ICICI Lombard General Insurance Co. Ltd. v. Ramachandran, Jayasree, Suresh V. and Gobi R. (MACA No. 992 of 2014)

# _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 10[TH] DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943_ ## _MACA NO. 992 OF 2014_ _AGAINST THE ORDER/JUDGMENT IN OPMV 279/2008 OF MOTOR ACCIDENT CLAIMS_ _TRIBUNAL, PATHANAMTHITTA_ ## _APPELLANT/S:_ _ICICI LOMBARD GENERAL INSURANCE CO. LTD., KANNANKERI ESTATE, 3RD FLOOR, SHANMUGHAM ROAD, MARINE DRIVE, ERNAKULAM, PIN-670 001._ _BY ADV SRI.R.AJITH KUMAR (128/84)_ ## _RESPONDENT/S:_ - _1 RAMACHANDRAN, AGED 49 YEARS, S/O.CHAYICHAN, CHANKINGANAL THODI HOUSE, RANDATHANI P.O, MALAPPURAM.676 510._ - _2 JAYASREE, AGED 44 YEARS, W/O.RAMACHANDRAN, CHANKINGANAL THODI HOUSE, RANDATHANI P.O, MALAPPURAM.676 510._ _3 SURESH V., 100-1, SOUTH RAILWAY ROAD, KUMARASWAMY PET, DHARMAPURI P.O, DHARMAPURI DISTRICT, TAMILNADU-609 001._ _4 GOBI R., S/O.RAMAN M., 41/20A, MARULKARAN STREET, DHARMAPURI P.O, DHARMAPURI DISTRICT, TAMILNADU - 609 001._ _BY ADVS. SRI.N.BABU VARGHESE SRI.T.K.KOSHY_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION_ _ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.992/2014 2 ## **JUDGMENT** This is an appeal filed by the insurance company challenging the quantum of compensation awarded by the Tribunal in O.P. (MV).No.279 of 2008. The claim petition was filed by the respondents 1 and 2 in this appeal seeking compensation for the death of one Shreejith, who was aged 12 years at the time of accident. He was the son of the respondents 1 and 2. The total amount of compensation awarded by the Tribunal was Rs.6,96,000/-. 2. Heard both the sides. The learned counsel for the appellant insurance company contends that the amount awarded by the Tribunal under the head of loss of dependency is Rs.4,50,000/- and which is on the higher side. In support of the said contention the learned counsel points out that in the decision rendered by the Hon’ble Supreme Court in **Rajendra Singh v. National Insurance Company Ltd. [(2020) 7 SCC 256]** , in M.A.C.A.No.992/2014 3 respect of an accident occurred on 25.12.2012, wherein a boy aged 12 years died, the Hon’ble Supreme Court fixed the compensation for loss of dependency as Rs.2,70,000/-. On the other hand, the learned counsel for the respondents 1 and 2 placed reliance upon the judgment of this Court in **National Insurance Company Ltd. v. K.K.Assainar (2019 (4) KLT 39)** wherein this Court referred to a large number of decisions rendered by the Hon’ble Supreme Court and also by this Court. After elaborate discussion on the legal principles, a specific formula was prescribed for determining the compensation in respect of claims for the death of children up to the age of 15 years. On examining the various aspects of this case, I am of the view that in the light of the principles broadly discussed by this Court in **Assainar** (supra), which was based on the legal principles laid down by the Hon’ble Supreme Court in various decisions, the same can be applied in this case. The crucial aspect to be noticed in this regard is that the guidelines stipulated by this Court in **Assainar** (supra) includes assessment of compensation by taking into account the periodical increase in M.A.C.A.No.992/2014 4 the income consequent to inflation and other related aspects. Therefore, it represents a scientific finding which can be safely relied on for determining compensation in respect of accidents occurred at any point of time. The learned counsel for the insurance company highlighted that the said decision cannot be made applicable to this case as the said judgment pertains to a student aged 15 years, whereas in this case there is no material to arrive at the conclusion that he was a student. However, I am not inclined to accept the said contention. In the social conditions prevailing in the State of Kerala, a child aged 12 years would certainly be a student and it is practically impossible to conclude otherwise, in the absence of any materials, suggesting such possibility. 3. With regard to the reliance on the judgment in **Rajendra Singh** (supra), it can be seen from the observations contained therein that, there is nothing to indicate as to whether the financial and social background of the claimants therein were similar to that of this case. In that case, the Tribunal fixed the M.A.C.A.No.992/2014 5 total compensation as Rs.2,95,000/- i.e Rs.2,70,000/- towards loss of dependency and Rs.25,000/- towards funeral expenses. The appeal filed by the claimant seeking enhancement of compensation was dismissed by the High Court and challenging the same, they approached the Honourable Supreme Court. There was also a challenge against the finding of contributory negligence at the rate of 