Sajini K and others vs National Insurance Company Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 26TH POUSHA, 1940** **M.A.C.A.No. 1982 of 2016** **AGAINST THE AWARD IN OPMV 904/2015 of PRINCIPAL MOTOR ACCIDENTS CLAIMS TRRIBUNAL, KOZHIKODE DATED 30-01-2016** ## **APPELLANTS/PETITIONERS:** - **1 SAJINI K, AGED 46 YEARS, D/O LATE SURESHAN, KUNNATH THAZHAM VAYAL, HOUSE.NO. 3/2281, NADAKKAVU P.O, KOZHIKODE, (WIFE OF DECEASED).** - **2 SHAMNA.M, AGED 23 YEARS, (D.O.B 28-04-1992), D/O LATE SURESHAN, KUNNATH THAZHAM VAYAL, HOUSE NO.3/2281, NADAKKAVU P.O, KOZHIKODE, (DAUGHTER OF DECEASED).** - **3 SHIMNA .M, AGED 20 YEARS, (DOB 08-03-1995), D/O LATE SURESHAN, KUNNATH THAZHAM VAYAL, HOUSE.NO.3/2281, NADAKKAVU P.O, KOZHIKODE, (DAUGHTER OF DECEASED).** - **4 SHALINI.M, AGED 18 YEARS, (DOB 16-01-1998), D/O LATE SURESHAN, KUNNATH THAZHAM VAYAL, HOUSE NO.3/2281, NADAKKAVU P.O, KOZHIKODE, (DAUGHTER OF DECEASED).** **BY ADV. SRI.P.S.SREEDHARAN PILLAI** **ADV. SRI. SANDEEP T.K ADV. SRI. ARJUN SREEDHAR ADV. SRI. ARUN KRISHNA DHAN** ## **RESPONDENTS/RESPONDENTS:** - **1 NAJEEB V T, AGED 42 YEARS, S/O MAMMED KOYA V.T, EVER GREEN COLONY, THOTTYNARAN P.O, MANAKAVU, KOZHIKODE 673 007.** - **2 NATIONAL INSURANCE COMPANY LTD.,** - **2ND FLOOR, NOOR COMPLEX, ARAYIDATHPALAM, NEAR SBT, MAVOOR ROAD, KOZHIKODE 673 661.** ## **BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.01.2019, ALONG WITH MACA.2866/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.NoS. 1982 of 2016 & 2866 of 2016** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 26TH POUSHA, 1940** ## **M.A.C.A.No. 2866 of 2016** **AGAINST THE AWARD IN OPMV 904/2015 of PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED30-01-2016.** ## **APPELLANT/2ND RESPONDENT IN O.P.(MV) NO.904/2016:** **M/S NATIONAL INSURANCE COMPANY LTD 2ND FLOOR, NOOR COMPLEX, ARAYIDATHPALAM, NEAR SBT, MAVOOR ROAD, KOZHIKODE, REPRESENTED BY THE MANAGER, REGIONAL OFFICE, M G ROAD, ERNAKULAM.** **BY ADV. SRI.LAL GEORGE** **RESPONDENTS/PETITIONERS 1 TO 4/ 1ST RESPONDENT O.P (MV) 904/2015:** - **1 SAJINI K, W/O.LATE SURESHAN, AGED 47 YEARS, KUNNATH THAZHAM VAYAL, HOUSE.NO 3/2281, P O NADAKKAVU, KOZHIKODE 673011.** - **2 SHAMNA M, D/O.LATE SURESHAN, AGED 24 YEARS, KUNNATH THAZHAM VAYAL, HOUSE NO 3/2281, P.O NADAKKAVU, KOZHIKODE-673011.** - **3 SHIMNA M, D/O.LATE SURESHAN, AGED 21 YEARS, KUNNATH THAZHAM VAYAL, HOUSE NO.3/2281, P.O NADAKKAVU, KOZHIKODE-673011.** - **4 SHALINI M, D/O.LATE SURESHAN, AGED 18 YEARS, KUNNATH THAZHAM VAYAL, HOUSE NO.3/2281, P.O NADAKKAVU, KOZHIKODE-673011** - **5 NAJEEB V T, S/O.MAMMAD KOYA V T, AGED 43 YEARS, EVER GREEN COLONY, THOTTUMARAM P O, MANKAVU, KOZHIKODE-673639.** **M.A.C.A.NoS. 1982 of 2016 & 2866 of 2016** **3** **BY ADVS. SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.01.2019, ALONG WITH MACA.1982/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.NoS. 1982 of 2016 & 2866 of 2016** **4** ## **JUDGMENT** These appeals are preferred against the award in OP(MV)No.904/2015 of the Principal Motor Accidents Claims Tribunal, Kozhikode. The dependents of the deceased Sureshan preferred the claim petition under section 166 of the Motor Vehicles Act and the Motor Accidents Claims Tribunal awarded Rs.13,65,000/- as compensation. Being aggrieved by that, the dependents and legal heirs of the deceased Sureshan preferred M.A.C.A No.1982 of 2016 and insurer of the offending vehicle KL 11 AP 8453 preferred M.A.C.A No.2866/2016. 2. It would be relevant and useful to refer the facts leading to this accident. On 16-04-2015 at 3.30.pm the deceased was riding a scooter KL 13 U 4097 from Kozhikode to Koyilandi, when he reached at Kattilpeedika, a lorry KL 11 AP 8453 driven in a rash and negligent manner hit against the scooter. As a result, he sustained serious injuries and while undergoing treatment he succumbed to the injuries at Medical College Hospital, Kozhikode. The accident was due to the rash and negligent **M.A.C.A.NoS. 1982 of 2016 & 2866 of 2016** **5** driving of the lorry by its driver. The owner cum driver was ex-parte in the lower court. The insurer admitted the insurance of the vehicle. The accident was not disputed by the owner in the lower court. Ext. A1 FIR shows that the accident occurred due to the negligence of the driver of the lorry. The postmortem certificate Ext. A2 shows that the deceased died due to the injuries sustained in the accident. 3. The deceased was aged 58 years at the time of accident. He was a fisherman and was getting Rs.15,000/per month. The Motor Accidents Claims Tribunal took Rs.10,000/- for calculating dependency compensation. The first petitioner Sajini aged 46 years was his wife, the second petitioner Shamna aged 23 years, the third petitioner Shimna aged 20 years and the fourth petitioner Shalini aged 17 years are his daughters. 