Beena Sebastian & Ors. v. Managing Director, KSRTC, Sumankunju G. and The New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 7[TH] DAY OF APRIL 2022 / 17TH CHAITHRA, 1944** ## **MACA NO. 2010 OF 2012** **AGAINST THE AWARD DATED 30.04.2012 IN OPMV 1478/2010 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANTS/PETITIONERS:** - **1 BEENA SEBASTIAN AGED 42 YEARS W/O. LATE V.J.SEBASTIAN, 42/930- VALIYAPARAMBIL HOUSE, CEMETERY JUNCTION, ERNAKULAM NORTH, KOCHI-682 018.** - **2 MISS. DIA SEBASTIAN MINOR AGED 10 YEARS D/B - 23.6.2002, REPRESENTED BY HER MOTHER AND NEXT FRIEND MRS. BEENA SEBASTIAN, 42/930- VALIYAPARAMBIL HOUSE, CEMETERY JUNCTION, ERNAKULAM NORTH, KOCHI-682 018.** - **3 MRS. THANKAMMA JOSEPH AGED 72 YEARS W/O. LATE JOSEPH, 42/930- VALIYAPARAMBIL HOUSE, CEMETERY JUNCTION, ERNAKULAM NORTH, KOCHI-682 018. BY ADV SRI.K.V.RAJAN** ## **RESPONDENTS/RESPONDENTS:** - **1 MANAGING DIRECTOR, (K.S.R.T.C.)KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM, KERALA STATE-695 023.** - **2 MR. SUMANKUNJU G. (KSRTC DRIVER) S/O. JNANA MUTHAN, THADATHARIKATHU PUTHEN VEEDU, EDAPAZHANJI, PULINKKAL, THIRUVANANTHAPURAM DISTRICT-695 612.** - **3 THE NEW INDIA ASSURANCE CO. LTD. RENA PLAZA, NEAR AYYAPPAN COIL, THAMPANOOR, THIRUVANANTHAPURAM-695 081** - **BY ADVS. ALEX ANTONY SEBASTIAN P.A. GEORGE CHERIAN (SR.) LAL GEORGE LATHA SUSAN CHERIAN K.S.SANTHI** **SRI.LAL GEORGE-R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** - **ON 07.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2010 of 2012 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.1478/2010 on the file of Motor Accidents Claims Tribunal, Ernakulam (In short ‘Tribunal’). The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) out of the death of V.J.Sebastian (herein after be referred as deceased). Total compensation of Rs.7,50,000/- has been claimed. It is alleged that the accident happened due to the rash and negligent driving of the 2[nd] respondent. The 1[st] respondent is the registered owner of the offending vehicle and 3[rd] respondent is the insurer. 2. Before the Tribunal, respondents 1 and 2 filed written statement admitting the accident and denying the rashness and negligence on the part of the 2[nd] respondent. 3[rd] respondent filed written statement admitting the policy coverage with respect to the offending vehicle. 3. PW1 was examined. Exts.A1 to A14 marked from the side of the appellants/claimants. On evaluating the evidence and facts and circumstances, the Tribunal found that the accident happened due to the negligence of the 2[nd] respondent. The 3[rd] respondent is held liable to indemnify the 1[st] respondent insured as per the contract of insurance. M.A.C.A No. 2010 of 2012 **3** The Tribunal awarded a total compensation of Rs.4,96,000/- under various heads together with interest at the rate of 8% per annum. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellants/claimants (hereinafter be referred as claimants) are before this Court in appeal for the various grounds stated in the memorandum of appeal. The 3[rd] respondent insurer appeared through the learned Standing Counsel Adv.K.S.Santhi. 1[St] respondent appeared through the learned Standing Counsel, Adv.Joy George. Notice as against 2[nd] respondent is dispensed with. 5. Heard the learned counsel for the claimants and the learned Standing Counsel for the 3[rd] respondent. Lower court records were called for and perused. 6. According to the learned counsel for the claimant, accident and liability is not in dispute. The only challenge is with regard to the quantum of compensation awarded by the Tribunal. According to him, the deceased was Salesman in a medical shop. Employer of the deceased was examined as PW1, Ext.A11 income certificate issued by him was proved. But discarding the evidence of PW1, Tribunal taken income of the deceased as Rs.4,000/- per month, that according to his is improper. It is also contended that very meager amount was awarded M.A.C.A No. 2010 of 2012 **4** under other heads. Hence he seeks for enhancement of compensation on all heads. 7. It is true that PW1 was examined and Ext.A11 income certificate issued by him has been marked. But in the claim petition, claimants shown monthly income of the deceased as Rs.6,000/-. PW1 during the cross examination admitted that no documents is there with regard to the salary of the deceased. Deceased was not paying any income tax and his turn over is nil. Evidence of PW1 is not consistent with the pleadings in the claim petition also. Hence evidence of PW1 cannot be accepted in toto. 8. