M.A.C.A. No.3129 of 2015 & Cross Objection No.20 of 2016 vs Royal Sundaram Alliance Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 18TH DAY OF SEPTEMBER 2019 / 27TH BHADRA, 1941** ## **MACA.No.3129 OF 2015** **AGAINST THE AWARD IN OP(MV)No.174/2013 DATED 20-07-2015 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANT/3RD RESPONDENT:** **ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, NOW REPRESENTED BY THEIR ZONAL HEAD, SUBRAMANIAM BUILIDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI - 600 002. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** - **1 MOLLY @ MOLLYKUTTY W/O. LATE SEBASTIAN, ELAMBASSERIL HOUSE, MEENKUNNAM, ARAKKUZHA VILLAGE, PIN – 686 320.** - **2 SIMIL SEBASTIAN** **S/O. LATE SEBASTIAN, ELAMBASSERIL HOUSE, MEENKUNNAM, ARAKKUZHA VILLAGE, PIN – 686 320.** - **3 SUMITH SEBASTIAN, S/O. LATE SEBASTIAN, ELAMBASSERIL HOUSE, MEENKUNNAM, ARAKKUZHA VILLAGE, PIN – 686 320.** **R1 TO R3 TO BY ADVS. SRI.ABE RAJAN SRI.T.K.KOSHY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.09.2019, ALONG WITH CO.20/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A No.3129 of 2015 & Cross Objection No.20 of 2016 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 18TH DAY OF SEPTEMBER 2019 / 27TH BHADRA, 1941** ## **CO.No.20 OF 2016 IN MACA. 3129/2015** **AGAINST THE AWARD IN OP(MV)No.174/2013 DATED 20-07-2015 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **CROSS OBJECTORS/RESPONDENTS 1 TO 3** - **1 MOLLY @ MOLLYKUTTY, W/O.LATE SEBASTIAN, ELAMBASSERIL HOUSE,MEENKUNNAM, ARAKKUZHA VILLAGE.** - **2 SIMIL SEBASTIAN S/O.LATE SEBASTIAN, ELAMBASSERIL HOUSE,MEENKUNNAM, ARAKKUZHA VILLAGE.** - **3 SUMITH SEBASTIAN S/O.LATE SEBASTIAN, ELAMBASSERIL HOUSE, MEENKUNNAM,ARAKKUZHA VILLAGE. BY ADV. SRI.T.K.KOSHY** ## **RESPONDENT/APPELLANT:** **ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD. CHENNAI, NOW REPRESENTED BY THEIR ZONAL HEAD,SUBRAMANIAM BUILDING, CLUB HOUSE ROAD,ANNASALAI, CHENNAI - 600 002.** **R1 BY ADV. SRI.MATHEW JACOB SR.** **THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 18.09.2019, ALONG WITH MACA.3129/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A No.3129 of 2015 & Cross Objection No.20 of 2016 3** ## **M.A.C.A No.3129 of 2015 & Cross Objection No.20 of 2016** ## **J U D G M E N T** The insurer in a proceedings for compensation before the Motor Accidents Claims Tribunal has come up in this appeal challenging the quantum of compensation fixed by the Tribunal to the claimants in the proceedings. The cross objection is by the claimants challenging the inadequacy of the quantum of compensation fixed for them by the Tribunal. 2. One Sebastian, aged 59 years died in a motor accident took place on 04.02.2013. His wife and two children aged 27 and 24 respectively were the claimants in the proceedings. A sum of Rs.15,00,000/- was the claim made in the proceedings. As against the said claim, the Tribunal has granted to the claimants a sum of Rs.14,93,000/- by way of compensation. As noted, both the insurer as also the claimants are aggrieved by the quantum of compensation fixed by the Tribunal. Hence this appeal and cross objection. ## **M.A.C.A No.3129 of 2015 & Cross Objection No.20 of 2016 4** 3. Heard the learned Senior Counsel for the appellant as also the learned counsel for the claimants. 4. It has come out that the deceased was a pensioner working as the agent of M/s.SBI Life insurance. He was earning a sum of Rs.15,350/- by way of monthly pension. In addition, he was earning some amount by way of commission from his avocation as the agent of M/s.SBI Life Insurance. In order to prove the income earned by the deceased as the agent of M/s.SBI Life Insurance, the claimants relied on Ext.A8 pass book of the bank account wherein the commission received by the deceased was being credited. The Tribunal noticed that the deceased was earning on an average a sum of Rs.4,500/- by way of commission from his avocation as the insurance agent. In the circumstances, the Tribunal has computed compensation for loss of dependency payable to the claimants reckoning the monthly income of the deceased at Rs.18,000/-. 