M.A.C.A. No.4040/2017 (Appellants: MABLE; ANGEL MARY THOMAS (MINOR); SEBASTIAN THOMAS (MINOR); MARIYAMMA; VARGHESE | Respondents: LENOY SEBASTIAN KIZHAKKE NALUPARAYIL; SREELAL; ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD.)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 19[TH] DAY OF OCTOBER 2023 / 27TH ASWINA, 1945 MACA NO. 4040 OF 2017 ``` ``` OPMV 395/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA ``` ## **`APPELLANTS/PETITIONERS:`** - `1 MABLE, KODIVEEDU, MARARIKULAM SOUTH, PATHIRAPPALLY P.O., ALAPPUZHA.` - `2 ANGEL MARY THOMAS (MINOR KODIVEEDU, MARARIKULAM SOUTH, PATHIRAPPALLY P.O., ALAPPUZHA.` - `3 SEBASTIAN THOMAS MINOR KODIVEEDU, MARARIKULAM SOUTH, PATHIRAPPALLY P.O., ALAPPUZHA.` - `4 MARIYAMMA, KODIVEEDU, MARARIKULAM SOUTH, PATHIRAPPALLY P.O., ALAPPUZHA.` - `5 VARGHESE, KODIVEEDU, MARARIKULAM SOUTH, PATHIRAPPALLY P.O., ALAPPUZHA.` - `BY ADVS.` - `SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.P.J.JOE PAUL` ## **`RESPONDENTS/RESPONDENTS:`** - `1 LENOY SEBASTIAN KIZHAKKE NALUPARAYIL, EAST OF BANK PADI JUNCTION, VAZHAPPALLY PANCHAYATH, CHETHIPUZHA - 686 104.` - `2 SREELAL, SREECHITHRA, PATHIRAPPALLY P.O., ALAPPUZHA - 688 521.` - `3 ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD. SUNDARAM TOWERS, 45 & 46 WHITES ROAD, CHENNAI - 600 002.` ``` BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** M.A.C.A. No.4040/2017 : 2 : ## “C.R.” ## JUDGMENT The appellant is the petitioner in O.P.(MV).No.395/2009 on the file of the Motor Accidents Claims Tribunal, Alappuzha. The said claim petition was submitted by the appellants seeking compensation for the death of one Thomas @ Thankachan due to the injuries sustained in a motor accident that occurred on 10.01.2009. The 1[st] appellant is the wife, the 2[nd] and 3[rd] appellants are the children, and the 4[th] and 5[th] appellants are the parents of the deceased. 2. The accident occurred when the autorickshaw in which the deceased was travelling along with his wife and son through the Alapuzha National Highway, a Scorpio vehicle bearing registration No.KL-4/X 6575 hit the said autorickshaw. Due to the injuries sustained in the accident, he was taken to Medical College Hospital, Alappuzha and thereafter taken to Medical Centre, Ernakulam. While undergoing treatment, he passed away on 18.01.2009. The deceased was aged 40 years at the time of the M.A.C.A. No.4040/2017 : 3 : accident and was working as a Mason. The 1[st] respondent was the driver, the 2[nd] respondent was the owner, and the 3[rd] respondent was the insurer of the Scorpio car. The monthly income claimed was Rs.6,000/-. The claim petition was submitted in such circumstances seeking a compensation of Rs.10,00,000/-. 3. The 1[st] and 2[nd] respondents did not contest the matter. The 3[rd] respondent filed a written statement admitting the coverage of the insurance policy over this Scorpio car. However, they disputed the liability on various grounds. The negligence and quantum of compensation claimed were also disputed. 4. The evidence in this case consists of Ext.A1 to A10 from the appellants' side, and the respondents adduced no evidence. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the driver of the car and being the insurer of the said vehicle, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.9,88,700/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of petition till realiSation. This appeal is submitted in such circumstances M.A.C.A. No.4040/2017 : 4 : ## seeking enhancement of compensation. 5. Heard Sri.P.Joe Paul, the learned counsel appearing for the appellants and Sri.P.Jacob Mathew, the learned Standing Counsel appearing for the 3[rd] respondent/Insurance company. 6. The learned counsel for the appellants submits that the amounts awarded under various heads are grossly inadequate and do not represent the “just compensation”. The main contest is in relation to the monthly income fixed. It was pointed out that, even though a monthly income of Rs.6,000/- was claimed, the Tribunal took only Rs.4,500/- which is on the lower side. After considering the materials placed on record, I am of the view that the monthly income taken by the Tribunal is not proper. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the honourable Supreme Court was pleased to take the monthly income of an ordinary worker without any evidence as Rs.4,500/- in the year 2004. Therefore, as the accident in this case occurred in the year 2009, I am of the view that, Rs.6,000/- claimed by the appellants as the monthly income, is reasonable and the same can be accepted. 7. The next aspect is the addition to be made towards M.A.C.A. No.4040/2017 : 5 : future prospects. The Tribunal did not make any addition towards the same. It is discernible from the records that the deceased was aged 39 years and 8 months at the time of the accident. Therefore, he would come within the category of persons below 40 years, and hence, the addition to be made in the light of National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)], is 40%. While reassessing the compensation with the above revised criteria, the compensation for loss of dependency would come to Rs.11,34,000/- [(6000+40%)x12x15x3/4]. The amount already awarded by the Tribunal under this head is Rs.6,12,000/and thus, the additional amount receivable by the appellants under this head is Rs.5,22,000/-. 