National Insurance Co. Ltd. v. Prasan­na and others

**C.R** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940** ## **MACA.No. 1127 of 2016** **AGAINST THE AWARD IN OPMV 1509/2014 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/3RD RESPONDENT:** **THE NATIONAL INSURANCE CO. LTD** **ERNAKULAM,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 PRASANNA, AGED 37 YEARS, W/O.LATE SHILIN.M.T,S/O.THANKAPPAN, MULLEPARAMBIL HOUSE,MANJUMMEL.P.O,ELOOR, PIN-683501. 2 SWATHIKA SHILIN, AGED 8 YEARS, D/O.LATE SHILIN.M.T,MULLEPARAMBIL HOUSE,MANJUMMEL.P.O,ELOOR, PIN-683501. 3 SHITHIN.M, AGED 18 YEARS, S/O.LATE SHILIN.M.T,MULLEPARAMBIL HOUSE,MANJUMMEL.P.O,ELOOR, PIN-683501.(RESPONDENTS 2 & 3 ARE MINORS REPRESENTED BY THEIR MOTHER 1ST RESPONDENT). 4 THANKAPPAN, AGED 72 YEARS, F/O.LATE SHILIN.M.T,MULLEPARAMBIL HOUSE,MANJUMMEL.P.O,ELOOR, PIN-683501. 5 VASUMATHY, AGED 67 YEARS, M/O.LATE SHILIN.M.T,MULLEPARAMBIL HOUSE,MANJUMMEL.P.O,ELOOR, PIN-683501. BY ADVS. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2019, ALONG WITH CO.25/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 1127 of 2016 & CO.No. 25 of 2017 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940** ## **CO.No. 25 of 2017 IN MACA. 1127/2016** ## **CROSS OBJECTORS/RESPONDENTS:** - **1 PRASANNA, W/O.LATE SHILIN M.T., MULLEPARAMBIL HOUSE, MANJUMMAL P.O.,ELOOR-683501** - **2 SWATHIKA SHILIN, D/O.SHILIN M.T.,MULLEPARAMBIL HOUSE, MANJUMMAL P.O.,ELOOR-683501 CROSS OBJECTOR 2, MINOR, REPRESENTED BY MOTHER THE FIRST CROSS OBJECTOR** - **3 SHITHIN M., S/O.SHILIN M.T., MULLEPARAMBIL HOUSE, MANJUMMAL P.O.,ELOOR-683501 CROSS OBJECTOR 3, MINOR, REPRESENTED BY MOTHER THE FIRST CROSS OBJECTOR** - **4 THANKAPAN, FATHER OF SHILIN M.T.,MULLEPARAMBIL HOUSE, MANJUMMAL P.O.,ELOOR-683501** - **5 VASUMATHY M., MOTHER OF SHILIN M.T.,MULLEPARAMBIL HOUSE, MANJUMMAL P.O.,ELOOR-683501(DIED ON 20.6.2014)** **5TH RESPONDENT DIED ON 20.06.2014 AND – AS A PARTY SINCE IN THE MACA 1127/2016 SHE IS A RESPONDENT** **BY ADVS. SMT.KOCHUMOL KODUVATH SRI.JACOB ABRAHAM** **RESPONDENT & APPELLANT / 3RD RESPONDENT:** **THE NATIONAL INSURANCE CO. LTD** **ERNAKULAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE,2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-682035** **BY ADV. SMT.K.S.SANTHI** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2019, ALONG WITH MACA.1127/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 1127 of 2016 & CO.No. 25 of 2017 3 **==> picture [27 x 11] intentionally omitted <==** ## **JUDGMENT** This appeal is preferred against the award in OP(MV) No.1509/2014 of the Motor Accidents Claims Tribunal, Ernakulam (for short “the Tribunal”) by the insurer of the offending vehicle. The deceased Shilin met with an accident when he was driving his goods autorickshaw, immediately he was removed to hospital while undergoing treatment he succumbed to the injuries. The legal representatives of the deceased preferred the above claim petition under Section 166 of the Motor Vehicles Act, 1988 and the Tribunal awarded compensation of Rs.23,51,900/-. Being aggrieved by that award amount, insurer preferred this appeal. 2. It would be relevant and useful to refer the facts leading to the accident. On 23.01.2014 at 11.30 pm, the deceased Shilin was driving his goods autorickshaw KL-07/AR 261 from Kalamassery to Manjummel, when he reached at the place of occurrence, another car KL-44/C 533 driven in a rash and negligent manner hit against the autorickshaw, as a result he sustained serious injuries. The driver and owner of the offending vehicle were set ex-parte. The insurer admitted the MACA.No. 1127 of 2016 & CO.No. 25 of 2017 4 insurance of the vehicle. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A11. 3. The dependents of the deceased filed a cross objection No.25/2017 and contended that the deceased was aged 39 years at the time of accident and he was getting more than Rs.7,500/- per month. The Tribunal took 15 days income at the rate of Rs.500/-. Therefore, the monthly income would be higher than Rs.7,500/-. The first petitioner Prasanna aged 35 years, is his wife, the second petitioner Swathika Shilin aged 6 years is his daughter, the third petitioner Shithin M. aged 56 days is his son, the fourth petitioner Thankappan aged 70 years is his father and the fifth petitioner Vasumathy aged 65 years is his mother. The cross objector contended that they were dependents of the deceased. 4. The learned counsel appearing for the appellant contended that the deceased was aged 40 years at the time of accident. Excess amount was awarded towards loss of consortium, love and affection, loss of estate and funeral expense. Hence that amount has to be deducted from the award amount. The appellant has no dispute with regard to the multiplicand and the multiplier. MACA.No. 1127 of 2016 & CO.No. 25 of 2017 5 5. In death case, the assessment 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 compensation 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. It is pertinent to note that 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. Another crucial aspect is that 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 earned more income also have to be considered by the tribunal. ## 6. 