National Insurance Company Ltd. v. Beena and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940** ## **MACA.No. 726 of 2009** **AGAINST THE AWARD IN OPMV 507/2005 of MACT VADAKARA DATED 05-112008** ## **APPELLANT/S:** **NATIONAL INSURANCE COMPANY LTD.** **BRANCH OFFICE, NO.II, MARUTHI COMPLED, OMALUR MILL ROAD, POST SELAM -4 PIN 636 004, TAMIL NADU.** ## **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENT/S:** |**1**|**BEENA,**| |---|---| ||**W/O.LATE ANIL KUMAR, RESIDING AT KANNU VAYAL, KUNIYIL**| ||**HOUSE, POST MADAPPALLY, COLLEGE, PIN 673 102,**| ||**URALUNGAL AMSOM DESOM, VADAKARA TALUK.**| |**2**|**AMALJITH K.K.,**| ||**S/O. LATE ANIL KUMAR (MINOR) DOB 03.01.1994).**| |**3**|**ANAMIKA P.M.,**| ||**D/O. LATE ANIL KUMAR, (MINOR) (DOB 02-02-2001) (MINOR**| ||**RESPONDENTS TWO AND THREE REPRESENTED BY THEIR**| ||**NATURAL GUARDIAN AND MOTHER, BEENA THE FIRST**| ||**RESPONDENT HEREIN RESIDING AT, KANNU VAYAL, KUNIYIL**| ||**HOUSE, POST MADAPPALLY COLLEGE, PIN 673102, URALUNGAL**| ||**AMSOM DESOM, VADAKARA TALUK.**| |**4**|**R. RAMAMOORTHY,**| ||**DOOR NO. 12.242-230 PRIYA COLONY, GUDIMALKAPUR POST,**| ||**HYDERABAD PIN 500 001, ANDHRA PRADESH. (DELETED)**| ||**-----------------------------------------------------**| ||**-------------**| ||**RESPONDENT NO. 4 IS DELETED FROM THE PARTY ARRAY AT**| ||**THE RISK OF APPELLANT VIDE ORDER DATED 08.01.2014 IN**| ||**I.A.NO.29/2014 IN MACA 726/2009.**| MACA.726/08 2 **5 JANU, W/O. NANU, RESIDING AT KALATHUM THAZHA, KUNHIYIL HOUSE, KOLE BAZAR, URALUNGAL AMSOM DESOM, POST, MADAPPALLY COLLEGE, PIN 673 102, VADAKARA TALUK. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR** ## **SMT K P SANTHI SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.726/08 3 ## **JUDGMENT** The appeal is by the Insurance Company seeking interference to the Award of the Tribunal insofar as the compensation having been granted for the head “loss of love and affection”, which is not available under the second schedule of the Motor Vehicles Act, especially, when the claim is under Section 163A. 2. The learned counsel for the respondents, however, has a contention that for funeral expenses, loss of estate and loss of consortium, the respondent has been granted only Rs.2,000/-, Rs.5,000/- and Rs.2,500/-, respectively. In fact, the respondents are entitled to Rs.15,000/- for loss of estate, Rs.40,000/- for loss of consortium and Rs.15,000/- for funeral expenses. Hence there need be no deduction made on the count of loss of love and affection since this Court is considering the just compensation that is payable to the legal heirs of the deceased. 3. The learned counsel for the respondents-claimants MACA.726/08 4 specifically points to the decision in **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (16) SCC 680]** , wherein it was held that right from the decision in **U.P. State Road Transport Corporation v. Trilok Chandra [1996** **(2) KLT 218 (SC)]** the second schedule has been used only as a guide and not as an absolute Rule. The learned Standing Counsel appearing for the Insurance Company, however, submits that the decision in **Trilok Chandra** considered only the multiplicand applicable as per the second schedule and pointed out certain anomalies in computation of the total compensation, which led to the finding that the second schedule does not lay down an absolute rule. This does not, however, result in any interference to the general damages payable, is the contention. 4. Looking at the consideration made in **Pranay Sethi,** a Constitution Bench decision, this Court is unable to arrive at such a finding. Paragraphs 46 to 52 of **Pranay Sethi** is extracted hereunder: **46.** Another aspect which has created confusion pertains to grant of loss of estate, loss of consortium and funeral expenses. In _Santosh Devi_[20] ~~,~~ the two-Judge Bench followed the traditional method and granted Rs 5000 for transportation of the body, Rs 10,000 as funeral expenses and Rs 10,000 as regards the loss of consortium. In _Sarla Verma_[4] ~~,~~ the Court granted Rs 5000 under the head of loss of estate, Rs 5000 towards funeral expenses and Rs 10,000 towards loss of consortium. In _Rajesh_[2] ~~,~~ the Court granted Rs 1,00,000 towards loss of MACA.726/08 5 consortium and Rs 25,000 towards funeral expenses. It also granted Rs 1,00,000 towards loss of care and guidance for minor children. The Court enhanced the same on the principle that a formula framed to achieve uniformity and consistency on a socio-economic issue has to be contrasted from a legal principle and ought to be periodically revisited as has been held in _Santosh Devi_[20] ~~.