Cholamandalam MS General Insurance Company Limited v Kusumam and others (MACA 6/2018 & CO 10/2019)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **WEDNESDAY, THE 31[ST] DAY OF JULY 2024 / 9TH SRAVANA, 1946** ## **MACA NO.6 OF 2018** **ARISING OUT OF THE AWARD DATED 16.09.2017 IN OP(MV) NO.640 OF 2012** **OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKARA APPELLANT/3RD RESPONDENT:** **CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED CHENNAI, NOW REPRESENTED BY ITS MANAGER CLAIMS, ACEL ESTATE, IYYATTIL JUNCTION, CHITTOOR ROAD, KOCHI - 11. ADDRESS FOR SERVICE : MATHEWS JACOB & ASSOCIATES, ADVOCATES, 61 HB, PANAMBILLY NAGAR, KOCHI - 682 036.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS & 2ND RESPONDENT:** **1 KUSUMAM W/O.LATE GOPALAN, KAITHAKKATTUSSERIL VEEDU, EVOOR NORTH MURI, CHEPPAD P.O., ALAPPUZHA DISTRICT, PIN - 690 507. 2 G.GOPU S/O.LATE GOPALAN, KAITHAKKATTUSSERIL VEEDU, EVOOR NORTH MURI, CHEPPAD P.O., ALAPPUZHA DISTRICT, PIN 690 507.** **3 K.GOPIKA D/O.LATE GOPALAN, KAITHAKKATTUSSERIL VEEDU, EVOOR NORTH MURI, CHEPPAD P.O., ALAPPUZHA DISTRICT, PIN 690 507.** **4 NAZEER U. S/O.USMAN, PULIPARAMPIL PADEETTATHIL, PALLANA P.O., THRIKKUNNAPPUZHA, ALAPPUZHA, PIN - 690 515.** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.P.J.JOE PAUL** **THIS M.A.C.A. HAVING BEEN FINALLY HEARD ON 15.07.2024, ALONG WITH CO.NO.10/2019, THE COURT ON 31.07.2024 DELIVERED THE FOLLOWING:** MACA No.6/2018 & CO No.10/2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **WEDNESDAY, THE 31[ST] DAY OF JULY 2024 / 9TH SRAVANA, 1946** **CO NO. 10 OF 2019** **ARISING OUT OF THE AWARD DATED 16.09.2017 IN OP(MV) NO.640 OF 2012 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKARA** ## **CROSS OBJECTORS/RESPONDENTS 1 TO 3:** - **1 KUSUMAM** - **W/O.LATE GOPALAN, KAITHAKKATTUSSERIL VEEDU, EVOOR NORTH MURI, CHEPPAD P.O., ALAPPUZHA DISTRICT, PIN - 690 507.** - **2 G.GOPU** - **S/O.LATE GOPALAN, KAITHAKKATTUSSERIL VEEDU, EVOOR NORTH MURI, CHEPPAD P.O., ALAPPUZHA DISTRICT, PIN 690 507.** - **3 K.GOPIKA** - **D/O.LATE GOPALAN, KAITHAKKATTUSSERIL VEEDU, EVOOR NORTH MURI, CHEPPAD P.O., ALAPPUZHA DISTRICT, PIN 690 507.** **BY ADVS.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP** **SRI.MANU SEBASTIAN SRI.P.J.JOE PAUL SRI.RAJAN G. GEORGE** ## **RESPONDENTS/APPELLANT & 4TH RESPONDENT:** - **CHOLAMANDALAM MS GENERAL INSURANCE COMPANY** - **1 LIMITED** **CHENNAI, NOW REPRESENTED BY ITS DEPUTY MANAGERCLAIMS, ACEL ESTATE, IYYATTIL JUNCTION, CHITTOOR ROAD, KOCHI-11.** MACA No.6/2018 & CO No.10/2019 3 **2** **NAZEER U. S/O.USMAN, PULIPARAMPIL PADEETTATHIL PALLANA P.O., THRIKKUNNAPPUZHA, ALAPPUZHA, PIN 690515.** **BY ADVS. MATHEWS JACOB (SR.) P. JACOB MATHEW** **THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 15.07.2024, ALONG WITH MACA.6/2018, THE COURT ON 31.07.2024 DELIVERED THE FOLLOWING:** MACA No.6/2018 & CO No.10/2019 4 ## **JUDGMENT** Dated this the 31st day of July, 2024 This appeal and the cross objection arise from the Award dated 16.09.2017 in O.P.(M.V.) No.640 of 2012 on the files of the Additional Motor Accidents Claims Tribunal, Mavelikara. While the appeal is filed by the 3rd respondent Insurance Company challenging the Award, the cross objection has been filed by the petitioners in the O.P.(M.V.) seeking enhancement. ## **Facts in Brief:** 2. Gopalan, aged 43 years, a fish vendor by avocation, while riding a motorcycle bearing No. KL-04/T-8714, from his home to the fish market, met with an accident in front of Hero Power City Showroom, north of MSM College, Kayamkulam on 27.03.2012, at 6.00 a.m. A pick up van bearing Reg.No.KL-29/C-7401 coming from the opposite direction had collided with the motorcycle causing Gopalan to fall onto the road and sustain serious injuries. He was rushed to the Govt. Hospital Kayamkulam, but succumbed to the injuries on the way. The wife, son and daughter of deceased MACA No.6/2018 & CO No.10/2019 5 Gopalan filed the above O.P.(M.V.) alleging that the accident happened due to the rash and negligent driving of the pick up van which was owned by the 2[nd] respondent and driven by the 1[st] respondent in the O.P.(M.V). The appellant herein, the insurer of the pick up van, was arrayed as the 3[rd] respondent in the O.P.