Shajil Augustine and others v. United India Insurance Company Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 24[TH] DAY OF NOVEMBER 2023 / 3RD AGRAHAYANA, 1945 ``` ## **`MACA NO. 81 OF 2013`** ``` AGAINST THE AWARD DATED 11.11.2011 IN OP(MV) 101/2009 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, KALPETTA`** ## **`APPELLANT/PETITIONERS:`** ``` 1SHAJIL AUGUSTINE AGED 40 YEARS, S/O. AUGUSTINE (FATHER OF THE DECEASED AUGUSTINE SHAJIL @ APPU (MINOR) 2LISSY SHAJIL AGED 35 YEARS, W/O. SHAJIL AUGUSTINE, (MOTHER OF THE DECEASED AUGUSTINE SHAJIL @ APPU (MINOR) 3MARIYA (MINOR) AGED 9 YEARS, D/O. SHAJIL AUGUSTINE (SISTER OF DECEASED AUGUSTINE SHAJIL @ APPU (MINOR)) MINOR REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN FATHER OF THE 1ST PETITIONER. (ALL ARE RESIDING AT MANIMALA HOUSE, NADAVAYAL POST, NADAVAYAL VILLAGE, WAYANAD DISTRICT) ``` ``` BY ADV SMT.CELINE JOSEPH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` THE BRANCH MANAGER UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, RAWTHER BUILDING, NEAR PINANGODE ROAD JUNCTION, MAIN ROAD, KALPETTA,WAYANAD. ``` ``` BY ADV P.K.MANOJKUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 81 OF 2013 ``` ``` 2 ``` ## **`JUDGMENT`** The appellants are the petitioners in O.P.(M.V.) No.101/2009 on the files of the Motor Accident Claims Tribunal, Kalpetta. The said claim petition was submitted by the appellants seeking compensation for the death of a child aged 1 ½ years named Agustin Shajil @ Appu. The deceased was the son of appellants 1 and 2 and the brother of the 3[rd] appellant. 2. The accident occurred when the deceased was hit by a bus bearing Registration No.KL-12-A-5006. The 1[st] respondent in the claim petition was the driver of the bus, which was owned by the 2[nd] respondent therein. The vehicle was insured with the 3[rd] respondent in the claim petition, the respondent herein. As compensation, he claimed an amount of Rs.5,00,000/-. 3. The 1[st] and 2[nd] respondents filed a joint written statement. Even though they did not dispute the accident, it was contended that the accident occurred not due to the negligence on the part of the 1[st] respondent. It was also contended that the vehicle was insured with the 3[rd] respondent, and hence, if at all there is any liability, the same shall be indemnified by the 3[rd] ``` MACA NO. 81 OF 2013 ``` ``` 3 ``` respondent. 4. The 3[rd] respondent filed a written statement admitting the coverage of the policy but disputed the liability on various grounds. The negligence and quantum of compensation were also disputed. 5. The evidence in this case consists of Exts.A1 to A7 from the side of the appellants, and no evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the bus and being the insurer, the respondent herein was held liable to pay the compensation. The quantum of compensation was fixed as Rs.2,44,500/- and the said amount was directed to be deposited by the respondent Insurance Company along with interest @ 7.5% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. 6. Heard Smt.Celine Joseph, learned counsel appearing for the appellants and Sri.P.K. Manojkumar, learned counsel appearing for the respondent Insurance Company. ``` MACA NO. 81 OF 2013 ``` ``` 4 ``` 7. The only dispute relates to the quantum of compensation. The learned counsel for the appellants submits that the amount awarded by the Tribunal is grossly inadequate, whereas the learned counsel for the Insurance Company would oppose the said contention by pointing out that reasonable compensation has been granted and no interference is warranted. 8. It is an undisputed fact that the deceased was aged 1 1/2 years at the time of the accident. The question relating to the manner in which the compensation has to be assessed in respect of the death of a minor was a subject matter in various decisions. One of the decisions to be noted in this regard is the one rendered by a Single Bench of this Court in **National Insurance Company v. Assainar** [2019 (4) KLT 39]. In the said decision, after referring to a large number of decisions rendered by the honourable Supreme Court, including **Kishan Gopal & Anr. v. Lala & Ors.