~~ On the principle of revisit, it fixed different amount on conventional heads. What weighed with the Court is factum of inflation and the price index. It has also been moved by the concept of loss of consortium. We are inclined to think so, for what it states in that regard. We quote: ( _Rajesh case_[2] ~~,~~ SCC p. 63, para 17) “ _17_ . … In legal parlance, “consortium” is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That nonpecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse’s affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.” **48.** This aspect needs to be clarified and appositely stated. The conventional sum has been provided in the Second Schedule to the Act. The said Schedule has been found to be defective as stated by the Court in _Trilok Chandra_[11] ~~.~~ Recently, in _Puttamma_ v. _K.L. Narayana Reddy_[48] it has been reiterated by stating: (SCC p. 80, para 54) “ _54_ . … we hold that the Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy.” **49.** As far as multiplier or multiplicand is concerned, the same has been put to rest by the judgments of this Court. Para 3 of the Second Schedule also provides for general damages in case of death. It is as MACA.726/08 6 follows: “ **3.** General damages (in case of death): The following general damages shall be payable in addition to compensation outlined above: _(i)_ Funeral expensesRs 2000 _(ii)_ Loss of consortium, if beneficiary is the spouse Rs 5000 _(iii)_ Loss of estate Rs 2500 _(iv)_ Medical expenses — actual expenses incurred before death supported by bills/vouchers but not exceeding Rs 15,000” **50.** On a perusal of various decisions of this Court, it is manifest that the Second Schedule has not been followed starting from the decision in _Trilok Chandra_[11] and there has been no amendment to the same. The conventional damage amount needs to be appositely determined. As we notice, in different cases different amounts have been granted. A sum of Rs 1,00,000 was granted towards consortium in _Rajesh_[2] ~~.~~ The justification for grant of consortium, as we find from _Rajesh_[2] ~~,~~ is founded on the observation as we have reproduced hereinbefore. **51.** On the aforesaid basis, the Court has revisited the practice of awarding compensation under conventional heads. **52.** As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in _Rajesh_[2] ~~.~~ It has granted Rs 25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though _Rajesh_[2] refers to _Santosh Devi_[20] ~~,~~ it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that 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 principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or MACA.726/08 7 quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads. 5. The Constitution Bench of the Hon'ble Supreme Court found that insofar as the multiplicand is concerned, the issues have been settled by various decisions. **Trilok Chandra,** as also **Puttamma and Others v. K.L.Narayana Reddy [2013 (15) SCC 45]** found the second schedule as enacted in 1994 to be redundant, irrational and unworkable due to the changed scenario. Then their Lordships noticed paragraph 3 of the second schedule providing for general damages in case of death. Following **Trilok Chandra** and the fact that the second schedule has not been amended despite various observations made by the Hon'ble Supreme Court, the Constitution Bench looked at the conventional damages which were to be determined. It is on this basis that in paragraph 52 it was found that under the conventional heads of loss of estate, loss of consortium and funeral expenses, the compensation should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/-, respectively. Considering the declaration so made by the Constitution Bench this Court does not find any reason to interfere with the Award. Though Rs.15,000/- has been granted under loss MACA.726/08 8 of love and affection, the said amount, even if spread over the conventional heads of funeral expenses, loss of consortium and loss of estate, would be inadequate as per the Constitution Bench decision. Considering the fact that the claimants have not filed an appeal, this Court would not grant any further enhancement on the compensation. But there is no cause for reduction and hence the appeal would stand dismissed; without any order as to costs. **Sd/-** **K.VINOD CHANDRAN,** **Judge** okb. //True copy// P.A. to Judge