Kerala High Court

Annie George vs Managing Director, Ksrtc on 2 July, 2021

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                     THE HONOURABLE MR.JUSTICE C.S.DIAS

          FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943

                             MACA NO. 1821 OF 2010

 IN OP(MV).NO.2600/2005 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,

                                  ERNAKULAM

APPELLANTS:

     1        ANNIE GEORGE, AGED 58 YEARS
              W/O. N. P. GEORGE, NALIATH HOUSE, MANDANAM, ECO GARDENS,
              KADUNGAMANGALAM, THIRUVANKULAM P. O.

     2        TEJ PAUL GEORGE, AGED 30 YEARS S/O.N.P.GEORGE
              NALIATH HOUSE, MANDANAM, ECO GARDENS,
              KADUNGAMANGALAM, THIRUVANKULAM P.O.

     3        ANUJA AMBAT, D/O. N. P. GEORGE, AGED 34 YEARS
              NALIATH HOUSE, MANDANAM, ECO GARDENS,
              KADUNGAMANGALAM, THIRUVANKULAM P.O., REPRESENTED BY HER
              REGISTERED POWER OF ATTORNEY HOLDER - ANNIE GEORGE.

              BY ADVS.
              SRI.ABRAHAM VAKKANAL (SR.)
              SRI.DIJO SEBASTIAN
              SRI.PAUL ABRAHAM VAKKANAL
              SMT.VINEETHA SUSAN THOMAS


RESPONDENTS:

     1        MANAGING DIRECTOR, KSRTC, KSRTC BHAVAN, TRIVANDRUM.

     2        P.M.JOHNSON, AGED 48 YEARS, S/O. MATHEW, PELLISSERRY,
              ANMADAM, PARALAM VILLAGE, TRICHUR.

              BY ADVS.
              P.C.CHACKO(PARATHANAM)
              SRI.JOY GEORGE, SC, K.S.R.T.C.


THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON

02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 1821 OF 2010


                                     2



                             JUDGMENT

The appellants were the petitioners in O.P.(M.V).No.2600 of

2005 on the file of the Motor Accidents Claims Tribunal,

Ernakulam. 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 death of N.P.George (deceased), the

husband of the first appellant and the father of appellants 2 and 3.

3. The concise case of the appellants in the claim petition,

the relevant for determination of appeal, is that: on 01.01.2005,

while the deceased was walking towards the Koratty Busstop

along with his brother, a bus bearing registration No.KL-15-4936,

driven by the second respondent in a rash and negligent manner,

hit the deceased. Although, he was taken to the Little Flower

Hospital, Angamaly, his life could not be saved. The bus was

owned by the first respondent. The deceased was Pensioner, MACA NO. 1821 OF 2010

Agriculturalist and Tuition Teacher by profession and earning a

monthly income of Rs.15,000/-. The appellants were the

dependents of the deceased. The appellants claimed a

compensation of Rs.10,35,000/-, which was limited to

Rs.10,00,000/-.

4. The respondents 1 and 2 filed a written statement, inter

alia, refuting the allegations in the claimants. They contended that

the accident occurred due to the negligence on the part of the

deceased, who abruptly and negligently crossed the road.

5. A witness was examined on the side of the appellants

as PW-1 and Exts.A1 to A12 were marked in evidence.

6. The Tribunal, after analyzing the pleading and materials

on record, by the impugned award allowed the claim petition, in

part, by permitting the appellants to recover and amount of

Rs.2,70,000/- with interest at the rate of 7.5% per annum from the

date of petition till the date of realisation along with proportionate

cost. The first respondent was directed to pay the compensation

amount.

MACA NO. 1821 OF 2010

7. Dissatisfied with the quantum of compensation awarded

by the Tribunal, the petitioners are in appeal.

8. Heard Shri Abrahan Vakkanal, learned Senior Counsel

appearing for the appellants and Shri P.C.Chacko, the learned

Standing Counsel appearing for the first respondent.

9. The sole question that emanates for consideration in the

appeal is whether the amount of compensation awarded by the

Tribunal is reasonable and just.

10. A Constitution Bench of the Hon'ble Supreme Court in

National Insurance Company Ltd. v. Pranay Sethi [(2017) 16

SCC 680], has held that Section 168 of the Motor Vehicles Act,

1988, deals with the concept of 'just compensation', and the same

has to be determined on the foundation of fairness,

reasonableness and equitability on acceptable legal standards.

The conception of 'just compensation' has to be viewed through

the prism of fairness, reasonableness and non-violation of the

principle of equitability.

11. Ext.A6 charge sheet filed by the Koratty Police after MACA NO. 1821 OF 2010

investigation, substantiates that the accident was caused due to

the rash and negligent driving of the offending vehicle by the

second respondent. Undisputedly the first respondent was the

owner of the bus, therefore, the first respondent is vicariously

liable for the liability caused due to the accident.

12. The principal area of dispute in this appeal is with

regard to the fixation of the notional income of the deceased.

Notional Income of the Deceased

13. The appellants claimed that the deceased was a retired

Principal of the Government College, Manimalakunnu, Piravom;

that he was an Agriculturalist; that he used to take Tuitions and

was earning a monthly income of Rs.15,000/-. However, the

appellants only produced Exts.A12 pension book, which proves

that the deceased was getting a monthly pension of Rs.7,135/-.