5. The learned Senior Counsel for the appellant contended that in so far as the wife of the deceased was receiving almost half of the pension received by the deceased by way of family pension on the death of the deceased, the entire amount of ## **M.A.C.A No.3129 of 2015 & Cross Objection No.20 of 2016 5** pension earned by the deceased ought not have been taken into account by the Tribunal for the purpose of determining the monthly income of the deceased for computing compensation for loss of dependency. It was also contended by the learned Senior Counsel that compensation granted by the Tribunal under the heads funeral expenses and loss of consortium to the wife of the deceased are excessive and against the ratio of the decision of the Apex Court in **National Insurance Company Ltd V. Pranay** **Sethi** [2017(4) KLT 662 (SC)]. Per contra, the learned counsel for the claimants contended that the family pension earned by the wife of the deceased is not liable to be deducted at all while determining the income of the deceased to be reckoned for computing the compensation for loss of dependency. According to the learned counsel, in so far as the family pension was an entitlement of the wife of the deceased even if the death was on account of other reasons, the Tribunal cannot be found fault with for having not taken into account the family pension received by the wife of the deceased while determining the loss caused to the family on account of the death of the deceased. It was also pointed out by the learned counsel that Ext.A8 pass book would ## **M.A.C.A No.3129 of 2015 & Cross Objection No.20 of 2016 6** reveal that the deceased was receiving on an average approximately Rs.6,750/- per month by way of commission from his avocation as the insurance agent and the view taken by the Tribunal that he was earning only approximately Rs.4,500/- per month from the said avocation is incorrect. It was also contended by the learned counsel that the compensation granted by the Tribunal to the children of the deceased towards loss of love and affection is too meager and liable to be revised. 6. I have considered the contentions raised by the learned counsel for the parties on either side. 7. It is seen that on exactly identical facts, a Division Bench of this court in M.A.C.A.No.304 of 2007 has held that family pension being a benefit earned by the widow irrespective of the cause of the death of the pensioner, it is not something to be taken into account while determining the loss caused to the family on account of the deceased. Paragraph 12 of the judgment in the said case reads thus: “We notice that the judgment in _Helen C.Rebello's case (supra), and Lal Dei and others v. Himachal Road Transport {2007 (8) SCC 319}_ are rendered by Benches consisting two learned ## **M.A.C.A No.3129 of 2015 & Cross Objection No.20 of 2016 7** Judges. The decision in _Bhakra Beas Management Board v. Smt.Kanta Aggarwal and others {AIR 2008 SC 3118}_ rendered by a Bench of two Judges does not purport to overrule the judgment in _Helen C. Rebello (Mrs) and others vs. Maharashtra State Road Transport Corporation and another {1999 (1) SCC 90}_ . There appears to be some reasoning also in regard to the component of family pension which appears to advance the case of the appellant. Family pension is not something which one gets only in the case of a death by accident. Pension is no bounty. It is essentially earned by the employee. Whether the person died as a result of accident or otherwise the widow would be entitled to family pension. We also find that there is a direct decision in _Lal Dei and others v. Himachal Road Transport {2007 (8) SCC 319}_ which specifically deals with the issue of deductibility of family pension. We notice that the said decision is not referred to by the Apex Court in _Bhakra Beas Management Board v. Smt.Kanta Aggarwal and others {AIR 2008 SC 3118}_ . The argument of the learned counsel for the appellants is that the decision in _Bhakra Beas Management Board v. Smt.Kanta Aggarwal and others {AIR 2008 SC 3118}_ ## **M.A.C.A No.3129 of 2015 & Cross Objection No.20 of 2016 8** cannot be treated an authority for the proposition that when death arises on account of an accident and family pension becomes payable the family pension is to be deducted from the total pension for arriving at the dependency compensation. We see merit in the contention. In such circumstances we accept the contention of the learned counsel for the appellants that when family pension becomes payable in a case where death follows injuries suffered in a motor accident, it is not liable to be deducted in the determination of payment to the claimants”. In the light of the the said decision of the Division Bench, the contention raised by the insurer that the