New India Assurance Company Limited v. Sivadasan Pillai and Savithri Amma

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 30[TH] DAY OF JULY 2021 / 8TH SRAVANA, 1943** **MACA NO. 176 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1239/2010 OF ADDITIONAL MOTOR** **ACCIDENTS CLAIMS TRIBUNAL-II, MAVELIKARA,** ## **APPELLANT/3RD RESPONDENT:** THE NEW INDIA ASSURANCE COMPANY LIMITED, CHENGANNUR NOW REPRESENTED BY ITS MANAGER,REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENTS/PETITIONERS:** 1 SIVADASAN PILLAI, S/O.NARAYANA PILLAI, SAVITHA BHAVANAM,EDAPPON MURI, NOORANADU VILLAGE, VIA KAYAMKULAM,PIN 690 504. 2 SAVITHRI AMMA, W/O.SIVADASAN PILLAI, SAVITHA BHAVANAM,EDAPPON MURI,NOORANADU VILLAGE, VIA KAYAMKULAM,PIN 690 504. BY ADV JAWAHAR JOSE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 176 OF 2018 2** ## **JUDGMENT** The appellant – insurer was the 3[rd] respondent in OP(MV) No.1239 of 2010 on the file of the Additional Motor Accidents Claims Tribunal-II, Mavelikkara. The respondents in the appeal were the petitioners before the Tribunal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of their minor daughter Aswathy (deceased), who was aged 9 years on the date of her death. The petitioners have averred that, on 9.9.2009, while the deceased along with her classmates were returning home through the Pandalam – Mavelikara public road, a tipper lorry bearing Reg.No.KL- ## **MACA NO. 176 OF 2018 3** 4S-9746 driven in a rash and negligent manner ran over the children. The respondents 1 to 3 before the Tribunal were the driver, owner and insurer of the tipper lorry. The petitioners claimed a total compensation of Rs.7,00,000/- 3. The 1[st] respondent did not contest the proceedings. The 2[nd] respondent filed a written statement denying negligence on the part of the 1st respondent, but attributed negligence on the part of the children. Nevertheless, it was contended that the lorry had a valid insurance coverage with the 3[rd] respondent. 4. The 3[rd] respondent filed a written statement admitting that the lorry had a valid insurance coverage. The 3[rd] respondent re-iterated the same contentions as that of the 2[nd] respondent, that it was due to the negligence of the children that the accident was caused. ## **MACA NO. 176 OF 2018 4** Hence, it was prayed that the claim petition be dismissed. 5. The parents and siblings of two other children, who lost their lives in the same accident, filed OP(MV) Nos.1290 of 2010 and 1421 of 2010, and a child who got injured in the accident filed OP(MV) No.1289 of 2010 before the same Tribunal. 6. The Tribunal consolidated and jointly tried all the original petitions. The petitioners produced and marked Exts.A1 to A22 in evidence in all the cases. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by its common award allowed all the claim petitions. In the captioned case, the Tribunal permitted the petitioners to realise from the 3[rd] respondent an amount of Rs.7,31,060/- with interest @ 9% per annum from the date of petition till the date of ## **MACA NO. 176 OF 2018 5** deposit and a cost of Rs.10,000/- . 8. Aggrieved by the impugned award, the insurer is in appeal. 9. Heard, Sri. Mathews Jacob, the learned Senior Counsel appearing for the appellant/3[rd] respondent and Sri. Jawahar Jose, the learned counsel appearing for the respondents/petitioners. 10. Sri. Mathews Jacob argued that the compensation awarded by the Tribunal is on the higher side. The Hon'ble Supreme Court has in a recent decision in _**Rajendra Singh and Others v. National Insurance Company Ltd.,and Others [(2020) 7 SCC**_ _**256)]**_ held that the notional income of minor children has to be fixed at Rs.36,000/- per annum and one half of the compensation has to be deducted towards the personal living expenses of such deceased children and the **MACA NO. 176 OF 2018 6** multiplier has to be fixed at '15'. In light of the parameters laid down in the said decision, the quantum of compensation awarded is on the higher side. Similarly, the Tribunal has awarded higher compensation under the conventional heads than what is permitted in _**National Insurance Company v. Pranay Sethi [(2017) 16 SCC 680].**_ It was also contended that the rate of interest fixed the Tribunal at 9% was by exorbitant and not in line with the decision of the Hon'ble Supreme Court in _**T.N.State Transport Corporation**_ . _**Ltd., v. S. Rajapriya and others [(2005) 6 SCC 236]**_ He hence submitted that the compensation may be reduced in consonance with the law laid down in the aforecited decisions. 11. Sri.Jawahar Jose, the learned counsel appearing for the respondents vehementally countered the **MACA NO. 176 OF 2018 7** arguments of the learned Senior Counsel by placing reliance on the decision of this Court in _**National Insurance Company Ltd., v. K.K.Assainar and others [(2019) KHC 685],**_ wherein this Court, after taking into account the cleavage of opinion by the Hon'ble Supreme Court and different High Courts in the matter of fixing the notional income of minor children, has succinctly laid down an uniform guideline to be adopted by the Tribunals and Courts while fixing the notional income of minor children. The said view has been reiterated by another learned single judge of this Court in _**Ali and another v. Abdul Jabbar and another (2020 SCC online Kerala 5539)**_ . 12. The learned counsel relying on _**Ali**_ (supra) argued that the observations made by the Hon'ble Supreme Court in **Rajendra Singh** (supra) and _**Kishan**_ **MACA NO. 176 OF 2018 8** _**Gopal and another v. Lala and others [(2013) KHC 4667 SC]**_ are rendered under the peculiar facts and circumstances of those cases, and are not authoritative precedents to be followed in each and every case. He relied on _**State of Punjab v. Rafeeq Masih [(2014) 8 SCC 883]**_ wherein the Hon'ble Supreme Court has observed that directions issued under Article 142 of the Constitution of India do not constitute a binding precedent unlike directions passed under Article 141 of the Constitution of India. Hence, it was contended that the law laid down in _**Assainar**_ and _**Ali**_ (supra) govern the field so far as the fixation of a notional income of minor children is concerned. 