50%. With regard to the quantum of compensation, the basic challenge before the Honorable Supreme Court was on the ground of additional compensation for future prospects of the deceased child. The Honourable Supreme Court found that, in the case of children, future prospects need not be considered while assessing the compensation. The deduction of 50% towards contributory negligence was also set aside. Thus, it is evident that, there was no question before the Honourable Supreme Court, as to the amount to be awarded under the head of compensation for loss of dependency in respect of the death of the child, based on notional income. In this case, the claim of the respondent is not based on future prospects and hence the decision in **Rajendra Singh,** M.A.C.A.No.992/2014 6 cannot be made applicable to the facts of this case. 4. In such circumstances, I am of the view that the calculation as per the guidelines laid down in **Assainar** (supra) can be accepted. While computing the compensation in the manner as mentioned in **Assainar** (supra) the amount of compensation under the head of loss of dependency would come to Rs.4,70,000/(47000 x 15 x 2/3). (As per the table prepared by the learned judge in the said judgment, in respect of the accident occurred in the year 2007-2008 the annual income to be taken is Rs 47,000/-. In this case the accident occurred on 20.12.2007 and hence it falls in the financial year 2007-2008). The award under the head of loss of dependency by the Tribunal is Rs.4,50,000/-. Therefore, the compensation awarded by the Tribunal is lesser by Rs.20,000/-. Even though no appeal is filed by the respondents seeking enhancement, I am inclined to grant the said additional amount in this appeal to the respondents, as the provisions relating to compensation in Motor Vehicles Act, being a welfare legislation, the rights of the victims have to be protected by ensuring “just M.A.C.A.No.992/2014 7 compensation” to them. Moreover, I am interfering with the quantum of compensation in respect of some other heads in favour of the appellant. The above finding is fortified by the decision of a Division Bench of Madras High Court in **Royal Sunderam Alliance Insurance Company Ltd v. Sharmila and others** **(2018 ACJ 2720)** , wherein, it was observed as follows: “9. Though the appeal has been preferred by insurance company, by re - appreciating the evidence on record and applying the law, as on date, this court has enhanced the compensation from Rs. 46,60,000 to Rs. 60,60,000,even in the absence of appeal / cross - appeal by the claimants, only in an endeavour to award just and reasonable compensation. This court has power and jurisdiction to do so by invoking O.41, R.33, Civil Procedure Code and S.151, Civil Procedure Code and Art.227 of the Constitution of India, which has also been recognized by the Hon'ble Apex Court in Nagappa v. Gurudayal Singh, 2003 ACJ 12 (SC).” 5. The learned counsel for the insurance company points out that Rs.25,000/- awarded by the Tribunal under the head of funeral expenses is excessive by Rs.10,000/-. However, I am of the view that no interference is warranted in the said amount. This is in view of the fact that the amount awarded by the Tribunal under the head of loss of estate is only Rs.5,000/- and therefore, lesser by 8 M.A.C.A.No.992/2014 Rs.10,000/-. 6. Another contention of the learned counsel for the appellant is regarding the amount of Rs.2,00,000/- granted by the Tribunal under the head of loss of love and affection. In this regard, the learned counsel placed reliance upon the decisions rendered by the Hon’ble Supreme Court in **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [2020 (3) KHC 760]** and **New India Assurance Company v. Somwati [(2020) 9 SCC 644]** . As per the said decision, the parents shall be entitled for loss of filial consortium at the rate of Rs.40,000/- each, in the case of death of the child. It was also held therein that when compensation is awarded under the head of loss of consortium, no further amount is to be awarded for loss of love and affection. While applying principles set out by the Hon’ble Supreme Court in the said judgment, an amount of Rs.2,00,000/- awarded under the head of loss of love and affection has to be substituted with an amount of Rs.80,000/- under the head of filial consortium and it is revised accordingly. M.A.C.A.No.992/2014 9 In the above circumstances, the total amount of compensation in this case is re-fixed as Rs.5,96,000/- (6,96,000 + 20,000 – 1,20,000) (Rupees five lakhs ninety six thousand only) and the insurance company shall deposit the said amount with interest at the rate of 9% per annum along with proportionate cost, within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/13.9.21