Mary and Others v. The Branch Manager and An Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 19[TH] DAY OF MAY 2022 / 29TH VAISAKHA, 1944** **MACA NO. 2136 OF 2010** **AGAINST THE AWARD DATED 09.10.2009 IN OPMV 557/2005 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANTS/PETITIONERS:** - **1 MARY AND OTHERS, W/O THANKACHAN @ DEVASIYA, AGED 43 YEARS, KARINKANNIYIL HOUSE, EDAKKAL, AMBALAVAYAL PO, NENMENI VILLAGE, S.BATHERY TALUK, WAYANAD DISTRICT.** - **2 RENIL U.T, S/O.LATE THANKACHAN @ DEVASIYA AGED 23 YEARS,KARINKANNIYIL HOUSE, EDAKKAL, AMBALAVAYAL PO, NENMENI VILLAGE, S.BATHERY TALUK, WAYANAD DISTRICT.** - **3 RINCY, D/O.LATE THANKACHAN @ DEVASIYA AGED 20 YEARS,KARINKANNIYIL HOUSE, EDAKKAL, AMBALAVAYAL PO, NENMENI VILLAGE, S.BATHERY TALUK, WAYANAD DISTRICT.** - **4 EALIKUTTY, W/O.LATE DEVASIYA AGED 70 YEARS,KARINKANNIYIL HOUSE, EDAKKAL, AMBALAVAYAL PO, NENMENI VILLAGE, S.BATHERY TALUK, WAYANAD DISTRICT, (M/O.OF THE DECEASED THANKACHAN @ DEVASIYA). BY ADV SMT.CELINE JOSEPH** ## **RESPONDENTS/RESPONDENTS:** - **1 THE BRANCH MANAGER AND ANOTHER INSURANCE COMPANY LTD.,** - **S.BATHERY,WAYANAD DISTRICT 693 592.** - **2 THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD., 110, CHANDHI ROAD, ARNI, THIRUVANNAMALAI DISTRICT, THAMILNADU. BY ADV SRI.T.J.LAKSHMANAN IYER** **ADV.LAL K.JOSEPH-FOR R2** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 19.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 2136 of 2010 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.557/2005 on the file of Motor Accidents Claims Tribunal, Kalpetta (In short ‘Tribunal’). The claim petition was filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) out of the death of Thankachan @ Devasiya (herein after be referred as deceased), husband of the 1[st] appellant, father of the appellants 2 and 3 and son of the 4[th] appellant. Total compensation of Rs.10,00,000/- has been claimed. It is alleged that the accident occurred on 30.06.2005, while the deceased was travelling as the representative of the owner of the goods in a Mini Lorry bearing Registration No.KL-12A/5178 driven by the 1[st] respondent and when it reached at Meenagadi Town in front of Thoufeque Hotel, the driver lost control over the lorry and hit on another lorry bearing Registration No.TN/25W/7989 which was parked in front of the Thoufeque Hotel, thereby deceased sustained injuries. He was immidiately taken to Leo Hospital, Kalpetta, there he succumbed to the injuries. The 1[st] respondent is M.A.C.A No. 2136 of 2010 **3** the driver of the Mini Lorry, 2[nd] respondent is the owner and 3[rd] respondent is the insurer. 4[th] , 5[th] and 6[th] respondents are driver, owner and insurer of the lorry bearing Registration No.TN/25W/7989. 2. Before the Tribunal, respondents 1, 2, 4 and 5 remained exparte. 3[rd ] respondent filed written statement admitting the policy coverage, but contended that liability is limited as per policy coverage. It is also contended that deceased was traveller in Mini Lorry and not covered by policy. 6[th ] respondent filed written statement originally denying the insurance of policy with respect to the lorry, subsequently filed additional written statement admitting the policy coverage, but liability is denied. 3. PWs1 to 3 were examined. Exts.A1 to A9 and B1 marked from the side of the appellants/claimants. On evaluating the evidence as well as facts and circumstances, the Tribunal found that the accident happened due to the negligence of drivers of both vehicles and accordingly owners of both vehicles are held liable for the accident and both insurers are directed to indemnify the respective owners equally. The Tribunal awarded a total M.A.C.A No. 2136 of 2010 **4** compensation of Rs.4,39,500/-. 4. Dissatisfied with the quantum of compensation awarded by the Tribunal, appellants/claimants (hereinafter be referred as claimants) are before this Court in appeal for various grounds stated in the memorandum of appeal. Insurers of the vehicles alone were arraigned as respondents in the appeal. First respondent herein is the 3[rd] respondent and 2[nd] respondent is the 6[th] respondent before the Tribunal. Adv. T.J.Lakshmana Iyer appeared on behalf of 1[st] respondent insurer. Adv. Lal K. Joseph appeared on behalf of the 2[nd] respondent. 5. Heard the learned counsel for the claimants and the learned counsel for the 1[st] respondent and 2[nd] respondent insurers. Lower court records were called for and perused. 6. Accident, death as well as liability of the respondents are not in dispute. The only challenge is with regard to the quantum of compensation awarded by the Tribunal. According to the learned counsel for the claimants, deceased was Supervisor in a Wood industry and he claimed monthly income of Rs.6,500/-. His employer was examined as PW3 to prove the income. But Tribunal M.A.C.A No. 2136 of 2010 **5** taken income of the deceased as Rs.3,000/- per month which according to the learned counsel is very low. It is contended that no addition was made towards future prospects also. It is further contended that very meager amount was awarded under conventional heads. Hence he seeks for enhancement of compensation on all heads. 