(M.V.). **Proceedings before the Tribunal:** 3. The driver and owner, viz., the 1[st] and 2[nd] respondents in the O.P. (M.V.) remained _exparte_ . The appellant Insurance Company filed a written statement admitting the insurance policy as valid and subsisting during the relevant time. Appellant, however, contended that the accident occurred due to the negligence of deceased Gopalan. It was also contended that since the driver of the vehicle had no valid driving licence to drive the pick up van at the time of the accident, the Insurance Company is not liable to indemnify the owner. Appellant also challenged the amount of compensation sought under various heads and sought dismissal of the O.P.(M.V). Tribunal framed four issues and the parties went to trial. Neither side examined any witnesses. On behalf of respondents 1, 2 and 3, Exts.A1 to A10 were marked. Ext.B1 was MACA No.6/2018 & CO No.10/2019 6 marked by the respondents. ## **Award of the Tribunal:** 4. The Tribunal, vide Award dated 16.09.2017 held that the appellant is liable to pay to respondents 1, 2 and 3 a total compensation of Rs.11,06,856/- with interest @ 7.5% per annum from the date of petition with proportionate cost. While the appellant challenged the sustainability of the said Award, respondents 1, 2 and 3 have filed the above cross objection seeking enhancement of compensation granted therein. 5. Heard Sri.Mathews Jacob, learned Senior Advocate instructed by Sri.P.Jacob Mathew appearing on behalf of the appellant – Insurance Company and Sri.P.J.Joe Paul, the learned counsel appearing on behalf of the cross objectioners (viz., respondents 1, 2 and 3 in the M.A.C.A). ## **Appellant's contentions in brief:** - ●Tribunal overlooked the contention of contributory negligence on the part of the deceased Gopalan. It ought to have fixed some contributory negligence on him. - ●While the original claim was only Rs.9,00,000/-, Tribunal had MACA No.6/2018 & CO No.10/2019 7 awarded Rs.11,06,856/- with interest @ 7.5%. The compensation awarded is not just and reasonable. - ●Tribunal erred in taking 30% future prospects to the notional income of the deceased. It ought to have been only 25% based on the decision in **National Insurance Company Ltd.** - **v. Pranay Sethi** [(2017) 16 SCC 680]. - ●Tribunal erred in granting Rs.25,000/- each under the heads of pain and suffering as well as towards funeral expenses. This contravenes the dictum in **Pranay Sethi** (supra). - ●Tribunal erred in awarding an amount of Rs.25,000/- under the head of pain and suffering as compensation under the said head can be granted only in the case of injury and not in cases of death ( **United India Insurance Co. Ltd. v. Satinder** - **Kaur @ Satwinder Kaur and others** [2020 SCC OnLine SC 410]. - ●Tribunal erred in awarding Rs.50,000/- for loss of estate and Rs.1,00,000/- each for loss of consortium and for loss of love and affection. - ●Tribunal ought not have granted 12% interest from the date of MACA No.6/2018 & CO No.10/2019 8 the Award, if the Award amount is not deposited within 90 days from the date of the Award. - ●The contentions for enhancement made in the cross objection are not sustainable. - ●The contention in the cross objection that Rs.50,000/- ought to have been awarded towards pain and suffering is not sustainable in law. ## **Respondents' (Cross objectors) contentions in brief:** - ●Compensation granted by the Tribunal is inadequate. - ●Notional income of Rs.5,500/- per month arrived at by the Tribunal is erroneous in view of the dictum in **Soman v. Jinesh James and others** [2020 (4) KHC - 623]. The same ought to have been Rs.8,500/-. - ●Grant of compensation for pain and suffering is not prohibited in death cases, post the decision in **Satinder Kaur** ’s (supra) case. Judgments of this Court in **Oriental Insurance Co. Ltd. v. Vijayamma** (2023 KHC 9382) and **Mable and others v. Lenoy Sebastian and others** (2024 KHC OnLine 112) vouch safe for this MACA No.6/2018 & CO No.10/2019 9 proposition. Hence Rs.25,000/- granted by the Tribunal towards pain and suffering cannot be termed as illegal or unsustainable. - ●Tribunal ought to have granted Rs.50,000/- towards pain and suffering taking note of the severity of the injuries that were occasioned to the deceased. - ●Grant of Rs.50,000/- under the head of loss of estate is inadequate and Rs.1,00,000/- ought to have been awarded in the facts and circumstances of the case. - ●Grant of Rs.1,00,000/- under the head ‘loss of love and affection’ is inadequate and an amount of Rs.2,00,000/ought to have been granted as the 2[nd] and 3[rd] cross objectioners had lost the love and care of their father. ## **Discussion and findings:** 6. The Tribunal computed the income of the deceased on a notional basis and had arrived at an amount of Rs.5,500/- per month. As per the dictum laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [2011 KHC 4675], a coolie was fixed with a notional MACA No.6/2018 & CO No.10/2019 10 income of Rs.4,500/- per month in the year 2004. Subsequently, the Hon'ble Supreme Court has also laid down that there would be incremental enhancement in the case of even self - employed individuals in the unorganized sector [ **National Insurance Co. Ltd.