V.K. Syla Madanakumar and others v. Kerala State Road Transport Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 31[ST] DAY OF JANUARY 2022 / 11TH MAGHA, 1943** ## **MACA NO. 3607 OF 2016** ## **AGAINST THE ORDER/JUDGMENT IN OPMV 844/2005 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,THIRUVANANTHAPURAM** ## **APPELLANT/S:** - 1 V.K. SYLA MADANAKUMAR,W/O.DECEASED K.MADANAKUMAR, TC 14/565, SAMATHI MADAM, NANDAVANAM P.O., THIRUVANANTHAPURAM. - 2 AISWARYA M.KUMAR,D/O.DECEASED K.MADANAKUMAR RESIDING AT TC 14/565, SAMATHI MADAM, NANDAVANAM P.O., THIRUVANANTHAPURAM. - 3 ANOOP M.KUMAR,S/O.DECEASED K.MADANAKUMAR RESIDING AT TC 14/565, SAMATHI MADAM, NANDAVANAM P.O., THIRUVANANTHAPURAM. - BY ADVS. - K.T.SHYAMKUMAR HARISH R. MENON ## **RESPONDENT/S:** - 1 THE KERALA STATE ROAD TRANSPORT CORPORATION CHIEF OFFICE, THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING DIRECTOR.695 001 - 2 SUKUMARI AMMA,D/O.LATE LEKSHMIKUTTY AMMA, TC 7/1864, THRIKETTA, PANGODE, THIRUVANANTHAPURAM.695 001 - 3 VIJAYAKUMAR K.(DIED),S/O.LATE LEKSHMIKUTTY AMMA, TC 14/1569, PALAYAM, NANDAVANAM P.O., THIRUVANANTHAPURAM.695 005 - 4 VASANTHAKUMARI,D/O.LATE LEKSHMIKUTTY AMMA, TC 14/565, SAMATHI MADAM NANDAVANAM P.O., THIRUVANANTHAPURAM.695 005 - 5 MOHANAKUMARI,D/O.LATE LEKSHMIKUTTY AMMA, TC 7/18201, NANDANAM PANGODE, THIRUVANANTHAPURAM.695 001 - 6 C.CHANDRIKA,W/O.VIJAYAKUMAR K. TC 14/1569, PALAYAM, NANDAVANAM P.O., THIRUVANANTHAPURAM. 2 MACA No.3607 of 2016 7 LAKSHMI C.V.,D/O.VIJAYAKUMAR K, AMBADI, HOUSE, NO: 6/435, PARANIYAM PUTHIYATHURA P.O. KARIMKULAM, THIRUVANANTHAPURAM - 695526. 8 INDU C.V,D/O.VIJAYAKUMAR K, TC 14/1567 , KBAC JUNCTION , NEAR VALSALA NURSING HOME, THYCAUD P.O., THIRUVANANTHAPURAM- 695014 9 SANDHYA.C.V,D/O.VIJAYAKUMAR K., TC 14/1567 , KBAC JUNCTION , NEAR VALSALA NURSING HOME, THYCAUD P.O., THIRUVANANTHAPURAM- 695014 ADDITIONAL RESPONDENTS 6 TO 9 (LEGAL HEIRS OF DECEASED R3) ARE IMPLEADED, AS PER ORDER DATED 21/1/2022 IN IA NO.4/2019 IN MACA 3607/2016 BY ADVS. SRI.P.C.CHACKO -R1 SMT.CHITHRA CHANDRASEKHARAN – R6 TO R9 SRI.ALEX ANTONY SEBASTIAN P.A -R1 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 MACA No.3607 of 2016 ## **C.S.DIAS, J. ====================== MACA No.3607 of 2016 ====================== Dated this the 31st day of January 2022.** ## **JUDGMENT** The appellants were the petitioners 1 to 3 in OP(MV) 844/2005 on the file of the Motor Accident Claims Tribunal, Thiruvananthapuram. The first respondent in the appeal was the respondent before the Tribunal. The fourth petitioner before the Tribunal had died during the pendency of the claim petition and her legal representatives were impleaded as the supplemental petitioners 5 to 8 in the claim petition. They are the respondents 2 to 5 in the appeal. During the pendency of the appeal, the third respondent in the appeal died. His legal representatives have been impleaded as additional respondents 6 to 9 in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per their 4 MACA No.3607 of 2016 status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of K.Madanakumar (deceased), the husband of the first petitioner, father of petitioners 2 and 3 and the son of the fourth petitioner. It was their case that, on 16.3.2005, while the deceased was riding a scooter bearing registration No.KL-01/Q 1670 from All Saints College to Shanmugham beach, a KSRTC bus bearing registration No.KL-15/4565, driven by its driver in a rash and negligent manner, hit the scooter of the deceased. The deceased sustained fatal injuries and lost his life instantaneously. The deceased was a Senior Assistant in Fire Service and drawing a monthly income of Rs.26,089/-. The petitioners 1 to 4 were the dependents of the deceased. As already stated, pending the claim petition, the fourth petitioner died and her legal representatives were impleaded as additional petitioners 5 5 MACA No.3607 of 2016 to 8. The petitioners claimed a compensation of Rs.88,71,902/- from the respondents, which claim was limited to Rs.25,00,000/-. 