4. The appellant in 2866/2016 contended that the monthly income fixed by the Tribunal towards future prospects is just and proper, but the compensation awarded towards loss of consortium and love and affection are very high. **M.A.C.A.NoS. 1982 of 2016 & 2866 of 2016** **6** ## 5. Apex court in _**National Insurance Company**_ V. ## _**Pranay Sethi [2017 (4) KLT 622 (SC)],**_ in which Apex Court 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 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_ **M.A.C.A.NoS. 1982 of 2016 & 2866 of 2016** **7** _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._ A perusal of the judgemen shows that future prospects was not taken for clculating dependency compensation. The monthly income of the deceased was taken as Rs.10,000/at the time of accident. He was aged 58 years hence the multiplier is 9. Add 10% towards future prospects inview of Pranay Sethi (supra) the income comes to Rs.11,000/-. Since there are four dependants, in view of _**Sarla Verma v. Delhi Transport Corporation (AIR 2009 SC 3104)**_ , ¼[th] has to be deducted from dependency compensation and the dependents are entitled to get an amount of **M.A.C.A.NoS. 1982 of 2016 & 2866 of 2016** **8** Rs.8,91,000/- (11000x9x12x3/4) towards Loss of dependancy. The learned Tribunal awarded an amount of Rs.8,10,000/- on that head and the balance is Rs.81,000/-. 6. Apex court _**Magma General Insurance Co. Ltd. v. Nanuram alias Chuhru Ram and others [ 2018 ACJ 2782]**_ it was 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'._ **M.A.C.A.NoS. 1982 of 2016 & 2866 of 2016** **9** _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 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_ **M.A.C.A.NoS. 1982 of 2016 & 2866 of 2016** **10** _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 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)]._ The dependants are entitled to get just amount towards consortium and love and affection prospects as stated. In view of _**Magma General Insurance Co. Ltd. Versus Nanu Ram Alias Chuhru Ram & Others [2018 ACJ**_ **M.A.C.A.NoS. 1982 of 2016 & 2866 of 2016** **11** _**2782],**_ the dependants are entitled to get an amount of Rs.1,60,000/- (40,000x4) towards loss of filial consortium and spousal consortium. The learned Tribunal awarded Rs.1,00,000/- toward loss of consortium and the balance is Rs.60,000/-. 7. It is not possible to assess the measurement of love and affection of the children towards their father and vice versa. At the time of death, one daughter was minor. The Court is duty bound to award just amount as compensation irrespective of their plea towards love and affection. The care, comfort, solace and other aspect received from the father is great in the case of minor girl children till their marriage. The right to get this on the basis of their relationship and they are entitled to get some amount towards love and affection. In _**Magma's case (Supra)**_ , Apex Court rightly observed that each claimants are entitled to get Rs.50,000/- towards loss of love and affection. Since the above direction is provided for getting relief to the minor children and the wife as a relief to the loss of their father at a young age and the wife lost her husband at the age of 46 years, they are entitled to get **M.A.C.A.NoS. 1982 of 2016 & 2866 of 2016** **12** just amount towards love and affection. They claimed Rs.4,00,000/- and the learned Tribunal awarded Rs.4,00,000/-. Even though, compensation towards Love and affection was fixed by the Apex Court in _**Magma's Case (Supra)**_ , considering the nature of family relationship, the amount awarded by the Tribunal is confirmed since the girl children have no other care and protection. Even though, the learned counsel appearing for the appellant in M.A.C.A No.2866 of 2016 raised a contention to limit the amount towards love and affection in view of _**Magma's case (Supra),**_ considering the special circumstances, this is not a fit case to reduce the amount awarded by the Tribunal. Accordingly, the total enhanced compensation will be Rs.1,41,000/- (81,000+60,000) (Rupees One Lakh Forty One Thousand only). In view of _**Pranay Sethi (Supra)**_ , the reasonable figures on conventional heads, namely, loss of estate and funeral expenses should be Rs.15,000/- each. In this case, the Tribunal awarded an amount of Rs.25,000/- each towards Funeral expenses and Loss of estate, hence an amount of Rs.20,000/- has to be deducted and they are entitled to get **M.A.C.A.NoS. 1982 of 2016 & 2866 of 2016** **13** the balance amount Rs.1,21,000/- (1,41,000-20,000) (Rupees One Lakh Twenty One Thousand only). Accordingly, the dependants are entitled to get an enhanced compensation of Rs.1,21,000/- (Rupees One Lakh Twenty One Thousand only) with 9% interest and proportionate cost in addition to Rs.13,65,000/- (Rupees Thirteen Lakhs Sixty Five Thousand only) awarded by the learned Tribunal. Both the appeals are partly allowed and disposed as above. Sd/- nak/NS **P.D.RAJAN JUDGE**