8. The learned counsel for the insurance company would point out that the amount awarded under the head of loss of consortium, funeral expenses, loss of love and affection, pain and suffering and loss of expectation of life and prospects of the family (loss of estate) are not proper. The amount awarded by the Tribunal for the funeral expenses was Rs.25,000/- whereas the proper amount is Rs.15,000/- as per the principles laid down in Pranay Sethi (supra). Similarly, for loss of estate, the amount to M.A.C.A. No.4040/2017 : 6 : be awarded is Rs.15,000/- as per Pranay Sethi (supra), whereas the Tribunal awarded an amount of Rs.20,000/-. The excess amounts of Rs.10,000/- and 5,000/-, respectively, under these heads are to be deducted, and it is ordered accordingly. 9. The next aspect relates to compensation for love and affection. The amount awarded under this head is 2,00,000/-. It is seen that, in addition to that, the Tribunal awarded an amount of Rs.1,00,000/- towards loss of consortium. As per the principles laid down in Pranay Sethi (supra) and United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780] [(2021) 11 SCC 780], all the appellants, being the wife, children and parents of the deceased are entitled to compensation under this head at the rate of Rs.40,000/- each and thereby making out a total amount of Rs.2,00,000/-, whereas the amount awarded by the Tribunal was only Rs.1,00,000/-. It was also held in Satinder Kaur (supra) and New India Assurance Company Ltd. v. Somwati & Ors. [(2020) 9 SCC 644] that, when compensation is awarded for loss consortium, no separate amount needs to be awarded under the head of loss of love and affection. Therefore, while revising the amount of loss of consortium as Rs.2,00,000/-, M.A.C.A. No.4040/2017 : 7 : the amount of Rs.2,00,000/- awarded under the head of love and affection is ordered to be deducted. 10. Another head, objected to by the learned counsel for the insurance company, is Rs.25,000/- granted under the head of pain and suffering. The learned counsel for the insurer would place reliance upon the observations made by the honourable supreme court in Satinder Kaur (supra) wherein, after referring to the observations made by the honourable supreme Court in Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802], it was observed that, no amount to be awarded under the head of pain and sufferings. The learned counsel also places reliance upon another decision of the honourable Supreme Court in Oriental Insurance Company Limited v. Kahlon alias Jasmail Singh Kahlon (deceased) Through His Legal Representative Narinder Kahlon Gosakan and Anr [AIR 2020 SC 3913]. The aforesaid contention was stoutly objected to by the learned counsel for the appellant by placing reliance upon the decision rendered by this Court in M.A.C.A Nos. 1775 and 2081 of 2013, and KSRTC v. John [1990 (2) KLT 695], United India Insurance Co.Ltd. v. Beena Pathrose & Ors. [2017 (2) KHC 577]. M.A.C.A. No.4040/2017 : 8 : 11. The learned counsel for the appellants in this regard would submit that the observations made by the honourable Supreme Court in Satinder Kaur (supra) cannot be relied upon to hold that no amount can be awarded under the head of pain and suffering. It was pointed out that the observations in Satinder Kaur (supra) were based on certain observations made by the honourable Supreme Court in Sarla Verma 's case, pertaining to the pain and sufferings or hardship caused to the legal heirs of the deceased and not for the pain and sufferings of the deceased. To be precise, the only observation with reference to the same in Sarla Verma 's case is in paragraph 19 of the said judgment, which is as follows: “…..but no amount is to be awarded under the head of pain and suffering or hardship caused to the legal heirs of the deceased'” Besides the same, the learned counsel also placed reliance upon the statutory stipulations contained in Sections 2 and 9 of the Kerala Torts (Miscellaneous Provisions) Act, 1976. 