National Insurance Co. Ltd v. Sobhana Ramachandran Nair and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY ,THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940** ## **MACA.No.1989 of 2014** **AGAINST THE AWARD IN OPMV 654/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA DATED 18-02-2014** ## **APPELLANT/3RD RESPONDENT IN THE OP:** **NATIONAL INSURANCE CO. LTD** **PATHANAMTHITTA, REPRESENTED BY THE ADMINISTRATIVE OFFICER, NATIONAL INSURANCE CO. LTD., KOCHI REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDINGS, PADMA JUNCTION, MG ROAD, KOCHI - 35.** ## **BY ADV. SRI.A.R.GEORGE** ## **RESPONDENTS/CLAIMANTS IN THE OP:** - **1 SOBHANA RAMACHANDRAN NAIR W/O RAMACHANDRAN NAIR, CHAITHANYA, ELANTHOOR PO, PATHANAMTHITTA - 689 643.** - **2 SOORAJ R NAIR S/O RAMACHANDRAN NAIR, -DO- -DO- - 689643** - **3 SREELAJA R NAIR D/O RAMACHANDRAN NAIR, -DO- -DO- - 689643** - **4 SREEPRIYA R NAIR (NOW MAJOR), D/O RAMACHANDRAN NAIR, -DO- -DO- 689643** **BY ADVS.** **SRI.JELSON J.EDAMPADAM SRI.PIRAPPANCODE V.S.SUDHIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1989 of 2014 2 ## **JUDGMENT** This appeal is preferred against the award in O.P. (MV)No.654/2006 of the Motor Accidents Claims Tribunal, Pathanamthitta by the insurer. One Ramachandran Nair died in a motor accident and the legal representatives of the deceased preferred a claim petition under Section 166 of the Motor Vehicles Act, 1988 and the Motor Accidents Claims Tribunal awarded compensation of Rs.7,67,025/- and directed the insurer to satisfy the award. Being aggrieved by that, the insurer preferred this appeal. 2. It would be relevant and useful to refer the facts leading to the accident. On 05.11.2005 at 8.30 pm, the deceased Ramachandran was riding a scooter through Elanthoor – Omalloor public road, when he reached at the place of occurrence, a lorry KL7/S-5787 driven in a rash and negligent manner hit against the deceased, as a result he sustained serious injuries and subsequently died. The accident was due to the rash and negligent driving of the lorry by its driver. The insurer admitted the insurance of the vehicle. Claimants did not adduce any oral evidence, but their MACA.No.1989 of 2014 3 documents were marked as Exts.A1 to A9. 3. Claimants did not dispute the award. They have not filed any appeal or any cross objection in this appeal. The 1[st] claimant Sobhana is the wife of the deceased, 2[nd] claimant Sooraj R. Nair, 3[rd] claimant Sreelaja R. Nair and 4[th] claimant Sreepriya R. Nair are the children of the deceased and 5[th] claimant Lakshmikuttyamma was the mother of the deceased, who died after filing the claim petition. 4. The learned counsel appearing for the insurer contended that excess amount was awarded towards funeral expense, loss of consortium and love and affection. The deceased was aged 57 years at the time of accident and 15% was added towards future prospects. Considering the age of the deceased, claimants are entitled to get 10% increase towards the dependency compensation. 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 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 MACA.No.1989 of 2014 4 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 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 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%._ MACA.No.1989 of 2014 5 _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 a supply manager and was getting Rs.36,000/- per month, but the learned Tribunal took notional income of Rs.3,500/- in the absence of any evidence. In view of _**Pranay Sethi**_ (supra), he is entitled to get 10% towards future prospects. But considering his age and occupation, low income was taken by the Tribunal. Therefore 15% taken towards future prospects is not disturbing. Therefore, the dependency compensation awarded by the MACA.No.1989 of 2014 6 ## Tribunal is Rs.3,26,025/- is confirmed. 8. 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._ _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_ MACA.No.1989 of 2014 7 _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, 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_ MACA.No.1989 of 2014 8 _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)._ 9. The learned Tribunal awarded Rs.3,00,000/towards love and affection and Rs.1,00,000/- towards loss of consortium. In view of _**Magma**_ 'case (supra), respondents are entitled to get Rs.2,50,000/- towards love and affection and Rs.1,60,000/- towards loss of consortium. In view of _**Pranay Sethi**_ ' case (supra), respondents are entitled to get Rs.15,000/- towards funeral expense and Rs.10,000/- excess amount was awarded, but Rs.5,000/- alone was awarded towards loss of estate, since they are entitled to get Rs.15,000/- towards loss of estate in view of _**Pranay Sethi.**_ Assessing the entire calculation made by the Tribunal, MACA.No.1989 of 2014 9 claimants/respondents are the losers. They have not filed any appeal against the award or cross objection in this appeal. In the circumstances, the argument advanced by the appellant is unsustainable. There is no merit in this appeal and it is dismissed accordingly. Sd/- **P.D.RAJAN JUDGE** bng/14.02.19