.C.A.No.875 of 2012 3 the denial of the negligence, no evidence was adduced from the part of the KSRTC in support of their version fixing the negligence on the part of the deceased driver of the private bus. The police, who had registered the crime, after investigation, submitted charge sheet against the driver of the KSRTC bus. It was based on the evidence on record, that the Tribunal found that the negligence was solely on the part of the driver of the KSRTC bus. This Court does not find anything wrong in the finding arrived at by the Tribunal, as it is well supported by the reasoning. 6. Coming to the quantum of compensation fixed by the Tribunal, the learned counsel for the appellant points out that Ext.A1 clearly refers to the monthly salary payable as ₹3,600/-; plus daily bata and such other amounts towards the overtime duty. Even if the remuneration for the overtime duty is ignored, the deceased was getting monthly salary, plus daily bata and as such, the amount fixed by the Tribunal as ₹3,600/- as the notional monthly income is not correct or sustainable. That apart, the future prospects have also not been considered by the Tribunal in fixing the multiplicand. The learned Standing Counsel M.A.C.A.No.875 of 2012 4 for the KSRTC submits that the Tribunal has accepted the version of the claimant that he was having a monthly income of ₹3,600/which in turn has been accepted and adopted for working out the figures and as such no interference is warranted. But the fact remains that the accident was in the year 2005, that the deceased was admittedly driving the private bus based on the heavy motor vehicle licence obtained to him and this being the position the element of future prospects also ought to have been considered by the Tribunal while fixing the monthly income. Considering the age of the deceased and such other circumstances as above, we find it appropriate to add 50% more to the above figure of ₹3,600/- and thus it becomes ₹5,400/- per month. 7. It is seen that the Tribunal has reckoned only '13' as the multiplier, which presumably is based on the age of the mother. It cannot be a matter of dispute any more in view of the law declared by the Supreme Court that the appropriate multiplier has to be selected on the basis of the age of the deceased. Since the deceased was aged 27 years, the appropriate M.A.C.A.No.875 of 2012 5 multiplier is '17'. The matter requires to be re-worked, to fix the loss of dependency and it comes to 5400x12x50%x17= ₹5,50,800/-. After deducting the sum of ₹2,80,800/- awarded by the Tribunal, the balance comes to **2,70,000/-₹** . 8. The amounts awarded by the Tribunal under different heads as discernible from paragraph 8 are in the following terms:- |-|||| |---|---|---|---| |**_Head_**|**_Amount_₹**||| ||Claimed|Allowed|Remarks| |Funeral expenses|10000|2000|| |Transport to hospital|2000|1000|| |Damage to clothing|2000|Not<br>allowed|No evidence| |Loss of earnings|5000|Allowed<br>under the<br>other<br>head|| |Compensation for<br>pain and sufferings|10000|5000|| |Loss of love and<br>affection|25000|5000|| |Pecuniary loss<br>sustained to the<br>claimant due to<br>untimely and<br>accidental death of<br>Maneesh|800000|280800<br>(3600x12<br>x13x1/2)|| |Total<br>(amount limited to<br>₹8,54,000/-)|**₹ 2,93,800/-**||| M.A.C.A.No.875 of 2012 6 9. Only a sum of ₹2,000/- has been awarded by the Tribunal towards funeral expenses. Considering the date of accident, we find it appropriate to enhance the same to ₹10,000/-, thus awarding a balance sum of **₹8,000/-** . Even though the death occurred was on the same day, compensation awarded for pain and suffering limiting the same to ₹5,000/requires to be boosted up to ₹10,000/-, thus resulting in a balance of **₹5,000/-** . Similarly, the amount awarded by the Tribunal towards 'loss of love and affection' fixing the same as only ₹5,000/- is much on the lower side. The compensation payable under the above head, based on the decision given in **Rajesh and others v. Rajbir Singh and others** ( **(3) KLT 89)** , is ₹1,00,000/-. But the accident in the said case was in the year 2007, whereas in the instant case, it was in the year 2005. Striking a balance with reference to economic conditions prevailing on the date of accident, we fix the same as ₹75,000/and thus award a sum of **₹70,000/-** as the balance compensation payable under this head. The total balance M.A.C.A.No.875 of 2012 7 compensation payable comes to **₹3,53,000/-** which requires to be satisfied with interest @9% per annum from the date of petition, till satisfaction. Existence of any policy coverage is not brought to the notice of this Court. It only suggests that statutory policy was not taken by the KSRTC, presumably for the reason that they are capable of discharging the liability, if at all any liability arises. In the said circumstance, we direct the 1[st] respondent to deposit the due amount within one month from the date of receipt of a copy of this judgment. The appeal stands allowed to the said extent. Sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge