National Insurance Co. Ltd. v. Rahim and Shameemath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939** ## **MACA.NO. 1549 OF 2014** **------------------------** **AGAINST THE AWARD IN OP(MV)NO.1026/2008 OF M.A.C.T., PERUMBAVOOR DATED 31-01-2014** **APPELLANT/3RD RESPONDENT** **-------------------------** **NATIONAL INSURANCE CO. LTD** **REP. BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, COCHIN-682035.** **BY ADV.SRI.E.M.JOSEPH** **RESPONDENTS/CLAIMANTS:** **----------------------** **1. RAHIM, AGED 48, S/O. SAIDUMUHAMMAD, AMBADAN HOUSE, CHELAMATTOM, VALLAM, PERUMBAVOOR-683550.** **2. SHAMEEMATH, AGED 41, W/O. RAHIM, AMBADAN HOUSE, CHELAMATTOM, VALLAM, PERUMBAVOOR-683550.** **R1 & R2 BY ADV. SMT.ANUPAMA JOHNY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **vgd** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = =** **M.A.C.A.No.1549 of 2014(A) - - - - - - - - - - - - - - - - - - - - - -** _Dated this the 14[th] day of February, 2018_ ## **J U D G M E N T** The National Insurance Company Limited, the 3[rd] respondent in O.P.(MV) No.1026 of 2008, on the files of the Motor Accidents Claims Tribunal, _(hereinafter referred to as 'the Tribunal')_ Perumbavoor, has come up in appeal challenging the quantum of compensation determined under various heads of claim. The above application was filed by the respondents herein under Section 166 of the Motor Vehicles Act, 1988, claiming an sum of `6,50,000/-, as compensation on account of the death of their minor child in an accident occurred on 08.06.2007. On 08.06.2007, at 4.45 pm, while the minor child was walking through the road, the offending school bus driven by the 1[st] respondent in a rash and negligent manner hit down him causing serious bodily injuries to him, to which he succumbed on the same day. M.A.C.A.No.1549 of 2014 2 2. According to them, the accident arose out of the use of offending vehicle and caused by the rash and negligent driving of the said vehicle, owned by the 2[nd] respondent, driven by the 1[st] respondent and insured with the 3[rd] respondent. 3. The Insurance Company opposed the said application, disputing the quantum of compensation claimed under various heads; but admitted the coverage of the insurance policy issued by them to the 2[nd] respondent. 4. After considering the evidence on record, the Tribunal passed the impugned award granting `4,10,500/to the respondents, as compensation. The adequacy and correctness of the quantum of compensation determined under various heads are challenged on the ground that the amount granted under different heads of claim are exorbitant and disproportionate with the actual sufferings and loss. 5. Heard the learned counsel for the appellant and M.A.C.A.No.1549 of 2014 3 the learned counsel for the respondents. 6. It is contended by the appellant that the Tribunal went wrong in granting compensation for 'loss of expectation of life', when compensation was granted for 'loss of dependency' and 'loss of love and affection' under different heads. In other words, according to the learned counsel for the appellant, the compensation for 'loss of expectation of life' is implied in the compensation for 'loss of dependency'. So no amount could have been awarded separately for 'loss of expectation of life', when compensation was granted for 'loss of estate' and 'loss of dependency'. Further, it is contended that the compensation granted under the head 'love and affection' is exorbitant and unsustainable, in view of the decision of this Court in _**New India Assurance Company Ltd. v. Vijayan**_ [2016(1) KLT 704]. 7. Per contra, the learned counsel for the respondents advanced arguments to justify the quantum of M.A.C.A.No.1549 of 2014 4 compensation determined under various heads of claim. According to the learned counsel, since the amount granted under different heads is just and reasonable, there is no circumstances warranting interference with the amount determined by the Tribunal. 8. In view of the arguments at the Bar, the point to be considered is, whether the quantum of amount determined under the above heads of claim is just and fair, in view of the evidence on record? It is not disputed that the minor child was aged three years only at the time of death and the said child was the only son of the respondents. The learned counsel for the appellant submitted that in view of the decision of this Court in _**New**_ ## _**India Assurance Company Ltd. v. Vijayan [2016(1)KLT**_ _**704]**_ , no amount more than `1,00,000/- (Rupees One lakh only) can be awarded under the head 'loss of love and affection'. This Court is not inclined to accept the said argument in view of the decision of the Supreme Court in M.A.C.A.No.1549 of 2014 5 ## _**Kala Devi and others v. Bhagwan Das Chauhan and**_ _**others [2014(ACJ) 2875]**_ , wherein the Supreme Court has granted `2,00,000/- (Rupees Two lakhs only) towards the head 'loss of love and affection'. This Court is of the view that in view of the statutory mandate of just compensation, there cannot be a capping of compensation for loss of love and affection and it depends upon the facts and circumstances of each case. In the instant case, the deceased child is the only son of the respondents. Therefore, I do not find any reason to interfere with the quantum of compensation determined under the head, 'loss of love and affection'. 9. Coming to the compensation for 'loss of expectation of life', as rightly submitted by the learned counsel for the appellant, the compensation for loss of expectation of life is also implied in the compensation for loss of estate and dependency. Where, loss of dependency is determined on the basis of monthly notional income, no M.A.C.A.No.1549 of 2014 6 amount could have been separately awarded for loss of expectation of life. Therefore, `75,000/- (Rupees Seventy Five thousand only) granted under the head 'loss of expectation of life' would stand set aside. 10. The learned counsel for the appellant further contended that 1/3[rd] of the monthly income was deducted for living expense when the deceased was a child. According to the learned counsel, the Tribunal ought to have taken 1½ of the monthly income to determine loss of dependency in view of the decision of the Supreme Court in _**Sarla Verma**_ _**& others v. Delhi Transport Corporation & another**_ _**[2010(2)KLT 802(SC)]=[2009 (6) SCC 121]**_ . On the other hand, the learned counsel for the respondent cited the decision in _**New India Assurance Company Ltd. v. Vijayan**_ **[2016(1) KLT 704]** and invited my attention to Paragraph.15. 11. Going by Paragraph.15 of the said decision, it is seen that this Court has considered the question whether M.A.C.A.No.1549 of 2014 7 the Tribunal can be justified in taking 1/3[rd] of the income to deduct the living expense in the case of a child below aged 15 years. This Court in the said decision held as follows: “15.Next question to be considered is whether the deduction towards the probable personal expenses should have been 1/3[rd] or 50% as contended by the appellant/insurance company. As mentioned already, after filling up the lacuna in Sarla Verma’s case with regard to the multiplier for children upto 15 years, the three member Bench of the Apex Court held in Reshma Kumari’s case that the multiplier shall be ‘15’ in such cases and then the compensation should be worked out as given in the 2[nd] schedule. Coming to the 2[nd] Schedule, only 1/3[rd] can be deducted in such cases and as such we approve the course pursued by the Tribunal in deducting only 1/3[rd] towards the personal expenses and treating the balance 2/3[rd] as the probable contribution. On re-working the compensation for the loss of death, it comes to 3000 x 12 x 15 x 2/3[rd] ordered = 3.6 lakhs; whereas the Tribunal has awarded a sum of Rs.4.8 lakhs.” M.A.C.A.No.1549 of 2014 8 In view of the above decision, the Tribunal is justified in deducting 1/3[rd] of the monthly income for deducting living expenses of the deceased child, relying on the 2[nd] Schedule under 163A of the Motor Vehicles Act, 1988. In the above view, the argument challenging the percentage of deduction, to determine the personal living expense would stand rejected. 12. It is further contended that the quantum of compensation determined under the head ‘funeral expenses’ is also excessive, in view of the decision of the Supreme Court in _**National Insurance Company Limited v. Pranay Sethi and others [2017(5) KHC 350]**_ . Going by **Pranay Sethi** ’s case (supra), it is seen that the Apex Court has capped the compensation for funeral expense at `15,000/- and in the instant case `25,000/- was given under the said head. Consequently, relying on the decision in **Pranay Sethi** ’s case (supra) compensation for funeral expense will stand reduced to `15,000/- from `25,000/-. M.A.C.A.No.1549 of 2014 9 Thus the total compensation payable to the respondents is `3,25,500/- (`4,10,500 – `85,000). All other findings of the Tribunal would stand undisturbed and operative. Needless to say, the amount will carry interest as stipulated by the Tribunal. The MACA is allowed to the above extent. Sd/- **K. HARILAL, JUDGE** DST/vgd