National Insurance Company Limited v. Thankamani and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940** **M.A.C.A.No. 713 of 2018** **AGAINST THE AWARD IN OPMV 226/2014 of MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD DATED 18-02-2017** ## **APPELLANT/3RD RESPONDENT INO.P(M.V) NO.226 OF 2014:** **NATIONAL INSURANCE COMPANY LIMITED AMBIKA ARCADE, M. G. ROAD, THRISSUR, PIN-680001, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M. G. ROAD, ERNAKULAM.** ## **BY ADV. SRI.LAL GEORGE** ## **RESPONDENTW/RESPONDENTS 1 TO 4 IN O.P.(M.V)NO.226 OF 2014:** **1 THANKAMANI AGED 44 YEARS, W/O. LATE RAMAN, VANIYAMPARAMBU, THENKURUSSI (PO), ALATHUR, PALAKKAD DISTRICT, PIN678671.** **2 RESHMA R. AGED 23 YEARS, D/O. LATE RAMAN, VANIYAMPARAMBU, THENKURUSSI (PO), ALATHUR, PALAKKAD DISTRICT, PIN678671.** **3 RAJESH R. AGED 22 YEARS, S/O. RAMAN, VANIYAMPARAMBU, THENKURUSSI (PO), ALATHUR, PALAKKAD DISTRICT, PIN678671.** - **4 DHANYA R. (DOB 29.12.1999), AGED 18 YEARS, D/O. RAMAN,** **VANIYAMPARAMBU, THENKURUSSI (PO), ALATHUR, PALAKKAD DISTRICT, PIN-678671.** ## **BY ADV. SRI.BINOY VASUDEVAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.713 of 2018 & MACA.No.423 of 2019** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940** **M.A.C.A.No. 423 of 2019** **AGAINST THE AWARD IN OPMV 226/2014 of MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD DATED 18-02-2017** ## **APPELLANTS/PETITIONERS:** |**1**|**THANKAMANI**| |---|---| ||**AGED 45 YEARS**| ||**W/O. RAMAN, VANIYAMPARAMBU, THENKURUSSI P.O,**| ||**ALATHUR, PALAKKAD 678 671**| |**2**|**RESHMA R**| ||**AGED 24 YEARS**| ||**D/O. RAMAN, VANIYAMPARAMBU, THENKURUSSI P.O,**| ||**ALATHUR, PALAKKAD 678 671**| |**3**|**RAJESH R,**| ||**AGED 23 YEARS**| ||**S/O. RAMAN, VANIYAMPARAMBU, THENKURUSSI P.O,**| ||**ALATHUR, PALAKKAD 678 671**| |**4**|**DHANYA R,**| ||**AGED 20 YEARS**| ||**D/O. RAMAN, VANIYAMPARAMBU, THENKURUSSI P.O,**| ||**ALATHUR, PALAKKAD 678 671**| ## **BY ADV. SRI.BINOY VASUDEVAN** ## **RESPONDENT/3RD RESPONDENT:** **NATIONAL INSURANCE COMPANY LTD. AMBIKA ARCADE, M.G ROAD, THRISSUR 680 001 HAVING OFFICE AT 3RD FLOOR, KANOOS BUILDING, EAST FORT COMPLEX, FORT MAIDAN, KUNNATHURMEDU P.O, PALAKKAD.** **BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.713 of 2018 & MACA.No.423 of 2019** **3** ## **JUDGMENT** These appeals are preferred against the award in OP(MV)No.226 of 2014 of the Motor Accidents Claims Tribunal, Palakkad. The above claim petition was preferred by the legal representatives of the deceased Raman under Section 166 of the Motor Vehicles Act 1988 and the Motor Accidents Claims Tribunal awarded compensation of Rs.19,08,000/- and directed the insurer to pay the compensation. Being aggrieved by that, the insurer preferred M.A.C.A.No.713 of 2018 and the legal representatives of the deceased preferred M.A.C.A.No.423 of 2019. 2. It would be relevant and useful to mention the facts leading to this accident. On 27.12.2013 the deceased Raman was riding his bicycle from Palakkad to Kannajur, when he reached near High School at Kannadi, the vehicle KL-08-AB462 driven in a rash and negligent manner hit against the bicycle. As a result, he was thrown away and sustained serious injuries. While undergoing treatment he succumbed to the injuries. The driver and owner filed written statement and contested the matter in the lower court. The insurer admitted **MACA.No.713 of 2018 & MACA.No.423 of 2019** **4** the insurance of the vehicle. Claimants did not adduce any oral evidence, but their documents were marked as Ext.A1 to A14. The copy of the policy was marked as Ext.B1. 