Royal Sundaram Alliance Insurance Co. Ltd. v. Sreekala K., Harikrishnan and Vinayak S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 15TH DAY OF JULY 2020 / 24TH ASHADHA, 1942** ## **MACA.No.2806 OF 2015(E)** **AGAINST THE AWARD IN OP(MV).277/2008 DATED 19-01-2015 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-II, PATHANAMTHITTA** ## **APPELLANT/ 3RD RESPONDENT:** **ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, CHENNAI, NOW REPRESENTED BY THEIR ZONAL HEAD, SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHEENAI - 600 002.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/ PETITIONERS 1 TO 3:** **1 SREEKALA K., W/O. LATE SANIL KUMAR, NARAYANI NILAYAM (SREEHARI), ATMAV JUNCTION, PULLAD P.O., VIA KOZHENCHERRY - 689 320. 2 HARIKRISHNAN, S/O. LATE SANIL KUMAR, NARAYANI NILAYAM (SREEHARI), ATMAV JUNCTION, PULLAD P.O., VIA KOZHENCHEERY - 689 320.** **3 VINAYAK S., S/O. LATE SANIL KUMAR, NARAYANI NILAYAM (SREEHARI), ATMAV JUNCTION, PULLAD P.O., VIA KOZHENCHERRY - 689 320.** **R1-R3 BY ADV. SRI.G.UNNIKRISHNAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.07.2020, ALONG WITH C.O.200/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.2806/2015 & - 2 - CO.200/2015.** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 15TH DAY OF JULY 2020 / 24TH ASHADHA, 1942** ## **C.O.No.200 OF 2015 IN MACA.2806/2015** **AGAINST THE AWARD IN OP(MV).277/2008 DATED 19-01-2015 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-II, PATHANAMTHITTA** ## **- APPELLANTS CROSS OBJECTORS/RESPONDENTS IN MACA:** - **1 SREEKALA K., W/O.LATE SANIL KUMAR, NARAYANI NILAYAM (SREEHARI), ATMAV JUNCTION, PULLAD P.O, VIA KOZHENCHERRY** - **2 HARIKRISHNAN, S/O.LATE SANIL KUMAR -DO- -DO-** - **3 VINAYAK S., S/O.LATE SANIL KUMAR, -DO- -DO-** **BY ADV. SRI.G.UNNIKRISHNAN** ## **RESPONDENT/ APPELLANT IN MACA:** **ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD., CHENNAI, REPRESETED BY THEIR ZONAL HEAD, SUBRAMANIAM BUILDING, CLUB HOUSE ROAD, ANNASALAI, CHENNAI 600 002** **R1 BY ADV. SRI.P.JACOB MATHEW** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 15.07.2020 ALONG WITH MACA.2806/2015(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.2806/2015 & - 3 - CO.200/2015.** ## **K.Vinod Chandran,J.** **--------------------------** **M.A.C.A.No.2806 of 2015 & Cross Objection No.200 of 2015 ------------------------------Dated, this the 15[th] day of July, 2020** ## **JUDGMENT** **Appeal by the Insurance Company and the Cross Objection by the claimants.** **2. The claimants were the wife, two minor children and mother of the deceased in an accident. The deceased was riding a motor cycle, which met with an accident allegedly by reason of the rash and negligent manner in which a car was driven by the 2[nd] respondent in the claim petition. The injured was taken to the hospital, where he succumbed. The claimants approached the Tribunal and while the matter was pending, the 4[th] respondent-mother died. The additional respondents, siblings of the deceased, were impleaded; who, however, filed a written statement specifically releasing their interest in favour of the wife and children of the deceased. The Tribunal awarded a total compensation of Rs.28,09,600/- under various heads.** **3. The Insurance Company has filed the appeal specifically contending that the deceased was a Government employee and was aged 45 years at the time of death. He** **MACA.2806/2015 & - 4 - CO.200/2015.** **could have continued in employment only till 56 years of age. In such circumstance, the multiplier of 14, which is applicable to persons between the age of 41 and 45, has to be split as 11 and 3; the last three years being entitled for compensation only at a reduced rate, of a notional income, as has been held in** _**Puttamma v**_ **.** _**Narayana Reddy**_ **[** _**2014 (1) KLT 738 (SC)**_ **]. Further it is contended on the basis of the decision in** _**National Insurance Co. Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]**_ **that compensation for loss of estate and funeral expenses have to be confined to Rs.15,000/- each. As far as loss of consortium is concerned, again based on the very same judgment it is argued that only Rs.40,000/- can be granted. There can be no compensation for loss of love and affection granted to the two children at the rate of Rs.1,50,000/- each.** **4. The Cross Objection claims enhancement of the award amounts. It is argued that at the time of death, the deceased had four dependants – wife, two children and the mother. In such circumstance, what has to be reduced for personal expenses is only 1/4[th] and not 1/3[rd] . It is further argued that the minor children have lost a parent and were deprived of care and guidance of the parent in their entire life and hence the compensation awarded is perfectly in** **MACA.2806/2015 & - 5 - CO.200/2015.** **order. It is contended that the loss of consortium to the wife also has to be retained as granted by the Tribunal. The further submission is that following the decision in** _**Magma General Ins.Co.Ltd. v. Nanu Ram [2018 ACJ 2782**_ **], the mother and children of the deceased are entitled to compensation for loss of filial and parental consortium respectively. The learned Counsel for the respondents-claimants also submits that even if split compensation is granted, the deceased having been employed in a pensionable job, the compensation should be calculated on the basis of his pension. It is pointed out that there was sufficient evidence produced before the Tribunal of the pay of the deceased in the year 2013, based on which the pension amount can be computed at half of the amount so shown.