Abdulla C.T & K.M. Sajina v. Royal Sundaram Alliance Insurance Company Limited

MACA No.264 of 2015 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 23[RD] DAY OF JULY 2021 / 1ST SRAVANA, 1943 ## MACA NO. 264 OF 2015 AGAINST THE ORDER/JUDGMENT IN OPMV 713/2009 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD, KASARGOD ## APPELLANTS/PETITIONERS: > 1 ABDULLA C.T AGED 38 YEARS S/O.MUHAMMED DAVOOD, M.K.HOUSE, MANIYAT P.O., CHANDERA, KASARAGOD DISTRICT. > 2 K.M.SAJINA AGED 26 YEARS D/O.JALALUDDIN, MUNDAKUNDIL, M.K.HOUSE, MANIYAT P.O., CHANDERA, KASARAGOD DISTRICT. BY ADV SRI.M.V.AMARESAN ## RESPONDENT/3RD RESPONDENT: M/S. ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED D1, IIND FLOOR AMRITHA TOWERS, KPCC JUNCTION, OPP. MAHARAJA GROUNDS, M.G.ROAD, KOCHI, PIN - 682 011. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SMT.PREETHY R. NAIR THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR HEARING ON 23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.264 of 2015 2 ## **JUDGMENT** This appeal is filed by the petitioners in OP (MV) No.713/2009 on the file of the Motor Accidents Claims Tribunal, Kasargod. The said claim petition was filed by the Appellants herein, seeking compensation for the death of their son, who was aged only 4 months, due to the injuries sustained to him in a motor accident occurred on 15/07/2009. According to them, on that unfortunate day, the deceased boy was travelling in an autorikshaw along with the parents, and when they reached the spot of accident, it was collided with a car. The said car was being driven by the 2[nd] respondent, owned by the 1[st] respondent and was insured with the 3[rd] respondent. As compensation, they claimed an amount of ₹ 3 lakhs. 2. Respondent Nos. 1 and 2 have filed a written statement jointly, wherein it was contended that the accident was not due to the rash and negligent driving by the 2[nd] respondent, as claimed in the original petition. If at all they were found to be responsible to pay the compensation, the same has to be recovered from the 3[rd] respondent- Insurance Company, as the vehicle was validly insured with them at the relevant time. 3. The 3[rd] respondent Insurance Company filed a written MACA No.264 of 2015 3 statement admitting the coverage of insurance policy for the car involved in the accident, but disputed the liability on various grounds. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of Exhibits A1 to A4, from the side of the appellants. No evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligent driving of the 2[nd] respondent and hence the 1[st] respondent being the owner of the vehicle is vicariously liable to pay the compensation. As the said vehicle was insured with the 3[rd] respondent, they were directed to deposit the amount of compensation. The quantum of compensation was fixed as Rs 2,97,500/-and the said amount was directed to be deposited by the 3[rd] respondent along with interest at the rate of 8% per annum. This appeal is filed by the appellants, being dissatisfied with the quantum of compensation and seeking enhancement thereof. 5. Heard both sides. The main contention urged by the learned counsel for the appellants is that the quantum of compensation awarded by the Tribunal is grossly inadequate. He relies upon the decision rendered by this Court in **National** MACA No.264 of 2015 4 **Insurance Company Ltd Vs K.K.Assainar (2019 (4) KLT 39)** wherein this Court after referring to large number of decisions rendered by the Hon’ble Supreme Court, stipulated guidelines for awarding compensation in the cases of death of children. On the other hand, learned counsel for the Insurance Company seriously opposes the said prayer by contending that the amount awarded by the Tribunal is reasonable and no interference is warranted. 6. As pointed out by the learned counsel for the appellants, in the case of Assainar (supra) this Court dealt with in detail, by referring to large number of judicial precedents and arrived at a clear conclusion as to the manner in which compensation has to be worked out in respect of death of children. In the said decision, this Court has considered the children below the age of 6 years and the children between the age group of 6 years to 15 years as separate categories and contemplated for different yardsticks for assessment of compensation for loss of dependency. The relevant observations made by this Court in the said judgment reads as follows: “13.As far as the cases involving death of children below the age of 6 are concerned, as the compensation payable to their parents is the present value of the prospective services and pecuniary benefits expected from the deceased children, the parents of such children cannot be equated with the parents of ## MACA No.264 of 2015 5 school going children up to the age of 15, for, they cannot expect services and pecuniary benefits from the children in the near future as in the case of the parents of the children in the age group of 6 to 15. Further, unlike the parents of school going children, the parents of children below the age of 6 may not have spent amounts for the education and related matters of their children, so as to maintain a legitimate and reasonable expectation of services and pecuniary benefits in future from their children. A different yardstick is, therefore, to be fixed for computing compensation for loss of dependency in their cases. If multiplier method cannot be applied in such cases, only a consolidated amount can be granted by way of compensation. 