National Insurance Company Limited v. Beena Mary and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY ,THE 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940** **MACA.NO. 2600 OF 2015** **AGAINST THE AWARD IN O.P.(M.V.) NO.856/2013 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM DATED 24-02-2015** ## **APPELLANT/3RD RESPONDENT :** **NATIONAL INSURANCE COMPANY LIMITED, KOLLAM NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G. ROAD, KOCHI-35.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS :** **1 BEENA MARY, W/O.WELLESLY VINCENT, "VINCENT DALE", 14 KARITHURA, CHAVARA, PIN 691320. 2 LINCY WELLESLY, D/O.WELLESLY VINCENT, "VINCENT DALE", 14 KARITHURA, CHAVARA, PIN 691320. 3 ANCY, D/O.WELLESLY VINCENT, "VINCENT DALE", 14 KARITHURA, CHAVARA, PIN 691320. 4 TINCY, D/O.WELLESLY VINCENT, "VINCENT DALE", 14 KARITHURA, CHAVARA, PIN 691320. BY ADV. SRI.B.MOHANLAL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.01.2019, ALONG WITH CROSS OBJECTION NO.71/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 2600 OF 2015 &** **CO.NO. 71 OF 2016 2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY ,THE 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940** **CO.NO. 71 OF 2016 IN MACA. 2600/2015** **AGAINST THE AWARD IN O.P.(M.V.) NO.856/2013 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM DATED 24-02-2015** **APPELLANTS/RESPONDENTS IN THE M.A.C.A/ PETITIONERS IN THE O.P.(M.V.) :** **1 BEENA MARY W/O. WELLESLY VINCENT,VINCENT DALE, 14 KARITHURA,CHAVARA, KOLLAM DISTRICT. 2 LINCY WELLESLY, D/O.WELLESLY VINCENT, VINCENT DALE, 14 KARITHURA,CHAVARA, KOLLAM DISTRICT. 3 ANCY WELLESLY, D/O. WELLESLY VINCENT, VINCENT DALE, 14 KARITHURA, CHAVARA, KOLLAM DISTRICT. 4 TINCY WELLESLY, D/O. WELLESLY VINCENT, VINCENT DALE, 14 KARITHURA, CHAVARA, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL SMT. PREETHA P.S.** ## **RESPONDENT/APPELLANT IN THE MACA** **AND 3RD RESPONDENT IN O.P.(M.V.) :** **THE NATIONAL INSURANCE COMPANY LIMITED, KOLLAM, NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE,OMANA BUILDING, M.G.ROAD, KOCHI-35.** **BY ADV. SRI.P.JACOB MATHEW** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 28.01.2019, ALONG WITH MACA. NO.2600/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 2600 OF 2015 &** **CO.NO. 71 OF 2016** **3** ## **JUDGMENT** This appeal is preferred against the award in O.P. (M.V.) No.856 of 2013 of the Motor Accidents Claims Tribunal, Kollam by the insurer. On 12.04.2013, one Wellesly Vincent sustained injuries in a motor accident near St.Agness school and the Motor Accidents Claims Tribunal awarded compensation of Rs.18,66,599/- (Rupees Eighteen Lakh Sixty Six Thousand Five Hundred and Ninety Nine only) to the legal representative of the deceased. Being aggrieved by that, the insurer preferred this appeal. 2. The deceased was aged 57 years at the time of accident. He was working as a loading and unloading worker at Indian Rare Earth, Chavara. The first petitioner, (Beena Mary, aged 48 years) is his wife and the 2[nd] petitioner (Lincy Wellesly, aged 26 years), 3[rd] petitioner (Ancy, aged 23 years), and 4[th] petitioner (Tincy, aged 19 years) are his daughters. Their case is that the deceased was the sole bread winner of the family and after his death, the entire family was **MACA.NO. 2600 OF 2015 &** **CO.NO. 71 OF 2016 4** thrown into great agony and misery and they claimed Rs.25,00,000/- (Rupees Twenty Five Lakhs only) as compensation. 3. It would be relevant and useful to refer the facts leading to the accident. The claimants case is that, on 12.04.2013, the deceased Wellesly Vincent was travelling as a pillion rider in a motorcycle KL-23/B-8360, when he reached at Neendakara St.Agness school, another vehicle KL-02/G-3178 hit against the motorcycle, as a result he sustained serious injuries and subsequently died. The owner and driver contended that the accident was due to the negligence of the rider of the motorcycle. The insurer admitted the insurance of the vehicle. The 1[st] petitioner was examined as PW1 and her documents were marked as Exts.A1 to A8. Respondents evidence consists of documentary evidence of Ext.B1. 