** **5.** _**Pranay Sethi**_ **specifically held that the head relating to loss of care and minor children does not exist (** _**sic**_ **para 54). In such circumstances, the Tribunal ought not to have granted compensation for loss of love and affection.** _**Pranay Sethi**_ **also specifically found compensation for loss of estate and funeral expenses to be confined to Rs.15,000/- each. Such a reduction would also be made. The loss of spousal consortium as held by the** **MACA.2806/2015 & - 6 - CO.200/2015.** **Hon'ble Supreme Court should be confined to Rs.40,000/-. Following the decision in** _**Nanu Ram**_ **, the mother and children of the deceased are also entitled to parental consortium at the rate of Rs.40,000/- each.** **6. The question of loss of dependency has to be considered insofar as the split compensation claimed by the Insurance Company and the enhancement sought for by the claimants. In this context, it has to be noticed that the claimants had produced a document as Exhibit A7 dated 22.11.2013, which indicates the pay that would have been drawn by the deceased if he was alive at that point of time, which is almost Rs.45,000/-. He would have continued for almost 11 years if he had been alive, in the regular employment and would have retired from service only in 2018, after the date shown in Exhibit A7. In such circumstances, this Court is of the opinion that even if split compensation is applied, it has to be done on the basis of the probable pension drawn by the deceased.** **7. On the question of dependency, the Tribunal has taken the notional monthly income of the deceased at Rs.16,000/- with 30% increase at Rs.20,800/-. This Court accepts the contention of the claimants that since at the time of death there were four dependants the reduction for** **MACA.2806/2015 & - 7 - CO.200/2015.** **personal expenses can only be at 1/4[th] of the total monthly income found. The learned Standing Counsel for the Insurance Company raises a contention that the mother died during the pendency of the proceedings and that the deceased had other siblings. However, it is pertinent that the Insurance Company never raised a contention before the Tribunal that the mother was not dependant on the deceased. As far as the death of the mother, she was entitled to compensation on the date of death of her son and it becomes her estate which her legal heirs were entitled to succeed to. In such circumstances, this Court finds that the reduction for personal expenses shall be confined to 1/4[th] of the amounts.** **8. Computing the loss of dependency at the rate of Rs.20,800/-, the annual income comes to Rs.2,49,600/-. One-fourth of the same has to be reduced for the purpose of computing the loss of dependency. In that context, the annual income would be Rs.1,87,200/-. The Insurance Company accepts that this has to be applied for 11 years. The notional income, as asserted by the Insurance Company, has to be calculated for the next 3 years. The pension, as this Court found earlier, would be almost Rs.22,500/- accepting the evidence adduced as per Exhibit A7. In such** **MACA.2806/2015 & - 8 - CO.200/2015.** **circumstances, this Court is of the opinion that even for the split period of three years, the amounts for the earlier 11 years can be applied. In such circumstances, the total compensation under the head of loss of dependency would be Rs.1,87,200/- x 14 = 26,20,800/-.** **9. Accordingly, the following modifications are made to the award made by the Tribunal:** |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the**<br>**Tribunal**<br>`|**Total amount after**<br>**enhancement in**<br>**appeal**<br>`| |---|---|---|---| |**1**|**Transportation Expenses**|**5000**|**5000**| |**2**|**Loss of dependency**|**2329600**|**2620800**| |**3**|**Loss of estate**|**50000**|**15000**| |**4**|**Funeral Expenses**|**25000**|**15000**| |**5**|**Loss of consortium**|**100000**|**40000 (spousal)**<br>**80000 (parental -**<br>**2 children)**<br>**40000 (filial)**| |**6**|**Pain and suffering**|**Nil**|**5000**| |**7**|**Loss of love and affection**|**300000**|**Nil**| ||**Total**|**28,09,600**|**28,20,800/-**| ## **10. The Insurance Company shall pay the award** **amounts with interest at the rate of 9% as directed by the Tribunal and for the enhanced amounts in the Cross Objection at the rate of 8% from the date of petition. It is submitted that 50% of the amounts have already been paid. The balance shall be computed and paid to the** **MACA.2806/2015 & - 9 - CO.200/2015.** **respondents 1 to 3 in the appeal, equally, who are the Cross Objectors, through RTGS, since both the children have now attained majority. The respondents-claimants shall produce the details of their Bank account before the Insurance Company/Tribunal within one month and the amount shall be transferred within a period of three months, failing which interest will be levied at the rate of 12% for the total dues including interest, from the date of receipt of a certified copy of this judgment.** **The Appeal and the Cross Objection are disposed of as indicated above. Parties are left to suffer their** **respective costs.** **Sd/K.VINOD CHANDRAN JUDGE** ## **Vku/-** **[ TRUE COPY ]**