National Insurance Co. Ltd. v. Indira w/o Suku; Sivakumar s/o Suku; Syamkumar s/o Suku

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY ,THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940** **MACA.No. 773 of 2018** **AGAINST THE AWARD IN OPMV 114/2014 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR DATED 14-03-2017** ## **APPELLANT/THIRD RESPONDENT:** **THE NATIONAL INSURANCE CO.LTD., NORTH PARAVUR, 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** ## **RESPONDENTS/CLAIMANTS :** **1 INDIRA W/O SUKU, KOOVAPARAMBIL HOUSE, CHERAI, PALLIPPURAM,PIN-683514.** **2 SIVAKUMAR S/O SUKU, KOOVAPARAMBIL HOUSE, CHERAI, PALLIPPURAM,PIN-683514.** **3 SYAMKUMAR S/O SUKU, ODASSERRY HOUSE, KOOVAPARAMBIL HOUSE, CHERAI, PALLIPPURAM, PIN-683514.** **BY ADVS. SRI.VISHNU BABU SRI.SOORAJ K.ABRAHAM (R1 TO R3)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 M.A.C.A. No.773 of 2018 ## **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 granted by the Tribunal to the claimants in the proceedings. 2. The husband of the first claimant and the father of claimants 2 and 3 died in a motor accident took place on 14.1.2014. The deceased was aged 61 years at the time of accident. They claimed compensation in the proceedings against the owner, driver and insurer of the offending vehicle. The claim was for Rs.8,00,000/and the Tribunal has granted to the claimants a sum of Rs.6,52,000/by way of compensation. The insurer is aggrieved by the quantum of compensation granted by the Tribunal. Hence this appeal. 3. Heard the learned senior counsel for the appellant. 4. The learned senior counsel for the appellant raised mainly two points. The first point is that the specific averment in the claim petition was that the deceased was a fisherman earning a sum of Rs.5,000/- per month at the time of accident and the Tribunal has fixed compensation payable to the claimants for loss of dependency reckoning the monthly income of the deceased at Rs.8,000/-. 3 M.A.C.A. No.773 of 2018 According to the learned senior counsel, in so far as it was pleaded by the claimants that the deceased was earning only Rs.5,000/- per month, the Tribunal could not have reckoned the monthly income of the deceased at Rs.8,000/-. Placing reliance on the decision of the Apex Court in **National Insurance Company Limited v. Pranay Sethi** (2017(4) KLT 662), the learned senior counsel also contended that the maximum compensation that could be paid by the Tribunal under the conventional heads of funeral expenses, loss of estate and loss of consortium is Rs.70,000/- and the Tribunal has, in the instant case, awarded a sum of Rs.2,00,000/- under those heads. It was pointed out that the Tribunal has awarded compensation under the heads 'loss of love and affection', 'funeral expenses' and 'loss of consortium'. The amounts awarded under the said heads are Rs.75,000/-, Rs.25,000/- and Rs.1,00,000/- respectively. The contention of the learned counsel is that Rs.1,30,000/- is in excess of the eligibility of the claimants. 5. I have considered the contentions raised by the learned senior counsel. 6. It is seen that in **Pranay Sethi** , the Apex Court has held that the reasonable figures to be ordered as compensation on conventional heads, viz, loss of estate, loss of consortium and funeral expenses would be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- 4 M.A.C.A. No.773 of 2018 respectively. There is no dispute to the fact that the compensation granted by the Tribunal under the head 'loss of love and affection' is also, in substance, parental consortium granted to the children when parents die prematurely. If the compensation granted under the head 'love and affection' is also reckoned as parental consortium, the learned senior counsel is right in contending that the Tribunal has granted a total sum of Rs.2,00,000/- under the conventional heads. But, it is seen that in **Magma General Insurance Company Limited** v. **Nanu Ram and others** (2018 ACJ 2782), the Apex Court, after referring to **Pranay Sethi** held that in the case of unmarried persons, the parents and siblings are also entitled to filial consortium. That was a case where the deceased was a bachelor and compensation was claimed by the father and the siblings of the deceased. The Apex Court directed the insurer to pay compensation for loss of filial consortium to the father and sister at the rate of Rs.40,000/- each. If the decisions in **Pranay Sethi** and **Magma General Insurance Company** are understood harmoniously, it is evident that the compensation for loss of consortium provided for in **Pranay Sethi** is the compensation for loss of spousal consortium payable to the wife of the deceased. In the instant case, the deceased was survived by his wife aged 52 years and children aged 21 and 18 years respectively. If compensation for loss of consortium is awarded to all the three, the 5 M.A.C.A. No.773 of 2018 same itself would come to Rs.1,20,000/-. In addition, the claimants are entitled to Rs.30,000/- towards loss of estate and funeral expenses. The compensation payable to the claimants under the conventional heads would, therefore, come to Rs.1,50,000/-. 