4. The learned counsel appearing for the appellant contended that the deceased was aged 57 years at the time of accident. He will retire from service at the age of 60 years. After deducting income **MACA.NO. 2600 OF 2015 &** **CO.NO. 71 OF 2016 5** tax, he was getting Rs.21,279/- as the monthly income. There is reduction of income after retirement, but exorbitant amount was taken by the Tribunal for assessing compensation and excess amount was awarded towards conventional heads. 5. The legal representative of the deceased filed Cross Objection No.71 of 2016 and contended that just amount was not awarded towards loss of consortium as well as love and affection. The sole bread winner is no more. If the income is reduced, the entire family will be thrown into great agony and misery. If that be the position, the multiplicand and multiplier taken by the tribunal is very low. 6. In death cases, 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 **MACA.NO. 2600 OF 2015 &** **CO.NO. 71 OF 2016 6** 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. ## 7. Apex Court in **National Insurance Company** **V. Pranay Sethi [2017 (4) KLT 622 (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 **MACA.NO. 2600 OF 2015 &** **CO.NO. 71 OF 2016** **7** 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. 8. There is no dispute with regard to occupation of the deceased. He was a loading and unloading worker at Indian Rare Earth. Ext.A6 is the salary certificate which shows ## **MACA.NO. 2600 OF 2015 &** **CO.NO. 71 OF 2016 8** that he was getting Rs.26,274/- per month, which includes HRA and DA. The income tax was deducted at source at the rate of Rs.4,081/- per year. After deducting income tax, he was getting Rs.21,279/-. There are four dependents hence, in view of **Sarla Verma** v. **Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** , ¼[th] of the income was deducted by the Tribunal. In the above decision, it was stated that while fixing compensation of the legal representatives of the deceased, the multiplier method should be followed. In view of Pranay Sethi (Supra), future prospects has also to be considered by the Tribunal. Since he was aged 57 years, 15% (21,279x15/100) i.e., Rs.3,192/has to be added towards future prospects and the total monthly income comes to Rs.24,471/- and the dependancy compensation is Rs.26,42,868/- (24471x12x9). From that, ¼[th] (Rs.6,60,717/-) has to be deducted and the balance is Rs.19,82,151/-. The learned Tribunal awarded Rs.17,23,599/- for loss of dependancy and the balance is Rs.2,58,552/-. 9. The legal representatives of the deceased are entitled to get just amount towards love and affection and **MACA.NO. 2600 OF 2015 &** **CO.NO. 71 OF 2016 9** ## loss of consortium. 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)]. **MACA.NO. 2600 OF 2015 &** **CO.NO. 71 OF 2016** **10** 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, 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 **MACA.NO. 2600 OF 2015 &** **11** **CO.NO. 71 OF 2016** 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). 10. In this case there are four dependants. Therefore, the claimants are entitled to get Rs.1,60,000/- (Rs.40,000/each) for filial consortium and Rs.2,00,000/- (Rs.50,000/each) for love and affection. The learned Tribunal awarded Rs.10,000/- for Love and affection and they are entitled to get Rs.1,90,000/- on that head. In view of Pranay Sethi (Supra) the amounts towards funeral expenses and loss of estate are Rs.15,000/- each. The learned Tribunal awarded Rs.25,000/- towards funeral expenses and Rs.5,000/- **MACA.NO. 2600 OF 2015 &** **CO.NO. 71 OF 2016 12** towards loss of estate. Hence an amount of Rs.10,000/- has to be deducted from funeral expenses and Rs.10,000/- has to be added towards loss of estate. Learned Tribunal awarded Rs.1,00,000/- for Loss of support and that amount has to be set aside. Therefore, the claimants are entitled to get an amount of Rs.5,08,552/- (Rupees Five Lakh Eight Thousand Five Hundred and Fifty Two only) with 9% interest and proportionate cost in addition to the amount awarded by the learned Tribunal. The insurer is directed to satisfy the award within a period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. M.A.C.A. and Cross Objection are disposed of as above. Sd/- **P.D.RAJAN, JUDGE** NS /True Copy/ P.A. To Judge