National Insurance Company Limited v. Sudhakaran and Others (MACA No. 1224 of 2008)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944 MACA NO. 1224 OF 2008** **AGAINST THE AWARD DATED 21.8.2007 IN OPMV 1137/2002 OF I ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/R3:** NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE, KOLLAM, IRINJALAKUDA. BY ADV SRI.RAJAN P.KALIYATH ## **- RESPONDENTS/PETITIONERS 1 3 & RESPONDENTS 1 & 2:** 1 SUDHAKARAN, SUMERSH BHAVANAM, IVERKALA WEST, NORTH MURI, KUNNATHOOR VILLAGE. 2 VASANTHA -DO - -DO-. 3 SUDHEESH - DO - -DO-. 4 T.SASIDHARAN KUTTIKATUVILA VEEDU, MUKHATHALA POST, KUNDARA. 5 S.SUBRAMANIYAN SREELATHA MANDIRAM, KUREEPUZHA POST, PEINAD. BY ADVS. SRI.ANCHAL C.VIJAYAN SMT.MINI.S.DAS FOR R4 THIS M.A.C.A HAVING BEEN FINALLY HEARD ON 15.07.2022, ALONG WITH CO.31/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A.No.1224 OF 2008** 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944 CO NO. 31 OF 2013 IN MACA NO.1224 OF 2008 MACA - AGAINST THE AWARD DATED 21.8.2007 IN OPMV 1137/2002 OF I ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **CROSS OBJECTORS/R2 & R3 IN MACA/CLAIMANTS 2 & 3 IN OP:** 1 VASANTHA `W/O SUDHAKARAN, SUMESH BHAVANAM, IVERKALA WEST, NORTH MURI, KUNNATHOOR VILLAGE, KOLLAM DISTRICT 2 SUDHEESH S/O SUDHAKARAN, SUMESH BHAVANAM, IVERKALA WEST, NORTH MURI, KUNNATHOOR VILLAGE, KOLLAM DISTRICT BY ADV SRI.ANCHAL C.VIJAYAN ## **RESPONDENTS/APPELLANT & R4 & R5 IN MACA/RESPONDENTS IN THE** **OP:** 1 NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, KOLLAM, PIN 695001 2 THE SASIDHARAN KUTTUKKOTU VILA VEEDU, MUKHATHALA P.O, KOLLAM DISTRICT, PIN - 691577 3 S. SUBRAMANIAN S/O SIVANANDAN, SREELATHA MANDIRAM, KUREEPUZHA P.O, PERINADU, KOLLAM 691604 BY ADVS. SMT.MINI.S.DAS SRI.RAJAN P.KALIYATH FOR R1 THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 15.07.2022, ALONG WITH MACA.1224/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A.No.1224 OF 2008** 3 ## **JUDGMENT** The third respondent Insurance Company in OP(MV)No.1137/2002 of the Motor Accidents Claims Tribunal, Kollam is the appellant herein. The award dated 21.07.2007 is assailed by the appellant. A Cross Objection is preferred by the claimants seeking enhancement on various grounds. 2. Heard Sri.Rajan P. Kaliyath, learned counsel for the appellant and Sri Anjal C. Vijayan, learned counsel appearing for the petitioner in the Cross Objection. 3. Learned counsel for the appellant contended that the solitary ground which is canvassed in this appeal is with respect to the application of the multiplier, which has been reckoned by the Tribunal as 16, in respect of a minor below the age of 15 years. The correct multiplier ought to have been 15, as held in **Reshma Kumari v. Madan Mohan** [2013(2) KLT 304 (SC)]. 4. This issue can be straight away resolved as the same is not objected to by the learned counsel for the petitioner in Cross Objection. The correct multiplier to be applied is 15, as agreed to by the learned counsel and as held in **Reshma Kumari** (supra). Therefore, that part of the award which stipulates the multiplier of 16 has to be modified, by applying the multiplier of 15. **M.A.C.A.No.1224 OF 2008** 4 5. Regarding the Cross Objection, learned counsel for the claimant submitted that the Tribunal has reckoned Rs.2,000/- as the income of the deceased. It is pointed out that the accident occurred on 27.01.2001, when the deceased, a minor boy aged 14, who was driving a bicycle, was hit by a bus. The driver of the bus was not having any license, wherefore, the Tribunal directed the appellant insurance Company to pay the compensation amount, with a rider to recover the same from the owner of the vehicle. As regards the monthly income, learned counsel appearing for the petitioner in the Cross Objection submitted that a Bench judgment of this Court in **National Insurance Company v. Assainar** [2019 (4) KLT 39] contemplates an exhaustive table depending upon the year in which the death takes place. Accordingly, for the financial year 2001-2002, Rs.36,000/- is