3. Appellants in M.A.C.A.No.423 of 2019 are the legal representatives of the deceased. They contended that the deceased Raman was aged 45 years at the time of accident, who was working as a security guard and was getting Rs.10,000/- per month, the Motor Accidents Claims Tribunal admitted the income and occupation. The first petitioner Thankamani is his wife. Second petitioner Reshma third petitioner Rajesh and fourth petitioner Dhanya are the children of the deceased. They contended that after the death of the deceased the entire family fell in to great agony and misery. Just amount was not awarded towards loss of consortium and love and affection. 4. The insurer preferred M.A.C.A.No.1713 of 2018 and contended that excess amount was awarded towards loss of dependency. The deceased was aged 45 years and working in a private firm. In view of _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)]**_ 25% has to be added towards future prospects. The Motor Accidents Claims **MACA.No.713 of 2018 & MACA.No.423 of 2019** **5** Tribunal added 30% towards future prospects and 5% has to be deducted from that amount. Just amount was awarded towards consortium and love and affection and no interference on that head is necessary. 5. 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%. 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_ **MACA.No.713 of 2018 & MACA.No.423 of 2019** ## **6** _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._ 6. 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 dependents are the major factors. Secondly the amount that the deceased would have earned during the remaining period **MACA.No.713 of 2018 & MACA.No.423 of 2019** **7** 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. The deceased was working as a security guard and was getting Rs.10,000/- per month. He was aged 45 years at the time of death and the multiplier is 14. In view of _**National Insurance Company V. Pranay Sethi [2017 (4) KLT 662**_ _**(SC)]**_ 25% has to be added towards future prospects. There are four claimants in M.A.C.A.No.423 of 2019 and one fourth is to be deducted from the dependency. The dependency compensation is Rs.12,500x12x14x3/4=Rs.15,75,000/-. The learned Tribunal awarded 16,38,000/-. ie Rs.63,000/- has to be deducted from the dependency compensation. 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_ **MACA.No.713 of 2018 & MACA.No.423 of 2019** **8** _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 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_ **MACA.No.713 of 2018 & MACA.No.423 of 2019** **9** _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 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_ **MACA.No.713 of 2018 & MACA.No.423 of 2019** ## **10** _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 appellant in M.A.C.A.No.423 of 2019 is entitled to get just amount towards consortium and love and affection. The learned Tribunal awarded Rs.1,00,000/- towards consortium and Rs.1,00,000/- towards love and affection. In view of _**magma's case (supra)**_ appellants are entitled to get Rs.1,60,000/- towards loss of consortium and Rs.2,00,000/towards love and affection. Therefore, appellants are entitled to get Rs.60,000/- towards loss of consortium and Rs.1,00,000/- towards love and affection. The total amount on both heads comes to Rs.1,60,000/-. After deducting Rs.63,000/- from that amount and the balance amount is Rs.97,000/-. Therefore, appellants in M.A.C.A.No.423 of 2019 are entitled to get Rs.97,000/- (Rupees Ninety Seven Thousand only) as the enhanced compensation in addition to **MACA.No.713 of 2018 & MACA.No.423 of 2019** **11** the award amount. The insurer is directed to satisfy the enhanced compensation with 9% interest and proportionate cost within 30 days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. There is a delay 516 days in filing the appeal, the appellants are not entitled get interest for that delay period. In the circumstance, M.A.C.A.No.713 of 2018 and M.A.C.A.No.423 of 2019 are disposed of, as above. Sd/- **P.D.RAJAN,** nak **JUDGE**