13. The short question that arises for consideration in this appeal is whether the fixation of notional income and consequential awarding of compensation is **MACA NO. 176 OF 2018 9** reasonable and just ? 14. The Tribunal following the ratio _decidendi_ in _**New India Assurance Company Ltd., v. Vijayan and Others (2016 (1) KHC 575**_ ) fixed the notional income of the deceased child at Rs.4,000/- per month, but deducted 1/3[rd] of the income towards the personal living expenses of the child. The said view was taken by the Tribunal before the authoritative pronouncement in **Assainar** and **Ali** (supra) 15. _**Assaina**_ r was pronounced by this Court due to the cleavage of opinion and divergent views taken by different Tribunals and Courts across the Country, which has led to a state of confusion as to the parameter to be followed while fixing the notional income of children. We seen that in certain cases an amount of Rs.3,000/- is taken with the multiplier at '15', and in certain cases it is **MACA NO. 176 OF 2018 10** observed that 1/3[rd] has to be deducted towards personal living expenses. Judicial discipline and consistency are hallmarks in the justice delivery system. In order to infuse uniformity and consistency this Court laid down normative guidelines to be adopted by Tribunals and Courts in the above regard. I am in complete argument with the notional income fixed in the ready reckoner in paragraph 18 of _**Assainar**_ (supra) fixing the notional income for the years 1995-1996 to 2018-2019 and thereafter. I do hereby concur with the above fixation. 16. In the present case, since the accident occurred in the year 2009-2010, as per the ready reckoner an amount of Rs.54,000/- has to be fixed as the notional income of the deceased, the multiplier to be adopted is '15', and 1/3[rd] of the amount has to be deducted towards personal living expenses, with no amount towards future ## **MACA NO. 176 OF 2018 11** prospects. 17. Following the bench mark in _**Assainar**_ , I hold that the respondents/petitioners are only entitled to an amount of Rs.5,40,000/- i.e.,(54,000 x 15 – 1/3[rd] ) as compensation towards loss of dependency of the deceased. 18. In addition to the above amount, following the direction in Clause (viii) of paragraph 61 of _**Pranay Sethi**_ (supra), I hold that the respondents/petitioners are also entitled to compensation under the conventional heads, namely, Rs.30,000/- as compensation under the heads 'loss of estate' and 'funeral expenses' and Rs.80,000/- towards filial consortium. ## **Compensation towards love and affection** 19. This Court in. _**Kunjandy.L and others v. Rajendran and others (2020(2) KLT 315)**_ has held **MACA NO. 176 OF 2018 12** that once compensation is awarded under the head 'loss of consortium', no compensation can be awarded under the head 'loss of love and affection', as it would amount to overlapping of compensation. Therefore, I set aside the amount of Rs.2,00,000/- awarded under the head 'loss of love and affection'. ## **Compensation towards pain and sufferings** 20. In _**United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and others (2020 (3) KHC 760)**_ the Hon'ble Supreme Court has held that the dependents of the deceased are not entitled for compensation under the head 'pain and sufferings'. In view of the said ratio, I set aside the amount of 10,000/awarded by the Tribunal under the said head. 21. The compensation awarded for transportation expenses and damage to clothing are found to be ## **MACA NO. 176 OF 2018 13** reasonable and just. 22. On a comprehensive re-appreciation of the pleadings and materials on record and the law laid down in the aforecited decisions, I hold that the compensation awarded by the Tribunal in the impugned award is on the higher side and has to be modified and reduced as held above and given in the table below for easy reference. |Head of claim|Amount<br>Awarded by<br>the Tribunal<br>(in Rs.)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---| |Funeral expenses|25,000/-|15,000/-| |Transportation<br>expenses|5,000/-|5,000/-| |Damage to clothing|1,000/-|1,000/-| |Pain and sufferings|10,000/-|-| |Love and affection|2,00,000/-|-| ## **MACA NO. 176 OF 2018 14** |Loss of estate|10,000/-|15,000/-| |---|---|---| |Loss of consortium|-|80,000/-| |Loss<br>due<br>to<br>dependency|4,80,060/-|5,40,000/-| |Total|7,31,060/-|6,56,000/-| 23. The Tribunal has awarded interest @ of 9% per annum. In light of the law laid down in _**T.N.Tranport Corporation**_ **Ltd** . _(supra)_ , I hold that the respondents/petitioners are only entitled to interest @ 7.5% per annum on the compensation amount. In the result, the appeal is allowed, by holding that the respondents/petitioners are only entitled to an amount of Rs.6,56,000/- instead of Rs.7,31,060/- awarded by the Tribunal with interest on it at 7.5% per annum. Accordingly, I direct the appellant/3[rd] respondent to pay the respondents/petitioners an amount of Rs.6,56,000/- **MACA NO. 176 OF 2018 15** with interest at the rate of Rs.7.5 % per annum from the date of petition till the date of deposit and proportionate costs. The appellant/3[rd] respondent shall deposit the compensation amount with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the compensation amount in equal shares to the respondents/petitioners and in accordance with law. sd/- **C.S.DIAS, JUDGE** pm