Augustine Thomas & Marykutty Augustine & Vidya Augustine v. P Balasundaram & E Mohammed and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944 MACA NO. 2041 OF 2014** **AGAINST THE ORDER/JUDGMENT DATED 30.12.2013 IN OPMV 628/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA** ## **APPELLANTS/PETITIONERS:** 1 AUGUSTINE THOMAS S/O. THOMAS, MANIMALA HOUSE, THADIYAMPAD KARA, IDUKKI VILLAGE. 2 MARYKUTTY AGUSTINE W/O. AUGUSTINE, MANIMALA HOUSE, THADIYAMPAD KARA, IDUKKI VILLAGE. 3 VIDYA AUGUSTINE D/O. AUGUSTINE THOMAS, MANIMALA HOUSE, THADIYAMPAD KARA, IDUKKI VILLAGE. BY ADVS. SRI.T.V.GEORGE SRI.JIMMY GEORGE THADATHIL ## **RESPONDENTS/RESPONDENTS:** 1 P BALASUNDARAM S/O. PERUMAL, PEPS FEEDS, P.A. TOWERS, 15 SIDCO ESTATE, PARAMATTI ROAD, NAMAKKAL, TAMIL NADU. 2 E. MOHAMMED, S/O. EMAM, 1/422, OLD POST OFFICE, ST. KODIYAMPALAYAM, MANAMEDU.PO, MUSIRI T.K. TRICHY DISTRICT. 3 THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE NO.II, DR. SANKARAN ROAD, NAMAKKAL, TAMILNADU. SRI.P.K.MANOJKUMAR, SC FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA 2041/14 2 C.JAYACHANDRAN, J. -----------------------------------MACA No.2041 of 2014 ------------------------------------Dated this the 22[nd] day of July, 2022 ## J U D G M E N T 1. The legal heirs of one Mr.Wills Augustine, who met with an accident and succumbed to the injuries on 29.4.2006, when he was only 20 years old, are the appellants herein. They were the claimants in O.P(M.V) No.628/2007 of Motor Accidents Claims Tribunal, Thodupuzha. 2. Heard Sri.T.V.George, learned counsel appearing for the appellants and Sri.P.K.Manoj Kumar, learned Standing Counsel for the third respondent/insurance company. 3. Learned counsel for the appellants addressed arguments on three counts. The first is with respect to MACA 2041/14 3 reckoning of notional income. The appellants' claim was that Sri.Wills Augustine was a B.B.A student at Bangalore at the time of accident. He was having a part time employment fetching Rs.5,000/- per month. According to the learned counsel, the deceased was a bright student having first class in S.S.L.C, Plus Two and in the first year B.B.A examinations. As noted by the Tribunal, he was a brilliant student, wherefore reckoning of his monthly income for the purpose of dependency at Rs.4,000/- is grossly inadequate is the submission of the learned counsel. The appellants claimed Rs.10,000/-. In answer to the above claim, learned counsel for the 3[rd] respondent/Insurance Company submitted that the accident is of the year 2006 and that admittedly, the deceased was a student at that time. No proof with respect to his part time job claimed was produced, wherefore the income reckoned by the Tribunal cannot be said to be insufficient. 4. This Court is not in a position to accept the contention of the learned counsel for the third MACA 2041/14 4 respondent/Insurance Company. It is true that no proof in respect of the part time employment has been produced before the Tribunal. However, the fact that the deceased was a bright and brilliant student as found by the learned Tribunal looms large. He was a consistent performer in academics, with a first class in S.S.L.C and Plus Two examinations, followed by a first class in the first year examinations of B.B.A. He was studying at Bangalore. His life was put off only because of the accident. There is no quarrel before this Court as regards the negligence on the part of the offending vehicle. Therefore, reckoning Rs.4,000/- as the monthly income for the purpose of dependency appears to this court as insufficient. Although the appellants have claimed Rs.10,000/- per month, this Court is of the opinion that it would be just and reasonable to fix the monthly income for the purpose of dependency at Rs.8,000/-, even after reckoning the fact that the accident occurred in the year 2006. It is so done. MACA 2041/14 5 5. The second ground canvassed by the learned counsel for the appellants is with respect to the future prospects, which is liable to be taken at 40% of the income reckoned, going by the judgment in National Insurance Co. Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] . This was not reckoned by the Tribunal, presumably for the reason that the judgment of the Constitution Bench of the Hon'ble Supreme Court in Pranay Sethi (supra) was delivered in the year 2017. There is no quarrel with respect to that claim and therefore, future prospects at the rate of 40% is liable to be reckoned. 