** **v. Pranay Sethi and others** (2017 (5) KHC 350)]. Guided by the said dictums this Court has in **Soman v. Jinesh James and Others** (2020 (4) KHC 623) held as follows: _“5. ….... with respect to an unspecified job of a coolie considering the increase in cost of living and economic advancements over the years, it can be safely assumed that even a coolie would be eligible for incremental addition of at least Rs.500/- in every subsequent year. In such circumstances, the appellant who is a coolie, is entitled to be fixed with a notional income of Rs.7500/- as on the year of accident, which is 2010.”_ Following the above precedent, which lays down the law on the point, the monthly salary of the deceased has to be enhanced from Rs.5,500/- to Rs.8,500/- per month. The annual income of the deceased is thus recomputed at Rs.1,02,000/-. 7. The Tribunal has in the Award fixed future prospects at 30%. Supreme Court has regarding future prospects held in **Pranay Sethi** (supra) as follows: MACA No.6/2018 & CO No.10/2019 11 _“59. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one’s income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is selfemployed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income, unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the_ MACA No.6/2018 & CO No.10/2019 12 _percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of 46 percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.”_ There is hence merit in the contention of the learned Senior Advocate that the Tribunal erred in adding future prospects at 30%. Thus following the dictum reproduced above, loss towards future prospects is re-fixed at 25% . 8. The compensation for loss of dependency has to be recomputed basing on the annual income and future prospects arrived at as above. The monthly income of the claimant has already been fixed as Rs.8,500/- per month. While granting 25% enhancement towards future prospects, the monthly income will come to Rs.10,625/- [8,500 + 2,125 (25% of 8,500)]. Retaining the MACA No.6/2018 & CO No.10/2019 13 multiplier at 14 and deducting 1/3rd of the monthly income towards personal expenses [10,625–(10,625x1/3)= 7083], the compensation for loss of dependency is computed at Rs.11,90,000/- [7083x12x14 = 11,89,944 (Rounded off to 11,90,000)]. 9. The Tribunal has awarded Rs.1 lakh under the head love and affection and a further amount of Rs.1 lakh towards loss of consortium. There is merit in the contention of the learned Senior Advocate that compensation would not lie under the said two heads simultaneously and it will have to be confined to either of them. In **Magma General Insurance Co. Ltd. v. Nanu Ram and others** [2018 KHC 6697], Supreme Court interpreted “consortium” to be a compendious term, which encompasses spousal consortium, parental consortium, as well as filial consortium. 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. In **Satinder Kaur** (supra), the Supreme Court held that : _“The Motor Vehicles Act, 1988 is a beneficial legislation which has been framed with the object of providing relief to the victims, or their families, in cases of genuine claims. 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_ MACA No.6/2018 & CO No.10/2019 14 _Consortium.”_ The Supreme Court then proceeded to consider the practice of awarding both loss of consortium and loss of love and affection and held as follows: _“The amount to be awarded for loss consortium will be as per the amount fixed in Pranay Sethi (supra). At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi (supra), has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses._ _In Magma General (supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium. The Tribunals and High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head.”