3. The respondent had filed a written statement refuting the allegations in the claim petition. The respondent disputed the age, income and occupation of the deceased. It was contended that the accident occurred due to the negligence of the deceased. The respondent also stated that the amount claimed was excessive. 4. The petitioners had produced and marked Exts A1 to A15 in evidence. The respondents did not let in any evidence. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioners 1 and 4 to recover from the respondent an amount of Rs.41,35,672/- with interest and cost. The claim of the petitioners 2 and 3 – the children of the deceased - was declined on the ground that they were 6 MACA No.3607 of 2016 not dependents of the deceased. 6. Aggrieved by the rejection of the claim of the petitioners 2 and 3, the petitioners 1 to 3 are in appeal. 7. Heard; K.T Shyam Kumar, the learned counsel appearing for the appellants, Sri.Alex Antony, the learned counsel appearing for the first respondent and Smt.Chithra Chandrasekharan, the learned counsel appearing for the respondents 6 to 9. Although service is complete on the other respondents, there is no appearance for them. The learned counsel appearing for the respondents 6 to 9 submitted that the respondents 6 to 9 have no objection in the compensation amount being paid entirely to the appellants. 8. The sole point that arises for consideration in the appeal is whether the rejection of the claim of the appellants 2 and 3/petitioners 2 and 3 for compensation, on the finding that they are not dependents of the deceased, is sustainable in law or not. 7 MACA No.3607 of 2016 9. The specific case of the petitioners in the claim petition is that the first petitioner was the wife, petitioners 2 and 3 were the children and fourth petitioner was the mother of the deceased. It was no one's case that the petitioners 2 and 3 were not the dependents of the deceased. The Tribunal, on the basis of conjectures and surmises, arrived at a conclusion that only the petitioners 1 and 4 were the dependents of the deceased. The Tribunal has not given any reason for rejecting the claim of the appellants 2 and 3, which is erroneous and wrong. 10. This Court in **United India Insurance Co Ltd., v. Shalumol and others [2021 SCC Online Kerala 3209]** has categorically held that financial dependency is not the sole criteria to award compensation for loss of dependency in a claim under Sec.166 of the Motor Vehicles Act. 11. In the above legal and factual matrix, I hold that the finding of the Tribunal that the appellants 2 and 8 MACA No.3607 of 2016 3/petitioners 2 and 3 - who were the children of the deceased – were not dependents of the deceased is erroneous and wrong. 12. In the above situation, particularly since the fourth petitioner before the Tribunal is no more, I am of the definite view that the compensation awarded by the Tribunal has to be apportioned among the appellants/petitioners 1 to 3. In the result, the appeal is allowed, by setting aside the direction in the impugned award that the petitioners 2 and 3 are not entitled for compensation and the fourth petitioner is entitled for 40% of the compensation amount. Consequentially, I order that the entire compensation amount ordered by the Tribunal, as per the impugned award, shall be apportioned in the ratio of 40:30:30 among the appellants/petitioners 1 to 3. The Tribunal shall disburse the compensation amount as per the impugned award, in the above said ratio, along with interest and cost 9 MACA No.3607 of 2016 to the appellants and in accordance with law. The appeal is disposed of accordingly, The parties shall bear their respective costs. sd/- sks/31.1.2022 **C.S.DIAS, JUDGE**