6. The third count is with respect to loss of consortium. Rs.25,000/- each is reckoned towards loss on account of love and affection, as against the legally entitled consortium of Rs.40,000/- per person. According to the learned counsel for the appellants, the deceased was survived by his parents and his unmarried sister, each being entitled to Rs.40,000/-. This contention was strongly opposed by the learned counsel for the Insurance Company by MACA 2041/14 6 pointing out that the siblings are not entitled to any consortium, going by the judgment of the Hon'ble Supreme Court in Magma General Insurance Company Ltd. v. Nanu Ram @ Chuhru Ram and Others [2018 KHC 6697 : (2018) 18 SCC 130] . There cannot be any quarrel that parents are entitled to Rs.40,000/- each. The solitary point of dispute is with respect to the compensation on account of consortium to the sibling, the unmarried sister of the deceased. Learned counsel invited the attention of this Court to paragraph no.6 of the judgment in Magma General Insurance Company Ltd. (supra), where various contentions of the Insurance company have been dealt with in seriatim. The ground raised in that case vide paragraph no.6.iv is that the father and sister of the deceased could not be considered as dependents, and were not entitled to compensation and that in the case of death of a bachelor, only the mother could be considered to be a dependent. In paragraph no.8.7, the Hon'ble Supreme Court found that consortium is a compendious term which encompasses spousal consortium, parental consortium and MACA 2041/14 7 filial consortium, whereafter, the Hon’ble Supreme Court discussed the ratio/logic behind grant of consortium in the following words:- “8.7 ………... The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.……….” 7. Learned counsel invited the attention of this Court to the concluding portion of paragraph no.8, where the Hon'ble Supreme Court deem it appropriate to award the father and unmarried sister of the deceased a sum of Rs.40,000/- each for loss of filial consortium. In answer to the above claim of the learned counsel for the appellants, learned counsel for the third respondent/Insurance company relied upon the judgment of a learned Single Judge of this Court in Kunjandy v. Rajendran [2020 (2) KLT 315] , where the judgment in Magma (supra) has been discussed, explained and MACA 2041/14 8 distinguished. The relevant discussion in paragraph no.43 of the judgment is extracted herein below:- “43. The concept of spousal consortium to the surviving spouse; parental consortium to the children of the deceased; and filial consortium to the parents of the deceased child laid down by the Apex Court in Magma General Insurance Company Ltd. does not speak anything as to the right of siblings to get compensated under the head loss of consortium. In Magma , after noticing the fact that the mother of the deceased had pre-deceased him, his father was aged 65 years old, his sister was unmarried, and the deceased was contributing a part of his meagre income to the family for their sustenance and survival, the Apex Court granted a sum of Rs.40,000/- as compensation to unmarried sister of the deceased under the head filial consortium, after maintaining the compensation (Rs.50,000/- x 2) awarded by the High Court towards loss of love and affection, which can only be treated as a direction issued by the Apex Court in exercise of its powers under Art. 142 of the Constitution of India to do proper justice and the exercise of such power cannot be considered as law laid down by the Apex Court under Art. 141 of the Constitution of India.” MACA 2041/14 9 According to the learned Single Judge, Magma (supra) does not speak anything about the right of the siblings to get compensated under the head loss of consortium. The direction given in Magma (supra) is liable to be construed as one given in exercise of the powers under Article 142 of the Constitution is the finding of the learned Single Judge. 