_ In view of the above dictum, when compensation is awarded under the head loss of consortium, no separate compensation can be awarded under the head ‘loss of love and affection”. Accordingly, the amount of Rs.1,00,000/- awarded by the Tribunal under the head loss of love and affection is to be deducted from the total MACA No.6/2018 & CO No.10/2019 15 ## compensation awarded. 10. As regards the compensation for loss of consortium, ## Supreme Court in **Pranay Sethi** (supra) has held as follows: _“It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/and Rs.15,000/respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years.”_ Accordingly, taking note that the deceased Gopalan is survived by his wife, son and daughter, the amount of Rs. 1,00,000/- awarded by the Tribunal under the head loss of consortium is re-fixed at Rs.1,20,000/- . (40,000 x 3 = 1,20,000/-) 11. As regards funeral expenses, the Tribunal has granted a compensation of Rs.25,000/-. Following the dictum in **Pranay Sethi** (supra) referring to funeral expenses reproduced above, the same is re-fixed at Rs.15,000/-. 12. Similarly, as regards compensation for loss of estate, the Tribunal has granted an amount of Rs.50,000/-. Following the MACA No.6/2018 & CO No.10/2019 16 dictum in **Pranay Sethi** (supra) referring to loss of estate reproduced above, the same is re-fixed at Rs.15,000/-. ## **Compensation for pain and suffering in death cases:** 13. There is substantial divergence of opinion between the counsel appearing for both sides regarding the compensation awarded under the head ‘pain and suffering’. Learned Senior Advocate appearing for the appellant Insurance Company contends that in a case of death, no compensation can be awarded towards pain and suffering and that the said head is to be limited to injury cases. He buttresses the said contention pointing to the dictum laid down by the Supreme Court in **Sarla Verma and others** **v. Delhi Transport Corporation and another** (AIR 2009 SC 3104), wherein it had been held as follows: “ _But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.”_ This observation was subsequently referred to again by the Supreme Court in **Satinder Kaur’s** (supra) case. This contention of the learned Senior Advocate is vehemently opposed by Sri.Joe Paul, learned counsel appearing for the cross objectioners, on more MACA No.6/2018 & CO No.10/2019 17 than one ground. He submits that except for the above reproduced observation of the Supreme Court in both **Sarla Verma** and **Satinder Kaur** (supra), there is no independent discussion as to the grant of compensation under the said head in the said judgments presumably for the reason that it was not a contentious issue in the said cases. Learned counsel further submits that the said observation does not lay down any new law with regard to payment of compensation under the head of ‘pain and suffering’ and seeks to substantiate the said contention by pointing to the judgment of this Court in **Oriental Insurance Co. Ltd. v. Vijayamma** (supra) wherein the question was considered in detail and it was concluded as follows: _“In Satinder Kaur, the Hon'ble Supreme Court held that in death cases, compensation can be awarded under the heads loss of estate, loss of consortium and funeral expenses alone. It was held that no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased. However, there is no detailed enquiry in the judgment as to whether the pain and sufferings of the deceased from the time of the accident till the time of his death is to be compensated as an addition to his estate. Since the Hon'ble Supreme Court in Satinder Kaur (supra) did not specifically state that no amount should be paid for pain and suffering of the deceased, I am of the opinion that going by the decisions referred above, there is justification for the claim made by the claimants.”