to be reckoned as the annual income. No judgment to the contrary has been produced by the learned counsel for the Insurance Company, wherefore, this Court is inclined to follow **Assainar** (supra) and Rs.36000/- is reckoned. Two-third of the same is liable to be reckoned as his income, after excluding one-third towards personal expenses, the multiplier being 15. **M.A.C.A.No.1224 OF 2008** 5 6. The next ground canvassed by the learned counsel for the petitioner in the Cross Objection is with respect to consortium. Learned counsel pointed out that the deceased, who was a minor, is survived by his parents and younger brother and Rs.40,000/- each is to be given as consortium. This submission was opposed by the learned counsel for the Insurance Company, pointing out that the brother of the deceased is not entitled to consortium. Learned counsel relied upon the judgment in **National Insurance Company Limited v. Pranay Sethi** [2017(4)KLT 662(SC)] in support. Having perused the judgment in **Pranay Sethi** (supra), this Court is satisfied that the parents alone are entitled to consortium and the brothers are not. Accordingly, Rs.40,000/- each is entitled to the parents towards consortium. Simultaneously, this Court has to observe Rs.20,000/- granted towards love and affection has to be excluded, while granting consortium. 7. The next ground is funeral expenses. Only Rs.5,000/- is given under that head. Going by **Pranay Sethi** (supra), the amount of compensation under the head 'funeral expenses' is Rs.15,000/- and the same is liable to be granted. Loss of estate has not been reckoned by the Tribunal and there, again, a sum of Rs.15,000/- is fixed in **Pranay Sethi** (supra), which is liable **M.A.C.A.No.1224 OF 2008** 6 to be granted. A sum of Rs.5,000/- is given under the head of pain and suffering, which going by the judgment in **Rajendra Singh v. National Insurance Company Limited** [2020 (4) KLT 6 (SC)], is to be obliterated in cases of death. 8. The final point to be adjudicated before parting with the judgment is the enhancement @ 10% to the conventional heads under consortium, funeral expenses and loss of estate, as directed in **Pranay Sethi** (supra). Learned counsel for the claimants (petitioners in the Cross Objection) contended that 10% hike to the amounts quantified under the conventional heads in every three years has been directed by the Constitution Bench in **Pranay Sethi** (supra), wherefore the claimants are entitled for the same. Learned counsel relied upon the judgment of a learned Single Judge of this Court in **Meera** v. **Ananda P.Naik [2022 (1) KLT 673]** in support of the same. In the said case, the learned Single Judge, in paragraph no.45, relied upon **N.Jayasree and Others** v. **Cholamandalam MS General Insurance Company Ltd. [AIR 2021 SC 5218]** and **Rasmita Biswal & Ors** v. **Divisional Manager, National Insurance Company Ltd. & Anr. [2022 (1) KLT 121 (SC)]** to hold that 10% escalation is to be granted reckoning the date of pronouncement of the **M.A.C.A.No.1224 OF 2008** 7 judgment and not for accidents that occur every three years after 31.10.2017, the date on which the judgment in **Pranay Sethi** (supra) was delivered. 9. This aspect was seriously disputed by the learned Standing Counsel for the Insurance Company, pointing out that the accident in the instant case occurred in the year 2002. The direction in paragraph no.54 of **Pranay Sethi** (supra) is only in the context of revisiting the amounts quantified under the heads consortium, funeral expenses and loss of estate. As a principle of such revisit, the Constitution Bench directed 10% enhancement under the said heads in a span of three years, whereby the Hon'ble Supreme Court only meant that, for accidents which occurred prior to 31.10.2017, the date of delivery of the judgment in **Pranay Sethi** (supra), the amounts quantified thereunder has to be applied; and for accidents, which occur after a span of three years should get 10% enhancements to the amounts quantified under the said