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** the Apex Court fixed the monthly income of a coolie, who met with a road accident in the year 2004, notionally as Rs.4,500/-. Hence, on evaluating the evidence of PW1 and pleadings in the claim petition, I am of the considered view that monthly income of the deceased can be taken as **Rs.7,000/-** inspite of Rs.6,000/- taken by the Tribunal. 9. 10. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] the Apex Court laid down the guidelines for determination of quantum of compensation in case of M.A.C.A No. 2010 of 2012 **5** death in motor accident. It has been held that compensation awarded should be just compensation and that the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. The assessment of compensation though involve certain hypothetical considerations, should nevertheless be objective and justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication and fairness and uniformity in decision making process and the decisions. Though it is not possible to have a mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. 10. In National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] a Constitution Bench of the Apex Court dealt with the concept of 'just compensation' and held that the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of “just compensation” has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. It is also M.A.C.A No. 2010 of 2012 **6** emphasized that the compensation should not be a windfall nor be a pittance. 11. In Pranay Sethi's case, the Constitution Bench laid down that in case of self employed persons or persons with fixed salary there should be addition of 10% in between the age group of 50 – 60 years and an addition of 25% between the age group of 40 - 50 and 40% where deceased was below 40 years and it is also held that the established income also provided as the income minus tax component in the case of salaried persons. 12. In the present case, monthly income of the deceased has already been fixed as Rs.7,000/-. Since the deceased was 42 years old at the time of accident, claimants are entitled for 25% enhancement towards future prospects. Then monthly income of the deceased would be Rs.8,750/- (7,000+1,750(25% of 7,000)). 13. On the question of deduction towards personal expenses in Sarla Verma's case, the Apex Court held that personal and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependants. When deceased is a bachelor and claimants are parents, normally 50% is deducted as personal and living expenses because it is assumed that a bachelor M.A.C.A No. 2010 of 2012 **7** would tend to spend more on himself. Where number of dependent family members is between 2 and 3, the deduction towards dependant family members is 1/3 and where number of dependant family members is between 4 and 6 the deduction would be ¼ and it would be 1/5 when the number of family members exceeds six and that is followed in Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65). 14. In Reshma Kumari's case, in paragraph No.38 it has been provided that one must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependant members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. 15. The suitable multiplier to be applied as held in Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121) approved by the Constitution Bench in National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662) is '14'. Claimants are three in number. So 1/3 has to be deducted towards personal and M.A.C.A No. 2010 of 2012 **8** living expenses. That would come to 8,750x12x14=14,70,000/-. From that deducting 1/3 towards personal and living expenses, the balance would Rs.9,80,000/- (14,70,000-4,90,000). Deducting the amount already awarded, the balance would be **Rs.5,32,000/-** (9,80,0004,48,000). 16. The next contention of the learned counsel is with regard to the enhancement under the conventional heads as per the directions in Pranay Sethi's case followed by Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. (2018 (18) SCC 130) In that decision, the Apex court has held that Rs.15,000/- to be awarded under the head loss of estate. Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. 