7. Coming to the compensation granted for loss of dependency, as noted, the argument is that since the claimants have stated that the deceased was earning a monthly income of Rs.5,000/-, the Tribunal ought to have fixed the compensation payable under the said head, reckoning the monthly income at Rs.5,000/- and the Tribunal has acted illegally in reckoning the monthly income of the deceased at Rs.8,000/-. I am unable to agree. Section 168 of the Motor Vehicles Act empowers the Tribunal to make an award determining the amount of compensation which appears to it to be just. “Just compensation", it is settled by now, is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered by the victim or the dependants of the victim, as the case may be, on account of the accident, as far as money can do, by applying the well-settled principles relating to award of compensation [See **Nagappa v. Gurudayal Singh,** (2003) 2 SCC 274, **Oriental Insurance Co. Ltd. v. Mohd. Nasir,** (2009) 6 SCC 280 and **Ningamma v. United India Insurance Co. Ltd.,** (2009) 13 SCC 710]. In other words, in terms of 6 M.A.C.A. No.773 of 2018 the scheme of the statute, the duty to determine just compensation in a given case is a duty vested in the Tribunal. No limitation whatsoever is imposed in terms of the provisions of the Act on the said power of the Tribunal. The attempt of the Tribunal, therefore, shall be to equate, as far as possible, the misery on account of the accident with the compensation, so that the dependants of the victim shall not face the vagaries of life on account of the discontinuance of the income earned by the victim. In the absence of any prescription in the statute that the Tribunal should determine the compensation on the basis of the claim made in the application for compensation on any head, according to me, the Tribunal is expected to fix the just compensation without succumbing to the technicalities of law, especially, procedural law dealing with the manner in which the application for compensation has to be preferred before the Tribunal. Further, after the amendment of the Act by Act 54 of 1994 with effect from 14-11-1994, the report on motor vehicle accident prepared by the police officer and forwarded to the Claims Tribunal under sub-section (6) of Section 158 is liable to be treated by the Tribunal as an application for compensation in terms of Section 166 (4) of the Act. Prior to the amendment in 1994, it was left to the discretion of the Tribunal as to whether the report should be treated as an application or not. In a report on accident, there is no question of reference to any claim for damages, different heads of 7 M.A.C.A. No.773 of 2018 damages or such other details. It is on account of the said reasons that the courts have held time and again that the Tribunal shall award just compensation, irrespective of the claim made in the proceedings and if required, even in excess of the claim [See **Rajesh v. Rajbir Singh,** (2013) 9 SCC 54]. There is, therefore, no difficulty in arriving at the conclusion that a victim or dependants of a victim in a motor accident, shall not be deprived of just compensation to which they are entitled to, merely for the reason that the claim in the application is only for a lesser amount. As noted, in the instant case, the accident took place on 14.1.2014. The deceased was a fisherman. In **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Limited** , (2011) 13 SCC 236, the Apex Court held that even in the case of a person who is unable to prove his income, compensation for loss of dependency has to be granted reckoning the notional income at Rs.4,500/-. That was a case arising from an accident took place in the year 2004. If the notional income of a person who is unable to prove his income can be reckoned as Rs.4,500/- per month in the context of an accident took place in the year 2004, the notional income of a person similarly placed, as in the present case, can be reckoned at least as Rs.9,000/- in the context of an accident took place in the year 2014. I take this view also having regard to the fact that it is a death case and the claimants 2 and 3 who 8 M.A.C.A. No.773 of 2018 are aged 21 and 18 respectively have lost their father at a point of time when they were to get financial support from their father for their education and for building up career. If that be so, the compensation payable to the claimants under the head 'loss of dependency' would come to Rs.5,04,000/- in the place of Rs.4,48,000/- granted by the Tribunal. The total compensation payable to the claimants would, therefore, come to Rs.6,58,000/-. As noted, the Tribunal has granted only a sum of Rs.6,52,000/-. The appeal, in the circumstances, is dismissed _in limine._ ## **Sd/-** ## **P.B.SURESH KUMAR** **JUDGE** TGS