heads. Learned counsel emphasised that the Constitution Bench decision in **Pranay Sethi** (supra) is to guide the Tribunals and the High Courts in future as well, which precisely is the reason for making a provision for revisiting the amounts quantified under the said heads, @ 10% in a span of every three years. **M.A.C.A.No.1224 OF 2008** 8 10. Having heard the learned counsel appearing on both sides, this Court is attracted to fall in line with the submissions of the learned counsel for the Insurance Company. The setting in which the enhancement of 10% has been provided for in **Pranay Sethi** (supra) is relevant to be considered. In **Pranay Sethi** (supra), the Hon'ble Supreme Court first quantified the amounts payable under the three heads afore referred, in paragraph no.54 of the judgment. Thereafter, the Hon'ble Supreme Court upholds the necessity to revisit the said quantification, but cautions that such revisit should not be factcentric or quantum-centric. Instead, the Hon'ble Supreme Court directed a revisit in the form of 10% enhancement to the amounts quantified, in a span of three years. This would persuade one to think that the enhancements will be operative only to accidents which happens three years after the date of pronouncement of the judgment in **Pranay Sethi** (supra), or for that matter, in every span of three years. Quantification in **Pranay Sethi** (supra) in respect of the said three heads should govern all pending matters is the initial impression gatherable. 11. However, there is no room for any interpretation of the direction in paragraph no.54 of **Pranay Sethi** (supra), inasmuch as the Hon'ble Supreme Court had already **M.A.C.A.No.1224 OF 2008** 9 undertaken that exercise in **N.Jayasree** (supra), after quoting the direction for enhancement @ 10% in **Pranay Sethi** (supra). Paragraph nos.32 and 33 of the judgment in **N.Jayasree** (supra) are relevant. The judgment in **N.Jayasree** (supra) was delivered on 25.10.2021 and the Hon'ble Supreme Court in paragraph no.33 specifically took note of the fact that the judgment in **Pranay Sethi** (supra) was rendered in the year 2017, wherefore, the claimants are entitled to 10% enhancement. The same is the situation with respect to the judgment of the Hon'ble Supreme Court in **Rasmita Biswal** (supra), where the relevant discussion is at paragraph no.16 of the judgment. This Court therefore finds that the claimants (petitioners in the Cross Objection) are entitled to 10% enhancement under the conventional heads, namely consortium and loss of estate. Enhancement towards funeral expenses is refused, that being an expenditure already incurred years before. 12. In the result, the M.A.C.A., as well as the Cross Objection, both are allowed. By allowing M.A.C.A., the multiplier of 15 is directed to be applied and by allowing the Cross Objection, the compensation payable to the claimants is enhanced as indicated in the table herein: **M.A.C.A.No.1224 OF 2008** 10 |Sl.<br>No.|Head of Claim|Amount awarded<br>by the Tribunal<br>(Rs.)|Total amount<br>after<br>enhancement<br>in appeal<br>(Rs.)| |---|---|---|---| |1|Transportation to<br>hospital|1000|1000| |2|Damage to cloth|500|500| |3|Funeral expenses|5000|15000| |4|Compensation for pain and<br>suffering|5000|Nil| |5|Compensation for love and<br>affection|20000|Nil| |6|Compensation for loss of<br>dependency|256128<br>(1334x12x16)|360000*| |7|Compensation for loss of<br>Consortium|nil|88000<br>(80000+8000)| |8|Compensation for loss of<br>estate|nil|16500<br>(15000+1500)| ||Total|2,87,628|4,81,000| ||Amount enhanced =Rs.1,93,372/-(4,81,000-2,87,628)||| *(36,000x(2/3)x15) 13. The Insurance Company shall pay interest for the amount awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amounts at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made **M.A.C.A.No.1224 OF 2008** 11 clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The direction with respect to the recovery of the amount payable from the owner is retained as sought. Sd/- **C. JAYACHANDRAN** **JUDGE** AJ