_ MACA No.6/2018 & CO No.10/2019 18 14. The learned counsel also refers to a subsequent judgment of this Court in **Mable and others v. Lenoy Sebastian and others** (supra) which considered the same question concerning grant of compensation for pain and suffering in death cases and the learned Judge, after a detailed discussion on various facets of the question, opined as follows: _“It is true that there are certain observations in Satinder Kaur and Sarla Varma restricting the right to claim compensation for pain and suffering. However, all the observations made therein were pertaining to the pain and suffering and mental agony suffered by the relatives of the deceased consequent to the death of such deceased, and those observations were not pertaining to the pain and sufferings of the deceased himself. The crucial aspect to be noticed is that the right of the injured to claim compensation for his pain and suffering due to the injuries sustained in the accident has accrued to him the moment the accident occurred and the injuries sustained. Thereupon, it has become a vested right of the injured. Therefore, by virtue of the statutory stipulations contained in the provisions of the Kerala Torts (Miscellaneous Provisions) Act, 1976, the right to sue for the said compensation would survive upon the legal heirs of the injured died at a later point of time and, they can pursue the said claim. Even though in Pranay Sethi’s case (supra), the compensation under the head of pain and suffering is not mentioned, in the light of the statutory provisions in the Kerala Torts (Miscellaneous Provisions) Act, and the principles laid down by the Honourable Supreme Court in Urmila Shukla’s case (supra), nothing would preclude this court from granting compensation under the said head.”_ ## The learned Judge had thereafter taking note of **Vijayamma** 's case MACA No.6/2018 & CO No.10/2019 19 ## (supra) concluded that: _“In the said decision also, this Court specifically arrived at the conclusion that compensation for pain and suffering of the deceased can be claimed by the legal heirs. This Court rendered the said decision after referring to Satinder Kaur (Supra). I completely agree with the legal proposition made by this Court in the aforesaid decision. Thus, in the light of the aforesaid observations, I am of the view that the amount awarded by the tribunal towards pain and suffering is not to be interfered with. This is particularly because it is evident from the records that the death of the deceased was after 8 months of the accident, and he was under treatment till such time. The right to sue for compensation for pain and suffering became a vested right upon the deceased immediately upon sustaining the injuries. The said right to sue is survived to the relatives of the deceased on his death. In such circumstances, the challenge raised by the insurance company against the said head is hereby rejected.”_ Basing on the said decisions rendered by this Court in **Vijayamma** and **Mable** s' cases (supra), the learned counsel for cross objectioners submits that the dictum in **Sarla Verma** and **Satinder Kaur** s' cases (supra) does not preclude payment of compensation under the head ‘pain and suffering’ in death cases. He also points to the subsequent precedent of the Supreme Court in **Sanobanu Nazirbhai Mirzaand and others v. Ahmedabad Municipal Transport Service** [(2013) 16 SCC 719] and **Pushkar Mehra v. Brij Mohan Kushwaha and others** [(2015) 12 SCC 688]. MACA No.6/2018 & CO No.10/2019 20 15. In the light of the above legal position, I concur with the dictum in **Vijayamma** 's case (supra) that since the Hon'ble Supreme Court in **Satinder Kaur** 's case (supra) did not specifically state that no amount should be paid for pain and suffering of the deceased, compensation under the head pain and suffering can be justifiably claimed by the legal heirs. I note that in **Mable** 's case (supra) the learned Judge had after concurring with the view in **Vijayamma** 's case (supra) had also taken note of the fact that the death of the deceased in that case was after 8 months of the accident and that he was under treatment till such time. However, in the case at hand, Gopalan had succumbed to death on his way to the hospital from the site of the accident and there was no interregnum between the injury and death. Still pain from the fatal injuries caused in the accident would have been invariably suffered by him. This aspect has been considered by this Court in **Jyni and others v. Raphel P.T. and others** [2016 (2) KHC 870], wherein it has been held as follows: > “ _Death in an accident is generally the result of violent impact on the body resulting in serious injuries causing severe pain. The magnitude of the ordeal may vary from case to case depending upon the nature of injuries sustained. In cases of_ MACA No.6/2018 & CO No.10/2019 21 _instantaneous deaths also pain and suffering is invariably