Kuttiyappu Pakarath House and Others v. Director, Immanuel Aviation & Cargo Service Pvt. Ltd. and The National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY ,THE 08TH DAY OF JANUARY 2019 / 18TH POUSHA, 1940** **M.A.C.A.No. 2061 of 2016** **AGAINST THE AWARD IN OPMV No.1264/2012 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA DATED26-02-2016** ## **APPELLANTS/PETITIONERS:** **1 KUTTIYAPPU PAKARATH HOUSE, BHARATH NAGAR, OVERY, GUDALLUR, TAMIL NADU, NOW RESIDING AT C/O.VELAYUDHEN, PAKARATH HOUSE, MOONJELY, CHALAKKUDY, MUKUNDAPURAM TALUK.** **2 THANKAMANI W/O.KUTTIYAPPU,-DO- -DO-.** **3 SREEJA D/O.KUTTIYAPPU,-DO- -DO-.** **4 SATHEESH S/O.KUTTIYAPPU,-DO- -DO-.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS 1 AND 3:** **1 THE DIRECTOR, IMMANUEL AVIATION & CARGO SERVICE PVT.LTD., BANK JUNCTION, ALUVA – 683 101.** - **2 THE NATIONAL INSURANCE COMPANY LTD ALUVA, ERNAKULAM DISTRICT – 683 101.** **BY ADV. SMT.DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 2061 of 2016** **2** ## **JUDGMENT** This appeal is preferred against the award in OP(MV)No.1264/2011 of the Motor Accidents Claims Tribunal, Irinjalakuda by the dependents of the deceased Dinesh. The deceased was traveling as a pillion rider in a motor cycle who met with an accident and sustained serious injuries, the Motor Accidents Claims Tribunal awarded Rs.9,72,000/- (Rupees Nine Lakhs Seventy Two Thousand only) as compensation. Hence, the legal representatives of the deceased preferred this appeal. 2. It would relevant and useful to mention the facts leading to this accident. The claimants case in the lower court was that on 28-09-2011 at 9.30pm, he was traveling as pillion rider in a motor cycle KL 17B 2142 through Nedumbassery airport road, when he reached in front of preyas Petrol Bunk, another car KL 41C 5780 driven in a rash and negligent manner hit against the motor cycle. The accident was due to the rash and negligent driving of the car by its driver. Immediately the injured was removed to Little Flower Hospital Angamali, where he succumbed to **M.A.C.A.No. 2061 of 2016** **3** the injuries on the next day. The driver and owner were set ex-parte. The insurer admitted the insurance of the vehicle. 3. The first appellant Kuttiappu was father aged 49 years, Thankamani mother aged 43 years, Sreeja sister aged 22 years and Satheesh brother aged 20 years are the claimants. Appellants contended that the deceased was 18 years at the time of accident and he was working as a salesman in preyas Petrol Bunk, Nedumassery and he was getting an income of Rs.10,000/- per month. The owner of the petrol bunk was examined as PW1 and their documents were marked as Ext.A1 to Ext.A14. There was no dispute with regard to the cause of accident. Ext.A14 the postmortem certificate shows that death was due to the injuries sustained to the head. 4. In fatal accident case, the measure of damage is towards the pecuniary losses, which is to be suffered by the dependents as a result of the death. But the assessment of damages to the dependents is beset with difficulties because from the nature of things, it has to take into account many imponderables. The life expectancy of the deceased and the dependents are the major factors. **M.A.C.A.No. 2061 of 2016** **4** Secondly the amount that the deceased would have earned during the remaining period of his life, the amount that he would have contributed to the dependents during that period is also relevant. The chances that the deceased may not have lived or the dependents may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better job and earned more income also have to be considered by the Tribunal. ## 5. Apex court in _**National Insurance Company V.**_ ## _**Pranay Sethi [2017 (4) KLT 662 (SC)]**_ held as follows: _61. In view of the aforesaid analysis, we proceed to record our conclusions:-_ _(i) The two-Judge Bench in Santhosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench._ _(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent_ **M.A.C.A.No. 2061 of 2016** **5** _job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax._ _(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component._ _(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced herein before._ _(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment._ _(vii) The age of the deceased should be the basis for applying the multiplier._ _(viii) 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 aforesaid amounts should be enhanced at the rate of 10% in every three years._ 6. The Tribunal declined to accept the evidence of **M.A.C.A.No. 2061 of 2016** **6** PW1 hence the income was taken as Rs.5,000/- which is very low. A perusal of Ext.A11 shows that he was getting 7,000/-. In the absence of any contra evidence the income Rs.7,000/- is just and reasonable. Since the deceased was unmarried 50% of the amount has to be deducted and the legal representatives are entitled to get the remaining 50%. Hence 40% is added towards future prospects. The total income is [7,000+2,800] Rs.9,800/-. The dependency compensation is Rs.9,800x12x18x1/2=Rs.10,58,400/-. The learned Tribunal awarded Rs.8,10,000/- towards loss of dependency. The balance amount is Rs.2,48,400/-. 