National Insurance Company Limited v. Sophy and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE THURSDAY, THE 11TH DAY OF AUGUST 2016/20TH SRAVANA, 1938 MACA.No. 492 of 2016 () ------------------------ AGAINST THE AWARD IN OPMV 403/2011 of M.A.C.T.,PERUMBAVOOR DATED 28.10.2015 APPELLANT(S)/2ND RESPONDENT: --------------------------- NATIONAL INSURANCE COMPANY LIMITED PERUMBAVOOR NOW REPRESENTED BY ITS ASST. MANAGER, KOCHI REGIONAL OFFICE,OMANA BUILDING, M.G. ROAD, KOCHI-35 BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT(S): -------------- ## 1. SOPHY W/O SUNIL, VALAVI HOUSE, NOCHIMA KARA, ADIVARAM BHAGAM, NAD PO, ALUVA-683 320 2. SURESH S (MINOR) VALAVI HOUSE, NOCHIMA KARA, ADIVARAM BHAGAM, NAD PO, ALUVA683 320 3. MEICAH S (MINOR) VALAVI HOUSE, NOCHIMA KARA, ADIVARAM BHAGAM, NAD PO, ALUVA683 320 ## 4. LINCY SEBASTIAN W/O SEBASTIAN, VALAVI HOUSE, NOCHIMA KARA, ADIVARAM BHAGAM, NAD PO, ALUVA-683 320 (MINOR RESPONDENTS 2 AND 3 REPRESENTED BY THEIR MOTHER 1ST RESPONDENT) R1-R4 BY ADV. SRI.A.N.SANTHOSH R1-R4 BY ADV. SRI.ELSON SIMON THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N. Ravindran & A. Muhamed Mustaque, JJ.** **- - - - - - - - - - - - - - - - - - - - - -- - -** ## **M.A.C.A.No.492 of 2016 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] August, 2016** ## **JUDGMENT** ## **P.N. Ravindran, J.** The appellant is the second respondent in O.P.(MV) No.403 of 2011 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The respondents are the claimants therein. They had in the claim petition prayed for award of the sum of Rs.50,00,000/- as compensation for the death of Sunil, husband of the first claimant, father of claimants 2 and 3 and son of the fourth claimant, in a motor accident that took place on 21.9.2010. They had in the claim petition stated that while late Sunil was riding his motor bike along the Aluva - Munnar road, a motor car, owned and driven by the first respondent came from the opposite direction, collided with the motor bike and in that accident the victim sustained serious injuries and succumbed to the injuries sustained by him on the way to Taluk Headquarters Hospital, Aluva. They contended that the accident took place solely due to the rash and negligent driving of the first respondent, the owner-cum- driver of the motor car. 2. Upon receipt of notice, the first respondent entered appearance and filed a written statement denying the allegation that MACA 492/2016 2 he was responsible for the accident. He contended that the amount claimed as compensation is exorbitant and excessive and that in the event of compensation being awarded, the insurer is liable to pay the same. The appellant in this appeal entered appearance and filed a written statement admitting the existence of a valid policy of insurance. It contended that the compensation claimed is exorbitant and excessive. It also raised a contention that the insurer was not negligent and that the accident took place on account of the negligence of the victim himself. 3. Before the tribunal, the claimants produced and marked Exts.A1 to A8. They also examined PW1, the Establishment Officer of Material Organisation, Kochi where the victim was employed, for the purpose of proving his avocation and income. On the side of the respondents, apart from producing Ext.B1, a copy of the policy of insurance, no other evidence was adduced. After considering the rival contentions and the materials on record, the tribunal held relying on the police records that the accident took place on account of the negligence of the owner-cum-driver of the motor car. The tribunal also held that Sunil, the predecessor-in-interest of the claimants died as a result of the injuries which he sustained in that accident. The tribunal thereafter proceeded to award the aggregate sum of Rs.32,56,472/- as compensation as detailed below: |MACA 492/2016|3| |---|---| |Loss of dependency|- Rs.27,05,472/-| |Loss of estate|- Rs. 15,000/-| |Expenses for transport|- Rs. 5,000/-| |Damage to clothes|- Rs. 1,000/-| |Funeral expenses|- Rs. 25,000/-| |Pain and suffering|- Rs. 5,000/-| |Love and affection|- Rs. 4,00,000/-| |Loss of consortium|- Rs. 1,00,000/-| ||------------------| |Total|- Rs.32,56,472/-| ||==========| In view of the fact that the second respondent had not pleaded or proved breach of policy conditions, the second respondent was directed to satisfy the award. The insurer has, aggrieved by the quantum of compensation awarded by the tribunal, filed this appeal. 4. The main challenge in this appeal is to the award of the sum of Rs.4,00,000/- as compensation under the head of loss of love and affection, apart from the award of the sum of Rs.1,00,000/- under the head loss of consortium to the wife of the victim. It is contended that the amount awarded towards compensation for loss of love and affection is excessive and exorbitant. The appellant also challenges the award of compensation under the head loss of dependency. 5. It has come out in evidence that the victim was employed as a Ship Wright at Naval Base, Kochi. It has also come out in evidence MACA 492/2016 4 that he was drawing a monthly salary of Rs.16,517/-. The testimony tendered by PW1, the Establishment Officer of the Organisation where the victim was employed and Ext.A7 salary certificate establish the said fact. It was having regard to the aforesaid evidence, the tribunal awarded the sum of Rs.27,05,472/- as compensation under the head loss of dependency, after taking into account future prospects as well. Having regard to the age of the victim (43 years) and the fact that he could have continued in service upto the age of 60 years, the multiplier applied, viz. 14 cannot be said to be on the higher side. The computation of compensation payable under the head loss of dependency is in tune with the principles laid down by the Apex Court in the decision reported in **Rajesh v.Rajbir Singh** (2013 (3) KLT 89). We therefore find no merit in the challenge to the award of compensation under the head loss of dependency. 