Omana Antony and Others v. National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** ## **M.A.C.A.No. 2999 of 2018** **AGAINST THE AWARD IN OPMV 1569/2015 of MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA DATED 26-06-2018** ## **APPELLANTS/PETITIONERS:** **1 OMANA ANTONY AGED 62 YEARS W/O LATE ANTO @ ANTONY, PAZHAYI HOUSE, PARIYARAM DESOM, VILLAGE AND PO, CHALAKKUDY TALUK, THRISSUR DISTRICT** **2 JOFFY ANTO, S/O LATE ANTO @ ANTONY , AGED 40 YEARS, PAZHAYI HOUSE, PARIYARAM DESOM, VILLAGE AND PO, CHALAKKUDY TALUK, THRISSUR DISTRICT 3 ANFY ANTU, AGED 38 YEARS D/O LATE ANTO @ ANTONY, PAZHAYI HOUSE, PARIYARAM DESOM, VILLAGE AND PO, CHALAKKUDY TALUK, THRISSUR DISTRICT** **4 BIFFY JOJO, W/O JOJO, D/O LATE ANTO @ ANTONY, AGED 35 YEARS, KANNAMKUNNI HOUSE, KALLETTUMKARA P.O., CHALAKUDY TALUK, THRISSUR DISTRICT** ## **BY ADV. SRI.A.N.SANTHOSH** ## **RESPONDENTS/3RD RESPONDENT:** **NATIONAL INSURANCE COMPANY LIMITED 2ND FLOOR, DAMODAR CHAMBERS, STATUE JUNCTION, THRIPUNITHURA, ERNAKULAM 682 301** **BY ADV. SRI.R.AJITH KUMAR (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 2999 of 2018** **2** ## **JUDGMENT** This appeal is preferred against the award in OP(MV)No.1569 of 2015 of the Motor Accidents Claims Tribunal, Irinjalakuda by the legal representatives of the deceased. One Antony sustained injuries in a motor accident and he died. The legal representatives of the deceased preferred the above claim petition under Section 166 of the Motor Vehicles Act 1988. The Motor accidents Claims Tribunal awarded Rs.3,39,000/- as compensation. Being aggrieved by that, the injured preferred this appeal. 2. It would be relevant and useful to mention the facts leading to this accident. On 17-11-2015 at 10.30.am, the deceased was riding a scooter KL-08-AP-6994 through Pariyaram-Chalakudy road, when he reached at the place of occurrence, another car KL-07-BZ-6402 driven in a rash and negligent manner hit against the scooter. As a result, he sustained serious injuries, while undergoing treatment he died at Amala Medical College Hospital, on 25-11-2015. The driver and owner contested the matter in the lower court. The insurer admitted the insurance of the vehicle. The claimants **M.A.C.A.No. 2999 of 2018** **3** did not adduce any oral evidence, but their documents were marked as Ext.A1 to A13. 3. The deceased was aged 66 years at the time of the accident. He was a business man and was getting Rs.25,000/per month. But no evidence has been produced in the lower court to prove the income. In the absence of such evidence, the learned Tribunal took Rs.6,000/- as the monthly income for calculating disability compensation. 4. In death case, the measure of damage is towards the pecuniary losses, which is to be suffered by the dependents as a result of the fatal accident. 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 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 **M.A.C.A.No. 2999 of 2018** **4** 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. ## 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_ **M.A.C.A.No. 2999 of 2018** **5** _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. The legal representatives are entitled to get just amount as compensation. The deceased was above 60 years no further increase in view of _**Pranay Sethi (supra)**_ is not necessary in this case, therefore the Tribunal took Rs.6,000/as the monthly income. There are four legal representatives, the dependency compensation is Rs.6,000x5x12 and 1/4th amount is to be deducted, then the amount is Rs.2,70,000/-. **M.A.C.A.No. 2999 of 2018** **6** The learned Tribunal awarded Rs.1,80,000/- and the balance amount is Rs.90,000/-. 7. 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 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_ **M.A.C.A.No. 2999 of 2018** **7** _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 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_ **M.A.C.A.No. 2999 of 2018** **8** _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 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)._ Appellants are entitled to get Rs.2,00,000/- towards love and affection and Rs.1,60,000/- towards consortium. The learned Tribunal awarded Rs.40,000/- towards loss of consortium and the balance amount is Rs.1,20,000/-. The Tribunal awarded Rs.10,000/- towards mental agony, that amount is to be set aside. Therefore appellants are entitled to get an enhanced compensation of Rs.4,00,000/- (Rupees Four Lakhs only) with 9% interest and proportionate cost in addition to the award **M.A.C.A.No. 2999 of 2018** **9** amount. The insurer is directed to satisfy the award amount 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. This appeal is disposed of, as above. Sd/- **P.D.RAJAN** nak **JUDGE**