12. After carefully going through the rival contentions raised by the parties and perusing the decisions referred to by M.A.C.A. No.4040/2017 : 9 : them, I find some force in the contention put forward by the learned counsel for the appellants. Of course, it is true that, in Pranay Sethi (supra) while referring to the conventional heads, the compensation payable under the head of pain and suffering in respect of the death of a person was not considered. However, on carefully going through the observations made in Pranay Sethi 's case, it can be seen that, there is no absolute prohibition with respect to the compensation to be awarded under the head of pain and suffering. Even otherwise, the observations made by the honourable Supreme Court in Pranay Sethi 's case and the method of computation contemplated therein were for standardising the method of computation concerning claims arising out of motor accidents. When there are specific statutory provisions governing the field, which are not mentioned in Pranay Sethi 's case, nothing will preclude the courts from applying the aforesaid statutory provisions and granting compensation to any other heads under which the compensation is to be paid. In other words, the principles laid down in Pranay Sethi 's case are in the nature of general guidelines, and in cases where evidence was adduced or the situations therein were governed by statutory M.A.C.A. No.4040/2017 : 10 : provisions, a different approach than contemplated in Pranay Sethi' s case can be adopted. In New India Assurance Co.Ltd. v. Urmila Shukla and Others [2021 ACJ 2081], a similar issue came up for consideration before the honourable Supreme Court. The question raised in that case was related to the future prospects to be made for a person above 50 years of age. As per the principles laid down in Pranay Sethi 's case, the addition to be made was 10%, whereas the UP Motor Vehicle Rules 1998 provided for the addition of 20% of the monthly income towards future prospects. After referring to Pranay Sethi's decision, it was observed in paragraph 11 as follows: “If an indicia is made available in the form of a statutory instrument which affords a favourable treatment, the decision in Pranay Sethi cannot be taken to have limited the operation of such statutory provision specially when the validity of the Rules was not put under any challenge. The prescription of 15 per cent in cases where the deceased was in the age bracket of 50-60 years as stated in Pranay Sethi cannot be taken as maxima. In the absence of any governing principle available in the statutory regime, it was only in the form of an indication. If a statutory instrument has devised a formula which affords better or greater benefit, such statutory instruments must be allowed to operate unless the statutory instrument is otherwise found to be invalid.” 13. The learned counsel for the insurance company relied on the decision of the Honourable Supreme Court in Kahlon (supra), wherein a similar issue was considered. After referring to M.A.C.A. No.4040/2017 : 11 : various judicial precedents, the honourable Supreme Court concluded that the compensation for pain and suffering, being personal injuries, may not have survived after the death of the injured to the legal heirs of the deceased, but a claim that forms part of the estate of the deceased would survive. However, it is to be noted that, the legal position that the claim for personal injuries suffered by the deceased not related to his death, would not survive, is based on section 306 of the Indian Succession Act, which reads as follows: “ 306. Demands and rights of action of or against deceased survive to and against executor or administrator – All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors of administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code (45 of 1860) or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.” 14. However, as far as the State of Kerala is concerned, the application of Section 306 has certain limitations. This is by virtue of the statutory stipulations contained in the provisions of the Kerala Torts (Miscellaneous Provisions) Act, 1976, which was enacted in the State with effect from 17.02.1976. The relevant provisions applicable are Sections 2 and 9 of the Act, which read M.A.C.A. No.4040/2017 : 12 : ## as follows: 2. Effect of death on certain causes of action . - On the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate: Provided that this section shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery. 9. Repea l. - (1) Travancore Law Reforms (Miscellaneous Provisions Act, 1124 (Act XII of 1124), is hereby repealed. (2) The Legal Representatives' Suits Act, 1855 (Central Act 12 of 1855), shall cease to apply to that part of the State of Kerala where it was in force immediately before the commencement of this Act. (3)Section 306 of the Indian Succession Act, 1925 (Central Act 39 of 1925), so far as it relates to right of action in torts, shall cease to apply to the State of Kerala” . 15. Section 2 of the Act specifically provides that all causes of action subsisting against or vested in the deceased, as the case may be, would survive for the benefit of his estate. Similarly, Section 9(3), the repealing provision, specifically provides that Section 306 of the Indian Succession Act, 1925, so far as relates to the right of action in torts, shall cease to apply to the State of Kerala. Therefore, in the light of the statutory stipulations prevailing in the State of Kerala, a different view has to be taken as far as the right of the legal heirs to claim the compensation under the head of pain and sufferings of the deceased is M.A.C.A. No.4040/2017 : 13 : concerned. This said provision specifically contemplates that the cause of action would survive if it is an action on torts. 