6. The only other ground raised before us is as regards the award of the sum of Rs.4,00,000/- as compensation under the head loss of love and affection. The impugned award discloses that besides the sum of Rs.1,00,000/- as compensation for loss of consortium, the tribunal has awarded the sum of Rs.1,00,000/- each to all the four claimants under the head loss of love and affection. A Division Bench of this court has in **Jyni and others v. Raphel P.T. and others** (ILR 2016 (2) Ker. 54) held that in the light of the law laid down by the MACA 492/2016 5 Apex Court in **Rajesh's case** (supra), the amount of compensation that can be awarded under the head loss of love and affection can only be Rs.1,00,000/-. Though it was contended before us that the claimants are therefore entitled to the sum of Rs.1,00,000/- only under the head loss of love and affection, we find nothing in **Rajesh's case** (supra) which would indicate that the sum of Rs.1,00,000/would include the compensation payable to the parents of the victim under the head loss of love and affection. The award of the sum of Rs.1,00,000/- under the head loss of love and affection in **Rajesh's case** (supra) was to two minor children of the victim. The question whether the parents of the victim would be entitled to compensation under the head loss of love and affection even in cases where the sum of Rs.1,00,000/- is awarded as compensation to the children of the victim did not arise for consideration in that case. Such being the situation, we are of the opinion that the appellant is not justified in contending that the sum of Rs.3,00,000/- should be deducted from the amount awarded as compensation under the head loss of love and affection. The mother of the victim is even today alive. She was also residing along with the victim and the other claimants. The Apex Court has in **Amrit Bhanu Shali others v. National Insurance Company Ltd. and others** {(2012) 11SCC 738} awarded to the parents of a 27 year old bachelor the sum of Rs.50,000/- each as compensation under MACA 492/2016 6 the head loss of love and affection. We find nothing in **Rajesh's case** (supra) to the effect that where the victim has left behind minor children and his parents, the compensation payable under the head loss of love and affection has to be limited to Rs.1,00,000/-. In our opinion, it is for the court awarding compensation, to decide having regard to the fact situation arising in each case as to whether the amount of compensation to be awarded under the head loss of love and affection should be limited to Rs.1,00,000/- or having regard to the facts of the case anything in excess of the amount of Rs.1,00,000/- should be awarded. The victim had in the instant case left behind two minor boys aged 13 and 5 years respectively. They were deprived of the love and affection of their father and parental care and guidance at a very young age. The victim was also gainfully employed. He was earning a reasonably good income. His mother was also dependent on him. In such circumstances, we are of the opinion that in addition to the sum of Rs.1,00,000/- awarded as compensation for loss of love and affection to the minor children, the mother of the victim should also be compensated by awarding compensation under the head loss of love and affection. Having regard to the facts placed before us, we are of the opinion that a sum of Rs.50,000/- each can justifiably be awarded under the head loss of love and affection to the two children and the mother of the victim. MACA 492/2016 7 We accordingly, refix the compensation awarded to the appellants claimants under the head loss of love and affection, at Rs.1,50,000/-. 7. The impugned award discloses that the tribunal has awarded only the sum of Rs.5,000/- as compensation under the head pain and suffering. Taking cue from the decisions of the Apex Court wherein the Apex Court has awarded the sum of Rs.10,000/- as compensation under the head pain and suffering undergone by the victim, we deem it appropriate to award a further sum of Rs.5,000/- under that head. 8. We accordingly refix the compensation payable to the appellants as follows: Loss of dependency - Rs.27,05,472/Loss of estate - Rs. 15,000/Expenses for transport - Rs. 5,000/Damage to clothes - Rs. 1,000/Funeral expenses - Rs. 25,000/Pain and suffering - Rs. 10,000/Love and affection - Rs. 1,50,000/Loss of consortium - Rs. 1,00,000/-----------------Total - Rs.30,11,472/========== For the reasons stated above, allow the appeal in part and refix the compensation payable to the appellants as Rs.30,11,472/-. The second respondent insurer shall deposit the said amount together with MACA 492/2016 8 interest at 9% per annum from the date of petition till the date of deposit, within a period of three months from today. Upon such deposit being made, the amount deposited shall be disbursed/deposited in the manner directed by the tribunal. No costs. ## **(P.N. Ravindran, Judge)** ## **(A. Muhamed Mustaque, Judge)** ## **kav/**