7. In _**Magma General Insurance Co. Ltd. v. Nanuram alias Chuhru Ram and others [ 2018 ACJ 2782]**_ it was held as follows: _The M.A.C.T as well as the High Court have not awarded any compensation with respect to loss of consortium and loss to estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognised by the Constitution Bench in Pranay Sethi, 2017 ACJ 2700 (SC). The Motor Vehicles Act is a beneficial and welfare legislation. The court is duty bound and entitled to award 'just compensation', irrespective of whether any plea in that behalf was raised by the_ **M.A.C.A.No. 2061 of 2016** **7** ## _claimant._ _In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs.15,000/- towards loss to estate to respondent Nos. 1 and 2._ _A Constitution Bench of this court in Pranay Sethi, 2017 ACJ 2700 (SC), dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium._ _In legal parlance, 'consortium' is a compendious term which encompasses 'spousal consortium', 'parental consortium' and '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. With respect to a spouse, it would include sexual relations with the deceased spouse [Rajesh V. Rjbir Singh, 2013 ACJ 1403 (SC)]._ _Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of 'company, society, cooperation, affection, and aid of the other in every conjugal relation'. [Black's Law Dictionary: 5[th] Edn., 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 accidental death of a_ **M.A.C.A.No. 2061 of 2016** **8** _child. An accident leading to the death of a child causes 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 lifetime. Children are valued for their love, affection, companionship and their role in the family unit._ _Consortium is a special prism reflecting changing norms about the status and worth of actual relationship. Modern jurisdictions the world over have recognised that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions, thererfore, permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation towards loss of love, affection, care and companionship of the deceased child._ _The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where the parents have 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._ _Parental consortium is awarded to the children who lose their parents in motor vehicles accidents under the Act._ _A few High Courts have awarded compensation on this count: Rajasthan High Court in Jagmala Ram v. Sohi Ram, 2017 (4) RLW 3368 (raj) and Uttarakhand High Court in Rita Ranan V. Pradeep Kumar, 2014 (3) UC 1687 and Karnataka High Court in Lakshman V. susheela Chand Choudhary, 1996 ACJ 1265 (Karnataka). However,_ **M.A.C.A.No. 2061 of 2016** **9** _there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium._ _The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under 'loss of consortium' as laid down in Pranay Sethi, 2017 ACJ 2700 (SC)._ 8. The appellants are entitled to get Rs.50,000/each for love and affection and Rs.40,000/- each for loss of consortium in view of _**Magma's Case (supra)**_ . Whereas Parental Consortium and filial consortium, that means they are entitled to get Rs.1,60,000/- towards consortium. They are entitled to get Rs.2,00,000/- towards love and affection. Rs.1,00,000/- already awarded the balance is Rs.1,00,000/-. The Tribunal awarded Rs.25,000/- towards funeral expense, and Rs.10,000/- towards loss of estate, therefore Rs.10,000/- has to be deducted from funeral expense and Rs.5,000/- has to be given towards loss of estate. Ext. A8 is the additional medical bill for Rs.17144/-. Therefore, the appellants are entitled to get an enhanced compensation of [2,48,400+1,00,000+1,60,000+17,144-5,000]Rs.5,20,544/(Five Lakhs Twenty Thousand Five Hundred and Forty Four **M.A.C.A.No. 2061 of 2016** **10** only) with 9% interest and proportionate cost. The insurer is directed to satisfy the award amount within 30 days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. This appeal is disposed of, as above. Sd/- **P.D.RAJAN,** nak **JUDGE**