7. The learned counsel for the respondents on the other hand contended that just and reasonable compensation has already been awarded by the Tribunal under various heads and no interference is called for in this appeal. 8. First aspect is with respect to the income of the deceased. The income claimed is Rs.6,500/- per month. PW3, who is the Managing Partner of the Ponnangaras Wood Industries, examined from the side of the appellants. He deposed that deceased was Supervisor and he was earning Rs.300/- per day. Rs.7,500/- used to give as salary. He used to give wages for overtime work also. Ext.A6 is the salary certificate issued by him. He also stated that on the day of accident, deceased was accompanying goods in mini lorry. Deceased was working as M.A.C.A No. 2136 of 2010 **6** Supervisor in Ponnangaras Wood Industries for the last 20 years. During cross examination, it has come out that PW3 is not keeping any records to prove the payment of salary to the employees. There is no records to show the name of the employees. In the claim petition Rs.6,500/- has been claimed as income. Hence evidence and pleadings are not consistent and hence is not fully acceptable. The accident was in the year 2005. Hence, taking into account the facts and circumstances and evidence, income of the deceased is taken as **Rs.6,000/-** per month. 9. In Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)] the Apex Court laid down the guidelines for determination of quantum of compensation in case of death in motor accident. It has been held that compensation awarded should be just compensation and that the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. The assessment of compensation though involve certain hypothetical considerations, should nevertheless be objective and justice and justness emanate from equality in treatment, consistency and M.A.C.A No. 2136 of 2010 **7** thoroughness in adjudication and fairness and uniformity in decision making process and the decisions. Though it is not possible to have a mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. 10. In National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)] a Constitution Bench of the Apex Court dealt with the concept of 'just compensation' and held that the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of “just compensation” has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. It is also emphasized that the compensation should not be a windfall nor be a pittance. 11. In Pranay Sethi's case, the Constitution Bench laid M.A.C.A No. 2136 of 2010 **8** down that in case of self employed persons or persons with fixed salary there should be addition of 10% in between the age group of 50 – 60 years and an addition of 25% between the age group of 40 - 50 and 40% where deceased was below 40 years and it is also held that the established income also provided as the income minus tax component in the case of salaried persons. 12. In the present case, deceased was 44 years of age. Hence claimants are entitled for 25% enhancement of income towards future prospects. Then monthly income of the deceased would be Rs.7,500/- (6,000+1,500(25% of 6,000)). 13. On the question of deduction towards personal expenses in Sarla Verma's case, the Apex Court held that personal and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependants. When deceased is a bachelor and claimants are parents, normally 50% is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. Where number of dependent family members is between 2 and 3, the deduction towards dependant family members is 1/3 and where M.A.C.A No. 2136 of 2010 **9** number of dependant family members is between 4 and 6 the deduction would be ¼ and it would be 1/5 when the number of family members exceeds six and that is followed in Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65). 14. In Reshma Kumari's case, in paragraph No.38 it has been provided that one must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependant members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependants. 15. The suitable multiplier to be applied as held in Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121) approved by the Constitution Bench in National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662) is '14'. 16. Claimants are four in number. So 1/4 has to be M.A.C.A No. 2136 of 2010 **10** deducted towards personal and living expenses. So the amount would be 7,500x12x14=12,60,000/-. From that deducting 1/4 towards personal and living expenses of the deceased, the balance would Rs.9,45,000/- (12,60,000-3,15,000). Deducting the amount already awarded, the enhanced amount towards dependency would be **Rs.5,37,000/-** (9,45,000-4,08,000). 17. The next contention of the learned counsel is with regard to the enhancement under the conventional heads as per the directions in Pranay Sethi's case followed by Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. (2018 (18) SCC 130) In Pranay sethi, the Apex court has held that Rs.15,000/- to be awarded under the head loss of estate. Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. 18. Apex Court has also held that the above amounts should be revisited on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. Judgment in Pranay Sethi's case was on 31.10.2017. So three years have elapsed. So the appellants are entitled for 10% M.A.C.A No. 2136 of 2010 **11** enhancement on the said amounts. 19. In this context, Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd. & Anr. [CDJ 2021 SC 1024] is to be taken note of. That was a case in which the accident occurred on 09.05.2013 and the judgment of the High Court of Orissa at Cuttack in MACA No.965/2016 was dated 07.03.2018. In that decision, under the conventional heads, following the principles in Pranay Sethi's case, the claimants were found to be entitled for 10% enhancement of Rs.16,500/- towards the loss of estate and Rs.44,000/- towards spousal consortium. Following that principles, a learned Single Judge of this Court in MACA No.1290/2011 dated 10.12.2021 granted 10% escalation on conventional heads irrespective of the date of accident. In Pranay Sethi's case while fixing 10% escalation in every three years, no reference was made with respect to the date of accident also. So I am of the considered view that claimants are entitled for 10% increase on conventional heads. 20. So, the amounts to be awarded under the conventional heads of loss of estate and funeral expenses would M.A.C.A No. 2136 of 2010 **12** be Rs.16,500/- each and Rs.44,000/- towards loss of consortium. 21. Next is with regard to the classification of consortium to be awarded. The law laid down by the Apex Court in Magma General Insurance Co.'s case is relevant to be taken note of. In that decision, the Apex Court while dealing with consortium in legal parlance, it has been classified into 'spousal consortium', 'parental consortium' and 'filial consortium'. The spousal consortium is described as rights pertaining to the relationship of husband – wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection and aid of the other in every conjugal relation”. (Black's Law Dictionary (5[th] ed. 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 accident leading to the death of a child which cause 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 life time. Children are valued for their love, affection, companionship and their role in the M.A.C.A No. 2136 of 2010 **13** family unit. Detailed description regarding filial consortium has also been made therein. It states that filial consortium is the right of parents to compensation in the case of an accidental death of a child. 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 consortium. 22. In the present case, claimants are wife, children and mother of the deceased. All claimants are entitled to get Rs.44,000/- each towards consortium, amounting to Rs.1,76,000/(44,000x4). Deducting the amount already awarded, Rs.10,000/by the Tribunal towards loss of consortium, balance would be Rs.1,66,000/-. Once compensation is awarded under consortium, claimants are not entitled to get any compensation towards love and affection. (See **New India Assurance Co. Ltd v. Somwati and Others** [2020 9 SCC 644]). So amount of Rs.10,000/awarded by the Tribunal towards loss of love and affection has to be deducted, the balance would be Rs.1,56,000/- (1,66,00010,000). Towards funeral expenses, Tribunal awarded Rs.5,000/-. Deducting that amount, the claimants are entitled to get M.A.C.A No. 2136 of 2010 **14** Rs.11,500/- (16,500-5,000) towards funeral expenses. No amount has been awarded towards loss of estate. So towards loss of estate, claimants are entitled to get Rs.16,500/-. 23. So under the conventional heads, claimants are entitled to get Rs. **1,84,000/-** (1,56,000+11,500+16,500). 24. Hence, in total claimants are entitled to get enhanced compensation of **Rs.7,21,000/-** (5,37,000+1,84,000). 25. In the result, the claimants are allowed to realize enhanced compensation of **Rs.7,21,000/-** (Seven lakh twenty one thousand only) which will carry interest at the rate of 6% per annum from the date of petition, till realization. The enhanced compensation shall be apportioned among the appellants in the ratio of 40:20:20:20. Tribunal found that drivers of both vehicles are responsible for the accident and insurer of both vehicles are equally held liable to compensate the petitioners. That fact is not further challenged. Hence that finding can be maintained. Hence, respondents 1 and 2 are directed to satisfy the additional compensation granted in this appeal equally together with interest, within a period of two months from the date of receipt of a certified M.A.C.A No. 2136 of 2010 **15** copy of this judgment, deducting the amount due towards balance court fee. 26. The disbursement of the amount to the claimants shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. Appellants/claimants shall provide their Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the standing counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. In the result appeal stands allowed. Parties shall bear their respective costs. **Sd/-** rps/ **M.R.ANITHA, JUDGE**