14. Prescription of a mode for arriving at the consolidated amount of compensation payable in such cases is a difficult task. It is difficult also for the reason that the mode prescribed shall satisfy the concept of just compensation and maintain uniformity in the compensation granted in identical and similar cases. As mentioned earlier, in the context of death of children in the age group of 6 to 15 also, evidence is not let in, in most of the proceedings and compensation is arrived at subjectively by the Tribunals having regard to the statements made in the claim petitions. As in the cases involving death of children in the age group of 6 to 15, except in exceptional cases where the children under this group are earning during their minority and positive evidence is let in, in the proceedings to establish the prospective services and pecuniary benefit expected from them, all cases involving death of children below the age of six years shall be considered, according to me, alike. As the parents cannot expect services and pecuniary benefits from such children in the near future, the compensation provided for in terms of S.163A of the Act for the claimants in cases involving death of children, subject to a progressive addition from year to year, according to me, would satisfy the MACA No.264 of 2015 6 requirement of just compensation in their cases. The compensation prescribed in terms of S.163A of the Act for the claimants in a case involving death of a child is Rs.2,40,000/(See Kumari Sree Devi v. The Managing Director, K.S.R.T.C. (2011 (3) KHC 484 : 2011 (3) KLT 716 : 2011 (3) KLJ 538 : ILR 2011 (3) Ker.671)). S.163A was introduced on 14/11/1994. The amount specified therein can, therefore, be granted certainly, except in exceptional cases as compensation in the case of children in this category in respect of claims arose during the years 1994 and 1995. S.163A of the Act has now been amended with effect from 22/05/2018 and the compensation prescribed in terms of the amended provision is Rs.5,00,000/-. If a sum of Rs.12,000/- is added progressively every year after 1995 to the compensation prescribed under the said provision initially namely Rs.2,40,000/-, the same would sync with the compensation prescribed under the provision after the amendment as well. In cases involving death of children in that age group after the 2018 amendment to S.163A, compensation can be fixed appropriately on the basis of the compensation prescribed under S.163A namely Rs.5,00,000/-, after offsetting the effect of inflation on the real value of money. If compensation is computed in cases involving death of children below the age of 6 in the aforesaid manner, I am of the view that the same would not only satisfy the requirement of just compensation but also ensure uniformity in the awards passed in similar and identical cases. The question is answered accordingly.” From the observations in the above decision, it can be seen that, a uniform procedure has been introduced by this Court, by taking into account the amendment brought into the statute in the year 1994 MACA No.264 of 2015 7 and also taking into account the impact of inflation, on the amounts fixed as per the said amendment, while assessing the compensation for the period after the amendment was brought in. For the said purpose, a scientific data was also relied on, namely, cost inflation index determined and notified by the Ministry of Finance, Government of India. I am in full agreement with the guidelines formulated by this Court through the judgment above. As per the said judgment, an amount of Rs 2,40,000/- has to be fixed as the basic compensation for loss of dependency for the year 1995 and the said amount has to be revised in respect of the accidents occurred in subsequent years, by making an addition of ₹12,000/per year. I am of the view that, the method of computation as contemplated in the said judgment is scientific and hence can be adopted for computing the compensation in this case. 7. Coming to the facts of this case, it can be seen that this is a case in which accident occurred in the year 2009. By making the assessment of compensation for loss of dependency as per the guidelines mentioned in the case of Assainar (Supra), it would come to ₹ 408,000/- [240000+(12000X14)]. The amount awarded by the Tribunal under this head is Rs 2,70,000/- only. Hence the appellants shall be entitled for a further amount of ₹1,38,000/-under this head. MACA No.264 of 2015 8 Moving onto the compensation under other heads, it can be seen that no amounts were awarded by the Tribunal under the heads of loss of consortium and loss of estate. Similarly amount awarded under the head of funeral expenses is on lower side. It is true that, in the claim petition no amounts were claimed for loss of estate and loss of consortium. However, we cannot forget the fact that, provisions relating to compensation under the Motor Vehicles Act, are part of a welfare legislation which are intended to protect the interest of the victims of motor accident. It is a well settled the position of law, through various judicial proceedings that, the attempt of the courts should be to ensure “just compensation” to the victim, and even if the amount claimed is below the just compensation determined, the victim cannot be deprived of such higher amount, merely because of the reason that, the claimed amount was low. In other words, there is no restriction in granting compensation in excess of the amount claimed in the petition, but on the other hand, the focus of the courts should be to ensure “just compensation”. The various heads under which compensation can be granted are also clearly set out through judicial precedents including the judgment of the Hon’ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [2017(4)KLT MACA No.264 of 2015 9 662], As per the said decision, in the cases of death, the dependents shall be entitled to compensation at the rate of ₹ 15,000 each for loss of estate and funeral expenses. In this case, no amount is granted towards loss of estate and hence ₹ 15,000/-is granted. Regarding the amount under the head of funeral expenses, the amount awarded is ₹10,000 only and hence a further sum of ₹5000/-is awarded. Next aspect is relating to loss of consortium. It is true that earlier, the amounts used to be awarded under this head was only to the wife as it was commonly understood as spousal consortium. However, in the case of United India Insurance Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and Others (AIR 2020 SC 3076) the Hon’ble Supreme Court clearly held that, both the parents of the deceased shall be entitled for filial compensation at the rate of ₹40,000/- each. In such circumstances, the Appellant shall be entitled for a sum of ₹ 80,000/-(40,000x2) under that head. Thus, the appellants shall be entitled for an amount of Rs.2,38,000/- (138000+15000+5000+80000), in addition to the amount awarded by the Tribunal. The 3[rd] respondent is directed to deposit the said amount along with interest and proportionate costs as ordered by the Tribunal, within a period of three months from the MACA No.264 of 2015 10 date of receipt of copy of the judgment. Appeal is disposed of accordingly. Sd/- ZIYAD RAHMAN A.A., JUDGE pkk