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:-_ _(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_ MACA.No. 1127 of 2016 & CO.No. 25 of 2017 6 _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._ _(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._ 7. The deceased was 40 years at the time of his death. His income was fixed as Rs.7,500/- per month. In the absence MACA.No. 1127 of 2016 & CO.No. 25 of 2017 **==> picture [8 x 9] intentionally omitted <==** of any dispute, the income taken by the Tribunal is confirmed. But in view of _**Pranay Sethi**_ (supra), 40% is added towards future prospects, that is Rs.3,000/-. The total monthly income for calculating dependency is Rs.7,500+3,000=Rs.10,500/-. The dependency compensation is Rs.10,500x12x15= Rs.18,90,000/-. 1/4[th] is to be deducted from the above amount and the balance amount is Rs.14,17,500/-. The learned Tribunal awarded Rs.13,16,250/- and the balance amount is Rs.1,01,250/-. In view of _**Pranay Sethi**_ (supra), Rs.10,000/- has to be deducted from funeral expense and Rs.10,000/- from loss of estate. Hence the balance amount is Rs.81,250/-. 8. Appellant contended that the parents and children of the deceased are not entitled to get filial consortium and parental consortium along with spousal consortium. While adverting to the above argument, apex court in Rajesh and Ors. vs. Rajbir Singh and Ors. (2013 ACJ 1403) settled the law and held that “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.” The ratio of a decision of the apex court, on a legal issued is a precedent and it is binding on all courts. But an MACA.No. 1127 of 2016 & CO.No. 25 of 2017 **==> picture [8 x 9] intentionally omitted <==** observation made by the apex Court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited. In legal parlance, “consortium” is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly considered by the court earlier. Therefore, the loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept on non pecuniary damage for loss of consortium is one of the major heads of award of compensation to the wife, children and parents. By loss of consortium, the courts have a duty to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. In _**Pranay Sethi**_ (supra) it was held that compensation for loss of consortium should be Rs.40,000/- to the spouse. There is no illegality to award the same amount towards parental consortium and filial consortium. Unlike the compensation awarded in other heads the legal heirs are otherwise MACA.No. 1127 of 2016 & CO.No. 25 of 2017 9 adequately compensated for the pecuniary loss, it would be proper to award a just amount under this head. Parental consortium is awarded to the child upon the premature death of a parent, for loss of 'parental aid' protection, affection, society, discipline, guidance and training'. Similarly filial consortium is the right of the parents to get compensation in the case of the death of their child. Hence, I am of the view that it would be just and reasonable that the courts and Tribunal should award at least Rs.40,000/- each for loss of spousal consortium, parental consortium and filial consortium. In view of _**Pranay Sethi**_ (supra), which should be periodically enhanced by every three years. 9. Apex court in _**Magma General Insurance Co. Ltd. v. Nanuram alias Chuhru Ram and others [2018 ACJ 2782]**_ considered this point and 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_ MACA.No. 1127 of 2016 & CO.No. 25 of 2017 10 ## _behalf was raised by the claimant._ _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 their child during their lifetime. Children are valued for their love, affection,_ MACA.No. 1127 of 2016 & CO.No. 25 of 2017 11 ## _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._ _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)._ MACA.No. 1127 of 2016 & CO.No. 25 of 2017 **==> picture [16 x 8] intentionally omitted <==** The Tribunal awarded Rs.3,00,000/- towards compensation for love and affection and Rs.1,00,000/- towards loss of consortium. The death of a child by accident causes great shock and mental agony to the parents and family. The great mental agony for a parent is the lose of the child during their lifetime. Children are valued for their love, affection, companionship and support in their family unit. In view of _**Magma**_ 's case (supra), they are entitled to get Rs.50,000/each towards love and affection and Rs.40,000/- each towards loss of consortium. Therefore, they are entitled to get Rs.4,50,000/- under both heads, but the Tribunal awarded Rs.4,00,000/- alone, hence an amount of Rs.50,000/- has to be added towards compensation. The total enhanced compensation is Rs.1,31,250/- (81250+50000). Therefore, the cross objectors are entitled to get enhanced compensation of Rs.1,31,250/- (Rupees One Lakh Thirty One Thousand Two Hundred and Fifty only) with 9% interest and proportionate cost in addition to the award amount. The insurer is directed to satisfy the award within 30 days from the date of receipt of a copy of this judgment, failing which it will carrry 12% interest from the date of default. MACA.No. 1127 of 2016 & CO.No. 25 of 2017 **==> picture [16 x 9] intentionally omitted <==** Accordingly this appeal is dismissed and the cross objection is partly allowed and disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng/05.03.19