** [2014 (1) SCC 244], this Court formulated a novel method regarding the manner in which the compensation has to be concluded. In the said decision, the children below the age of 6 years were treated as a separate category and a specific method ``` MACA NO. 81 OF 2013 ``` ``` 5 ``` of computation was contemplated therein. The relevant observations made by this Court in the said decision, with regard to the assessment of compensation for the death of children below the age of 6 years is made to paragraph 19 (4) of the said judgment, which reads as follows: _“(4) Except in exceptional cases, where the Tribunal finds on cogent and irrefutable evidence let in by the parties that the quantum of compensation arrived at in cases involving death of children below the age of 6 in the manner indicated in this judgment will not satisfy the requirement of just compensation, consolidated amounts can be granted by way of compensation. The consolidated amounts for the said purpose shall be as provided for in S.163A of the Act as applicable to death cases namely, 2,40,000/-, subject to a progressive addition to be made from year to year, at the rate of 12,000/- for every year after 1995, for cases involving death upto the year 2018. Thereafter, the compensation shall be_ ``` MACA NO. 81 OF 2013 ``` ``` 6 ``` _computed as provided for in the amended S.163A, viz., 5,00,000/-, after offsetting the effect of inflation on the real value of money, as indicated in Clause (2) above."_ As per the same, the consolidated amount has to be calculated by taking the amount shown in the Second Schedule of the Motor Vehicles Act, which applies to Section 163A. Thus, the basic amount to be taken was fixed as Rs.2,40,000/- pertaining to the year 1995, and a progressive addition was to be made year to year @ Rs.12,000/- taking note of the value of money and the impact of the inflation. After considering the observations made therein, I am convinced that the method contemplated by this Court in **Assainar’s** case (supra) for computing the compensation is logical. Since progressive addition was contemplated therein, it can be made applicable to the accident occurred at any point of time. Thus, I am inclined to accept the said method of computation in this case. In this case, the accident happened in the year 2008, and while adopting the method of computation as referred to in **Assainar’s** case, the amount of compensation for ``` MACA NO. 81 OF 2013 ``` ``` 7 ``` loss of dependency would come to Rs.3,96,000/- [2,40,000 + (12,000 x 13)]. 9. However, in **Assainar’s** case, this Court did not grant any further compensation towards the conventional heads. The learned counsel for the appellants brought the attention of this Court to a judgment rendered by another Single Bench of this Court in M.A.C.A. 3312/2014 **[ Antony and others v. Shiju and another (Neutral citation number 2023-KER-53347)]** , wherein this Court calculated the compensation for dependency by placing reliance upon **Assainar’s** case and later proceeded to assess the compensation on conventional heads by following the principles laid down in the **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680] and **Magma General Insurance Co.Ltd v. Nanu Ram alias Churu Ram [2018 (18) SCC 130]** case. However, in response to the aforesaid contention, learned counsel for the Insurance Company would place reliance upon the recent decision rendered by the Honourable Supreme Court in **Meena Devi v. Nunu Chand Mahto** [2022 (6) KLT SN 5 (C.No.3) SC] : [2022 (5) KLT OnLine 1019 (SC)]. In the said decision, even ``` MACA NO. 81 OF 2013 ``` ``` 8 ``` though a different yardstick was applied for assessing the compensation for dependency, as regards the compensation under conventional heads, a consolidated amount of Rs.50,000/was fixed. In the said judgment, the Honourable Supreme Court referred to other decisions, including the **Kuruvan Ansari @ Kuruvan Ali & another v. Shyam Kishore Murmu and another** [2022 (1) SCC 317], wherein the conventional head was fixed as Rs.55,000/-. On the other hand, in the judgment passed by this court in M.A.C.A. No.3312/2014, the decision rendered by the Honourable Supreme Court in **Meena Devi’s** case ( supra) was not referred to. Thus, in the light of the decision rendered by the Honourable Supreme Court, I am of the view that the compensation under the conventional heads can be fixed as Rs.50,000/-.Thus, the total compensation in this case is reassessed as Rs.4,46,000/- (Rupees four lakh forty six thousand only) (3,96,000 + 50,000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 11.11.2011 in O.P.(M.V.) No.101/2009 passed by the Motor Accident Claims Tribunal, ``` MACA NO. 81 OF 2013 ``` ``` 9 ``` Kalpetta is hereby modified by refixing the quantum of compensation as Rs.4,46,000/-(Rupees four lakh and forty six thousand only), and the said amount shall be deposited by the respondent herein, along with interest @ 7.5% per annum from the date of petition till realisation, with proportionate costs, after adjusting the amounts already deposited by them. It is further clarified that, as the appeal was filed with a delay of 257 days, the appellant shall not be entitled to interest for the additional amount, for the said period. **Sd/-** ``` ZIYAD RAHMAN A.A. JUDGE ``` scs