17. The learned counsel would contend that the Apex Court has also held that the above amounts should be revisited on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. The learned counsel would contend that the judgment in Pranay Sethi's case was on 31.10.2017. So three years have elapsed. So the appellants are entitled for 10% enhancement on the said amounts. So according to him, the amounts to be awarded under the above heads should be Rs.16,500/- each under the head of M.A.C.A No. 2010 of 2012 **9** loss of estate and funeral expenses and Rs.44,000/- each towards loss of consortium. 18. In this context, Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024] is to be taken note of. That was a case in which the accident occurred on 09.05.2013 and the judgment of the High Court of Orissa at Cuttack in MACA No.965/2016 was dated 07.03.2018. In that decision, under the conventional heads, following the principles in Pranay Sethi's case, the claimants were found to be entitled for 10% enhancement of Rs.16,500/- towards the loss of estate and Rs.44,000/- towards spousal consortium. Following that principles, a learned Single Judge of this Court in MACA No.1290/2011 dated 10.12.2021 granted 10% escalation on conventional heads irrespective of the date of accident. In Pranay Sethi's case while fixing 10% escalation in every three years, no reference was made with respect to the date of accident also. So I am of the considered view that claimants are entitled for 10% increase on conventional heads. 19. Next is with regard to the consortium to be awarded, the law laid down by the Apex Court in Magma General Insurance Co.'s case is relevant to be taken note of. In that decision, the Apex Court M.A.C.A No. 2010 of 2012 **10** while dealing with consortium in legal parlance it has been classified into 'spousal consortium', 'parental consortium' and 'filial consortium'. The spousal consortium is described as rights pertaining to the relationship of husband – wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection and aid of the other in every conjugal relation”. (Black's Law Dictionary (5[th] ed. 1979). Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. Filial consortium is the right of the parents to compensation in the case of an accident leading to the death of a child which cause great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their life time. Children are valued for their love, affection, companionship and their role in the family unit. Detailed description regarding filial consortium has also been made therein. It states that filial consortium is the right of parents to compensation in the case of an accidental death of a child. In case where a parent has lost their minor child or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. 20. In the present case, claimants are wife, minor son and M.A.C.A No. 2010 of 2012 **11** mother of the deceased. So claimants are entitled to get Rs.44,000/each towards consortium, amounting to Rs.1,32,000/-(44,000x3). Tribunal already awarded Rs.10,000/- towards loss of consortium. That has to be deducted. Once compensation is awarded under consortium, claimants are not entitled to get any compensation towards love and affection. (See **New India Assurance Co. Ltd v. Somwati and Others** [2020 9 SCC 644]). So amount of Rs.25,000/- awarded by the Tribunal towards loss of love and affection has also to be deducted, the balance would be Rs.97,000/- (1,32,000-35,000(25,000+10,000)). Towards funeral expenses, Tribunal awarded Rs.5,000/-. Deducting that amount, the claimants are entitled to get Rs.11,500/- (16,500-5,000) towards funeral expenses. Tribunal awarded Rs.2,000/- under the head of loss of estate. Deducting that amount, towards loss of estate claimants are entitled to get Rs.14,500/- (16,500-2,000) 21. So under the conventional heads, claimants are entitled to get Rs. **1,23,000/-** (97,000+11,500+14,500). 22. So in total the claimants are entitled to get enhanced compensation of **Rs.6,55,000/-** (5,32,000+1,23,000). 23. In the result, the claimants are allowed to realize enhanced compensation of **Rs.6,55,000/-** which will carry interest at the rate of 6% M.A.C.A No. 2010 of 2012 **12** per annum from the date of petition, till realization. The enhanced compensation shall be apportioned among the appellants in the ratio of 50:30:20. The third respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment. 24. The disbursement of the amount to the claimants shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. Appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the standing counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. In the result appeal stands allowed. Parties shall bear their respective costs. **SD/-** rps/ **M.R.ANITHA, JUDGE**