16. 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 if 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 M.A.C.A. No.4040/2017 : 14 : 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. 17. The said question was specifically considered by another single bench of this Court in M.A.C.A. No.1775/2013. After elaborately considering the aforesaid question by referring to a large number of decisions it was held by this Court in the manner as follows: 6. The Hon'ble Supreme Court has held in the decision in United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur & Ors . reported in [2020 (3) KHC 760] that in cases of death the compensation is to be granted for loss of estate, funeral expenses and for loss of dependency and under no other head. It has been specifically held that no amount can be granted as compensation under the head pain and sufferings to the legal representatives of the deceased. The counsel for the claimants submitted the judgment in Satinder Kaur (supra) does not specifically deal with the question whether the pain and sufferings that the deceased underwent between the accident and his death should be compensated. It is submitted that as per the provisions of the Kerala Torts (Miscellaneous Provisions) Act, all rights available when the deceased was alive, would continue to be available to the legal representatives. Reference is made to Section 1 of the Fatal Accidents Act. The counsel on either side referred to the decisions reported in R.Ayyavu & Anr. v. Gopinathan Nair & Anr. [ILR 1991(2) Kerala 201], Jyni & Ors. v. Raphel P.T. & Ors. [2016(2) KHC 870], M.A.C.A. No.4040/2017 : 15 : KSRTC v. John [1990(2) KLT 695], United India Insurance Co.Ltd v. Beena Pathrose & Ors. [2017(2) KHC 577], Jaya & Ors. v. Shaji & Ors. [2014(1) KLT 31], Bhagyalakshmi v. Shriram General Insurance Co.Ltd & Ors. [2020 ACJ 2431], National Insurance Co. Ltd v. Sivabakkiyam (since deceased) & Ors. [2020 ACJ 531]. 7. In KSRTC (supra), another Division Bench of this Court held that the legal representatives can claim compensation for the pain and agony even where the death was instantaneous. In Ayyavu (supra), a Division Bench of this Court had held that pain and suffering of deceased, loss of expectation of life and present value of future contribution which the deceased could have made are heads of claims available to the legal representatives. The Court had found that the death was not instantaneous and that he died on the next day after the accident. In the above circumstances, it was held that a fair compensation is payable for the pain and suffering incurred by the child. In Jaya (supra), a Division Bench of this Court relied on Section 2 of the Torts (Miscellaneous Provisions) Act, 1976 (Kerala) and held that legal heirs are entitled to claim compensation for the personal injuries sustained by the deceased. In Jyny (supra), a Division Bench of this Court held that in cases of instantaneous death as well as in cases where the deceased was unconscious between the time of accident and time of his death, some notional amount is payable under the head pain and suffering and that a slightly higher amount can be awarded if the death is not instantaneous. The same view was expressed in Bhagyalakshmi (supra), by a Single Bench of this Court. In Beena Pathrose (supra), where the deceased succumbed to the injuries on the way to the hospital, a Division Bench of this Court awarded a nominal amount as compensation stating that the deceased would have suffered pain. In Sivabakkiam (supra), a learned Single Judge of the Madras High Court held that compensation under the head pain and suffering will not be available to the legal representatives by invoking the maxim actio personalis moritum cum persona. 8. 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 M.A.C.A. No.4040/2017 : 16 : 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. 18. 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 M.A.C.A. No.4040/2017 : 17 : death. In such circumstances, the challenge raised by the insurance company against the said head is hereby rejected. 19. Thus after considering all the relevant aspects, the additional compensation receivable by the appellant in this case is determined as Rs.4,07,000/-. [ (522000 + 100000) – (10000 + 5000 + 200000) ] In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 17.01.2017 in OP(MV) No.395/2009 passed by the Motor Accident Claims Tribunal, Alappuzha, is hereby modified by granting an additional compensation of Rs.4,07,000/- (Rupees four lakhs seven thousand only) and the 3[rd] respondent is directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition. However, it is clarified that as the appeal is filed with a petition to condone the delay of 150 days, the insurance company shall be entitled to exclude the said period while computing the interest on the additional amount. Sd/ZIYAD RAHMAN A.A. JUDGE dg/rpk/ncd