8. Having bestowed my attention to the two judgments relied upon by the respective parties, I find myself difficult to endorse the distinction drawn in Kunjandy (supra). This Court primarily takes stock of the contention raised by the insurance company in Magma (supra) at paragraph no.6, wherein it was pointed out that neither the father nor the sister is entitled to be compensated under the head consortium and that in the case of death of a bachelor, only the mother could be considered as a dependent. The legal resolution in Magma (supra) has to be understood in the context of this specific contention raised by the Insurance Company, which, going by the outcome in Magma (supra), MACA 2041/14 10 can only be treated as rejected. The second aspect, which this Court is inclined to take note of is the concept of consortium, as has been expatiated in Magma (supra) . At the risk of repetition, this Court takes note that the right to consortium would include company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. This observation of the Hon'ble Supreme Court is of seminal importance. Just like a father, spouse, son or a daughter, the sister is also deprived of the above referred parameters on account of the death of her brother. If compensation on account of consortium has its roots in the parameters aforesaid, a sister or a sibling cannot be singled out. The contention of the Insurance Company, as was canvassed in Magma (supra), as also, before this Court that a 22 year old sister cannot be a dependent of a 20 year old brother (deceased) appears to be misconceived. It is not the dependency component, which precisely defines one's eligibility for consortium. Instead, it is the parameters referred to in Magma (supra), which defines MACA 2041/14 11 and determines one's eligibility for consortium. If that be so, this Court finds no reason to exclude the sister from the purview of compensation under the head consortium. This Court is only following what has been held in Magma (supra) in respect of the concept of consortium, as also, in respect of the relief granted therein. 9. As regards Kunjandy (supra), the reasons specifically culled out in paragraph no.43, interpreting the judgment in Magma (supra), this Court notices that there is nothing in the judgment in Magma (supra) to show that the reliefs granted therein, by way of consortium to the sibling, was in the peculiar facts and circumstances obtaining in that case. Nor is there anything contained in Magma (supra), which would go to show that grant of consortium to the sister in that case was in exercise of the special powers under Article 142 of the Constitution. This Court is therefore persuaded to grant compensation on account of consortium to the sister as well. MACA 2041/14 12 10. Simultaneous with recognising the claim for consortium, this Court also would note that the amounts granted under the heads 'love and affection' and 'pain and suffering' are to be obliterated. It is also noticed that the claimants are entitled to enhancement @ 10% on the conventional heads, namely 'loss of estate' and 'consortium', as provided for in Pranay Sethi (supra) and as granted in N.Jayasree and Others v. Cholamandalam MS General Insurance Company Ltd. [AIR 2021 SC 5218] and Rasmita Biswal & Ors v. Divisional Manager, National Insurance Company Ltd. & Anr. [2022 (1) KLT 121 (SC)]. Enhancement @ 10% under the head 'funeral expenses' is refused as an expenditure already incurred years before. 11. In the result, this M.A.C.A is allowed and the amount of compensation payable to the appellants is re-worked as indicated in the tabular column shown herein below:- MACA 2041/14 13 |Sl.<br>No.|Head of Claim|Amount awarded<br>by the Tribunal<br>(Rs.)|Total amount<br>after<br>enhancement in<br>appeal (Rs.)| |---|---|---|---| |1|Loss of dependency|4,32,000|* 12,09,600| |2|Transportation expense|5000|5000| |3|Funeral expenses|20000|15000| |4|Damage to clothing|1000|1000| |5|Pain and suffering|15000|Nil| |6|Loss of love and affection|50000<br>+25000|Nil| |7|Compensation for loss of<br>consortium (40,000x3)|Nil|132000<br>(120000+12000)| |8|Loss of estate|10000|16500<br>(15000+1500)| ||Total|5,58,000|13,79,100| ||Amount enhanced =Rs.8,21,100/-(13,79,100 – 5,58,000)||| *[8000x(140/100)x12x(1/2)x18] 12. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amounts at the rate of 5% from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimant/s shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be MACA 2041/14 14 transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. ## 13. The appeal is allowed as indicated above. Sd/C.JAYACHANDRAN JUDGE jg