National Insurance Co. Ltd. v. Aysha and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 27TH DAY OF FEBRUARY 2019 / 8TH PHALGUNA, 1940** ## **M.A.C.A.No. 1154 of 2016** **AGAINST THE AWARD IN OPMV 443/2010 of ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR DATED 16-11-2015** ## **APPELLANT/3RD RESPONDENT:** **THE NATIONAL INSURANCE CO.LTD., PALARIVATTOM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35.** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN** ## **RESPONDENT/CLAIMANTS:** |**1**|**AYSHA**| |---|---| ||**W/O.RAVEEDRAN, KUZHUVELIPPADATH HOUSE,**| ||**VALLUVALLY KARA, KOTTUVALLY VILLAGE - 683 518.**| |**2**|**REMYA**| ||**D/O.RAVEENDRAN, KUZHUVELIPPADATH HOUSE,**| ||**VALLUVALLY KARA, KOTTUVALLY VILLAGE - 683 518.**| |**3**|**RAJEESH**| ||**S/O.RAVEENDRAN, KUZHUVELIPPADATH HOUSE,**| ||**VALLUVALLY KARA, KOTTUVALLY VILLAGE - 683 518.**| |**4**|**DIPIN**| ||**S/O.ANTONY, KANASSENY HOUSE, VALLUVALLY KARA,**| ||**KOONAMMAVU PO, KOTTUVALLY VILLAGE - 683 518.**| |**5**|**ABHILASH**| ||**S/O.SUGATHAN, KUDAVATHUPARAMBIL HOUSE,**| ||**EAST OF KOCHAL, VALLUVALLY KARA, KONNAMMAVU PO,**| ||**KOTTUVALLY VILLAGE - 683 518.**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 1154 of 2016** **2** ## **JUDGMENT** This appeal is preferred against the award in OP(MV)No.443 of 2010 of Motor Accidents Claims Tribunal, North Paravur by the injured. On 20.06.2010 at 6.45.pm one Raveendran sustained injuries in a motor accident and he died while undergoing treatment. The legal representatives of the deceased preferred the above claim petition under section 166 of the Motor Vehicles Act 1988 and the Motor Accidents Claims Tribunal awarded compensation of Rs.8,76,000/-. Being aggrieved by that, the insurer preferred this appeal. 2. It would be relevant to refer the facts leading to this accident. On 20.06.2010 at 6.45.pm the deceased was walking through the side of Paravur – Varappuzha N.H.Road, when he reached at Kavilnada, motor cycle KL-7/BG-5836 driven in a rash and negligent manner hit against the deceased. **M.A.C.A.No. 1154 of 2016** **3** Immediately he was removed to hospital, while undergoing treatment on 23.06.2010 he succumbed to the injuries. The driver and owner were set ex-parte in the lower court. The insurer admitted the insurance of the vehicle. Claimants evidence consist of oral testimony of PW1 and marked as Ext.A1 to A5. Respondents evidence consist of Ext.B1. 3. The deceased Raveendran was aged 59 years at the time of accident. The first respondent Aysha is his wife, the second petitioner Remya is his daughter, the third claimant Rajesh is his son. They contended that the deceased was working as a non teaching staff at Rajasree Public School and was getting Rs.5,000/- as his monthly income. There was no appearance for the claimants in this appeal. 4. 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:-_ **M.A.C.A.No. 1154 of 2016** **4** _(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 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._ **M.A.C.A.No. 1154 of 2016** **5** _(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._ 5. 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. 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 **M.A.C.A.No. 1154 of 2016** **6** earned more income also have to be considered by the tribunal. The deceased was 59 years at the time of the accident and the multiplier is 9. In view of _**Pranay Sethi**_ 10% future prospects has to be added. Therefore the monthly income is 5,500/-. The dependency compensation is Rs.5,500x12x9 and 1/3 amount has to be deducted and amount is Rs.3,96,000/-. The Motor Accidents Claims Tribunal awarded Rs.3,60,000/- and the balance amount is Rs.36,000/-. In view of _**Pranay Sethi**_ Rs.10,000/- to be deducted from funeral expenses and Rs.10,000/- from loss of estate. The balance amount is Rs.16,000/-. 6. Apex court in _**Magma General Insurance Co. Ltd. v. Nanuram alias Chuhru Ram and others [ 2018 ACJ 2782]**_ 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 claimant._ **M.A.C.A.No. 1154 of 2016** **7** _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 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_ **M.A.C.A.No. 1154 of 2016** **8** _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, therefore, 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, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium._ **M.A.C.A.No. 1154 of 2016** **9** _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)._ The Motor Accidents Claims Tribunal awarded Rs.3,00,000/towards love and affection and Rs.1,00,000/- towards consortium. In view of _**magma**_ they are entitled to get Rs.1,50,000/- towards love and affection and Rs.1,20,000/towards loss of consortium. Hence Rs.1,50,000/- has to be deducted from the award amount and Rs.20,000/- has to be added towards loss of consortium. Therefore total amount of Rs.1,14,000/- has to be deducted. Hence the award amount of the Motor Accidents Claims Tribunal Rs.8,76,000/- is modified and the claimants are entitled to get Rs.7,62,000/- (Rupees Seven Lakhs Sixty Two Thousand Only) with 9% interest and proportionate cost. The insurer is directed to satisfy the modified compensation 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. The driver of the vehicle had no valid driving license **M.A.C.A.No. 1154 of 2016** **10** at the time of the accident and the Motor Accidents Claims Tribunal found that there was violation of policy condition. In the circumstance, the appellant is directed to satisfy the award and reimburse the amount from the owner of the vehicle as per law. This appeal is disposed of, as above. Sd/nak **P.D.RAJAN JUDGE**