family pension earned by the wife of the deceased should have been deducted from the pension received by the deceased which was taken into account for determining the loss caused to the family on account of the death of the deceased, is only to be rejected and I do so. 8. It is trite that a conventional amount has to be paid towards compensation for pain and suffering in all cases of death as well. In so far as the accident in the instant case was one that took place in the year 2013, according to me, the ## **M.A.C.A No.3129 of 2015 & Cross Objection No.20 of 2016 9** claimants should have granted at least a sum of Rs.15,000/- by way of compensation towards pain and suffering. As the Tribunal has granted only a sum of Rs.10,000/- by way of compensation under that head, the claimants are entitled to a sum of Rs.5,000/more towards compensation for pain and suffering. 9. In the light of the decision of the Apex Court in **Pranay Sethi** , the claimants are entitled to only a sum Rs.15,000/- towards funeral expenses, Rs.15,000/- towards loss of estate and Rs.40,000/- towards compensation for loss of consortium to the wife of the deceased. It is seen that the Tribunal has granted a total sum of Rs.1,35,000/- under those three heads. Rs.65,000/- granted by the Tribunal under those three heads is therefore excessive. 10. Compensation for loss of love and affection is normally to be granted to the tender aged children of the deceased and not to be granted to the grown up children settled in life. The Tribunal has granted a sum of Rs.50,000/- by way of compensation for loss of love and affection to the children of the deceased who are aged 27 and 24 respectively. I do not think that in the absence of any evidence as to the circumstances in which ## **M.A.C.A No.3129 of 2015 & Cross Objection No.20 of 2016 10** the deceased and his children were placed in life, the children of the deceased would justified in claiming further compensation on that head. 11. Coming to the quantum of compensation payable to the claimants for loss of dependency, it is seen that the learned counsel for the claimants is right in contending that going by the entries in Ext.A8 pass book, the deceased was earning approximately Rs.6,750/- by way of commission from his avocation as insurance agent. The income the deceased would have earned from the aforesaid avocation, may or may not be same always. As such, the average of the commission received by the deceased as reflected in Ext.A8 pas book cannot be reckoned as the income of the deceased for the purpose of computing compensation for loss of dependency. It is conceded that the Tribunal has not taken note of the future prospects while computing compensation for loss of dependency. Nevertheless, having regard to the totality of the facts and circumstances of the case, I am of the view the Tribunal could have reckoned Rs.20,000/- as the monthly income of the deceased for the aforesaid purpose. There is no dispute in this case as regards the ## **M.A.C.A No.3129 of 2015 & Cross Objection No.20 of 2016 11** additions and subtractions to be made from the monthly income reckoned as also as regards the multiplier to be applied while computing compensation for loss of dependency. If compensation is worked out reckoning monthly income of the deceased at Rs.20,000/-, the same would come to Rs.15,84,000/(Rs.20,000x12x110/100x2/3x9). The Tribunal has granted only a sum of Rs.12,96,000/- under that head. The claimants are therefore entitled to an additional compensation of Rs.2,88,000/under that head. As it is found that the claimants were granted a sum of Rs.60,000/- in excess of their eligibility under the remaining heads discussed above, the net additional compensation payable to the claimants would come to Rs.2,28,000/-. In the result, the appeal and cross objection are disposed of granting to the claimants a sum of Rs.2,28,000/- by way of additional compensation. Needless to say, the claimants will be entitled to interest for the additional compensation at the rate of 7.5%. It is clarified that all other directions contained in the impugned award will stand. The parties will be at liberty to move the Tribunal for directions as regards deposit of the **M.A.C.A No.3129 of 2015 &** **Cross Objection No.20 of 2016 12** additional amount of compensation granted and for the disbursal thereof. All interlocutory applications in the appeal are closed. **Sd/P.B.SURESH KUMAR, JUDGE** DK