14. The Tribunal, for lack of pleadings and want of

materials, fixed the notional income of the deceased at

Rs.84,000/- per annum i.e., Rs.7000/- per month.

15. Although the Tribunal held that the first appellant might MACA NO. 1821 OF 2010

be drawing family pension, it was also observed that the deceased

would have taken Tuitions and would have got engaged himself in

other avocations for at least a further period of 10 years.

Accordingly, the income was fixed at Rs.84,000/- per annum.

16. Undisputedly as per Ext.A12 pension book, the

deceased was found to be drawing a pension of Rs.7135/- per

month. According to me, even though there are no materials to

prove the agricultural income and the income from tuitions of the

deceased, certainly we can accept Ext.A12 pension book in its

entirety, keeping in mind that the deceased was only 60 years of

age at the time of his death. Thus, I fix the monthly income of the

deceased as per Ext.A12, at Rs.7135/- per month.

Future Prospects

17. In Sarla Verma v. Delhi Transport Corporation

[2009 (6) SCC 121] and in line of subsequent decisions the

Hon'ble Supreme Court has held that the dependents of the

deceased are also entitled for future prospects. As the deceased

was aged 60 years on the date of his death, 10% of the MACA NO. 1821 OF 2010

compensation has to be added in the compensation for loss of

dependency .

Multiplier

18. It is seen that the Tribunal has adopted the multiplier of

the deceased as '5'. In light of the law laid down in Sarla Verma

(supra) and Pranay Sethi (supra), the relevant multiplier is '9'.

Thus, I fix the multiplier as '9'.

Personal living expenses

19. In Pranay Sethi (supra), it is held that personal living

expenses has to be deducted. Taking into account that the

deceased had 3 legal heirs, I hold that 1/3 rd of the compensation

for loss due to dependency has to be deducted towards his

personal living expenses.

Compensation for Loss due to Dependency

20. In the light of the parameters fixed above i.e., the age

of the deceased at 60 years, his monthly income at Rs.7135/-, the

multiplier at 9%, future prospects at 10% and the number of

dependency as 3 and the personal living expenses of the MACA NO. 1821 OF 2010

deceased has to be deducted by 1/3rd, I re-fixed the compensation

for loss of dependency at Rs.5,65,092/-, instead of Rs.2,40,000/-

fixed by the Tribunal.

Conventional Heads of Compensation

21. In Clause (viii) of paragraph 61 of the Pranay Sethi

(supra), the Hon'ble Supreme Court has fixed the compensation

under conventional heads namely funeral expenses, loss of estate

and loss of consortium at Rs.15,000/-, 15,000/- and 40,000/-

respectively.

22. In the light of the ratio deducted in Pranay Sethi

(supra), I enhance the compensation under heads funeral

expenses from Rs.10,000 to Rs.15,000 and loss of estate from

Rs.5000 to Rs.15,000/-.

23. Taking note of the fact that appellants 2 and 3 were

aged 25 and 29, respectively at the time of death of the

deceased, I hold that the only the first appellant is entitled for

spousal consortium at Rs.40,000/-.

24. With respect to the other heads of the compensation MACA NO. 1821 OF 2010

awarded by the Tribunal, I find to the same to be reasonable and

just.

25. On an overall re-appreciation of the pleadings, materials

on record and the law laid down by the Hon'ble Supreme Court in

the afore-cited precedents, I am of the definite opinion that the

appellants are entitled for enhancement of compensation as

modified as re-calculated above, and given in the table below for

easy reference.

        SI.No.   Head of claim    Amount awarded    Amounts
                                  by the Tribunal   modified and
                                  (in rupees)       recalculated
                                                    by this Court

        1        Transport to     5000              5000
                 hospital

        2        Funeral          10000             15000
                 expenses

        5        Pain and         10000             10000
                 sufferings

        6        Loss of estate   5000              15000

        7        Loss of          Nil               40000
                 consortium
 MACA NO. 1821 OF 2010





     8      Loss of          2,40,000/-         5,65,092
            dependency

            Total            2,70,000            6,50,092

In the result, the appeal is allowed in part by enhancing the

compensation by a further amount of Rs.3,80,092/- with interest

at the rate of 6% per annum on the enhanced compensation from

the date of claim petition till the date of deposit along with

proportionate costs. The first respondent shall deposit the

enhanced compensation along with interest and proportionate

cost within a period of 'three months' from the date of receipt of

copy of the judgment. The Tribunal shall disburse the enhanced

compensation to the appellants in accordance with law.

Sd/-

C.S.DIAS, JUDGE AS MACA NO. 1821 OF 2010

APPENDIX

PETITIONER'S ANNEXURES:

ANNEXURE A1 TRUE COPY OF THE SALE DEED NO.98/1968 OF SRO MULAMTHURUTHY.

ANNEXURE A2 ARTICLE TITLED "HOW PURE, ROOF RAINWATER?" ON RAIN WATER HARVESTING BY PREMA MANMADHAN IN CONVERSATION PROF N P GEORGE IN "THE HINDU" ON 19TH JULY 2004

ANNEXURE A3 ARTICLE ON COCONUT FARMING PUBLISHED BY PROF N P GEORGE IN "KRISHIKKARAN" NOVEMBER 2004 ISSUE

ANNEXURE A4 ARTICLE TITLED " THE FARMER IN HIS NATURAL DEN"