present, as in the case of survival for hours or days. In cases of instantaneous death as well as cases where the deceased was unconscious between the time of accident and the time of his death, some notional amount is payable under the head pain and suffering. A slightly higher amount can be awarded under this head, if the death is not instantaneous. Therefore, a conventional amount in the range of Rs.5,000/- to Rs.15,000/- could be awarded under the head pain and suffering in such cases. In the instant case, the deceased succumbed to injuries on the date of accident itself. In such circumstances, Rs.10,000/awarded by the Tribunal under the head pain and suffering represents just and reasonable compensation, which requires no enhancement in this appeal.”_ Accordingly, the Award of an amount of Rs.25,000/- by the Tribunal towards pain and suffering cannot, in the facts and circumstances of the case, be termed as unsustainable and the same is retained. ## **Lack of driving licence for the driver:** 16. As regards the contention of the appellant that the driver of the pick up van was not possessing a valid driving licence during the time of the accident and hence the appellant is not bound to indemnify the owner of the van (4[th] respondent in the M.A.C.A.), it is trite that if the driver of the offending vehicle does not possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the Insurance Company to pay the victim or the legal heirs/dependents and then to recover the amount from the MACA No.6/2018 & CO No.10/2019 22 owner of the offending vehicle. **[** See **Shamanna and another v. Divisional Manager** , **Oriental Insurance Company Ltd. and others** [(2018) 9 SCC 650]; **Rani and others v. National Insurance Company Ltd. and others** [(2018) 8 SCC 492]; **Parminder Singh v. New India Assurance Company Ltd. and others** [(2019) 7 SCC 217] **]** . In view of the above dictum, the finding of the Tribunal to the said effect in para 17 (4) of the Award is valid and sustainable. 17. In the light of the discussion as above, the appeal and cross objection are disposed of, modifying the compensations granted under the relevant heads of the Award as mentioned below: - ●Monthly income of the deceased is enhanced from Rs.5,500/to Rs.8,500/-. - ●Compensation for loss of dependency is re-fixed at Rs.11,90,000/-. - ●Compensation for love and affection is deleted and compensation for loss of consortium (for the three legal heirs) is fixed at Rs.1,20,000/- (40,000x3 =1,20,000) - ●Compensation for loss of estate is reduced to Rs.15,000/-. MACA No.6/2018 & CO No.10/2019 23 ●Compensation for funeral expenses is reduced to Rs.15,000/-. Amounts granted under other heads in the Award remain unaltered. ## **Conclusion:** 18. After hearing both sides and on appreciation of the pleadings, materials on record and the settled law as per the precedents cited above, I conclude that compensation granted under the Award is to be modified and re-calculated as per the table ## below: ||Sl.<br>No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(Rs.)|Amount<br>modified and<br>recalculated by<br>this Court (Rs.)| |---|---|---|---|---| ||1|Extra nourishment damage to<br>clothing|1,000|1,000| ||2|Others including medical<br>expenses,<br>bystanders<br>expenses, ambulance charges<br>funeral expenses,<br>misc. Expenditure.|5,000<br>25,000|5,000<br>15,000| ||3|Pain and sufferings|25,000|25,000| ||4|Compensation for loss of<br>dependency|8,00,856|11,90,000| ||5|Compensation for loss of :<br>Love and affection<br>consortium<br>estate of the deceased<br>earning power|1,00,000<br>1,00,000<br>50,000|1,20,000<br>15,000| ||Total||11,06,856|13,71,000| |||||| The Award of the Tribunal is modified to the above extent entitling respondents 1 to 3 in the M.A.C.A. to a total amount of MACA No.6/2018 & CO No.10/2019 24 Rs.13,71,000/- (Rs.11,06,856/- granted by the Tribunal + Rs.2,64,144/- enhanced in appeal) under the respective heads as tabulated above. Respondents 1 to 3 will be entitled to interest @ 7.5% per annum on the enhanced amount. The appellant Insurance Company shall deposit before the Tribunal amounts payable as per the Award, less the amounts already deposited, if any, within a month from the date of this judgment. The Tribunal shall disburse the enhanced compensation with interest and cost to respondents 1 to 3 in the M.A.C.A. in accordance with law. Sd/- **SYAM KUMAR.V.M. JUDGE** csl