Shyni.K and Others v. V. Sheriff and Others (MACA No. 2695 of 2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY ,THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940** ## **MACA.NO. 2695 OF 2010** **AGAINST THE AWARD IN O.P.(M.V.) NO.1349/2004 OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY DATED 23-04-2010** ## **APPELLANTS/PETITIONERS :** - **1 SHYNI.K, AGED 31 YEARS, W/O.LATE K.M.PAVITHRAN, VANDICHALIL HOUSE, MATHUKKOTH, P.O.VARAM, KANNUR.** - **2 GOPIKA, AGED 7½ YEARS, D/O.LATE K.M.PAVITHRAN, (MINOR REPRESENTED BY HER MOTHER AND NEXT FRIEND SHYNI K., VANDICHALIL HOUSE, MATHUKKOTH, P.O.VARAM, KANNUR.** - **3 K.M.YESHODA, AGED 71 YEARS, M/O.LATE K.M.PAVITHRAN, VANDICHALIL HOUSE, MATHUKKOTH, P.O.VARAM, KANNUR.** - **4 K.M.PANKAJAVALLY, AGED 51 YEARS, D/O.YESHODA, RESIDING AT VANDICHALIL HOUSE, MATHUKKOTH, P.O.VARAM, KANNUR.** **BY ADV. SRI.P.U.SHAILAJAN** ## **RESPONDENTS/RESPONDENTS :** - **1 V.SHERIFF, S/O.MOIDEEN KOYA, VAZHAYIL KANIYANKANDY HOUSE, PERAMBRA P.O., KOZHIKKODE DISTRICT, PIN-673625.** - **2 A.P.BEERANKUTTY, S/O.A.P.ABOOBAKER, ALAPURAYIL HOUSE, AVILORA, VAVOD AMSOM, P.O.KODUVALLY, KOZHIKODE DISTRICT, PIN-673572.** - **3 NATIONAL INSURANCE COMPANY LIMITED, PARCO TOWER, P.M.TAJ ROAD, KOZHIKODE, PIN-673001.** ## **BY ADV. SMT.DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 2695 of 2010** **2** ## **JUDGMENT** This appeal is preferred against the award in O.P. (M.V.) No.1349 of 2004 of the Additional Motor Accidents Claims Tribunal, Thalassery by the legal representatives of the deceased Pavithran. On 3.04.2004 one Pavithran sustained injuries in a motor accident, while undergoing treatment, he succumbed to the injuries. The Motor Accidents Claims Tribunal awarded compensation of Rs.4,72,000/- (Rupees Four Lakh Seventy Two Thousand only) to the Legal representatives of the deceased. Being aggrieved by that they preferred this appeal. 2. It would be relevant and useful to mention the facts leading to the accident. On 03.04.2004 while the deceased was standing on the side of the road at Eranhipalam, a bus KL-11/L-2372 driven in a rash and negligent manner hit against the deceased, as a result he sustained serious injuries. Immediately he was removed to hospital and while undergoing treatment at National Hospital, he succumbed to the injuries. The owner of the bus was ex parte in the lower court. The driver filed written statement and contested the matter. The insurer admitted the insurance **MACA.No. 2695 of 2010 3** of the vehicle. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A12. 3. Respondents have no dispute with regard to the death and negligence of the deceased. The did not prefer any Cross Objection in this appeal and no appeal against the award. The insurer admitted the insurance of the vehicle. 4. The 1[st] petitioner (Shyni) is the wife, the 2[nd] petitioner (Gopika) is the daughter, 3[rd] petitioner (K.M.Yeshoda) is the mother and the 4[th] petitioner (K.M.Pankajavally) is the sister of the deceased. They contended that the deceased was a driver at M/s Vyas Transports, Kozhikode and was getting salary of Rs.5,000/and additional batta, but no evidence has been adduced in the lower court to prove the income. The learned Motor Accidents Claims Tribunal took only Rs.3,000/- for calculating dependency compensation which is very low. 5. In death cases, the measure of damage is towards the pecuniary losses, which is to be suffered by the dependents as a result of the death. But the assessment of damages to the dependents is beset with difficulties **MACA.No. 2695 of 2010 4** 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 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. ## 6. Apex Court in **National Insurance Company V. Pranay Sethi [2017 (4) KLT 622 (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. **MACA.No. 2695 of 2010** **5** (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 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. 7. The deceased was aged 38 years at the time of accident and was getting an amount of Rs.5,750/(Rs.5,000/- + Rs.750/- for batta) per month. In view of **MACA.No. 2695 of 2010** **6** **Dixit Kumar and Ors.** Vs. **Om Prakash Goel [2017 ACJ 2057]** , his income is taken as Rs.5,750/- per month for calculating dependency compensation. While adding 40% (5750x40%) of the income towards future prospects in view of **Pranay Sethi** (Supra), the total monthly income will be Rs.8,050/- (5750+2300). The Tribunal took the multiplier as 16, but the right multiplier for a person at the age of 38 years is 15. There are four dependents, hence 1/4[th] has to be deducted. Accordingly, the legal representatives of the deceased are entitled to get an amount of Rs.10,86,750/- (8050x12x15x3/4) for Loss of dependancy. The learned Tribunal awarded an amount of Rs.4,32,000/- and the balance is Rs.6,54,750/-. In addition to that an amount of Rs.11,000/- is awarded for funeral expenses and Rs.15,000/- is awarded for loss of estate. 8. In **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, **MACA.No. 2695 of 2010** **7** 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 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. **MACA.No. 2695 of 2010** **8** 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 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). **MACA.No. 2695 of 2010** **9** 9. In view of **Magma General Insurance Co. Ltd. (Supra)** , the dependants are entitled to get an amount of Rs.2,00,000/- (Rs.50,000/- each) for love and affection and an amount of Rs.1,60,000/- (Rs.40,000/- each) for filial consortium. The learned Tribunal awarded only Rs.10,000/- for love and affection and no amount was awarded towards loss of consortium. Hence the dependants are entitled to get an amount of Rs.1,90,000/for Love and affection and an amount of Rs.1,60,000/- for filial consortium. The total enhanced compensation is Rs.10,30,750/- (Rupees Ten Lakh Thirty Thousand Seven Hundred and Fifty only). In view of the decision in **Rajesh and Ors. Vs. Rajbir singh and Ors. [(2013) ACJ 1403]** the claimants are entitled to get just amount as compensation. Accordingly, the dependents are entitled to get an enhanced compensation of Rs.10,30,750/- (Rupees Ten Lakh Thirty Thousand Seven Hundred and Fifty only) with 9% interest and cost in addition to the award amount. The insurer is directed to satisfy the award within a period of thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the **MACA.No. 2695 of 2010 10** date of default. There is a delay of 78 days in filing the appeal. The appellants are not entitled to get interest for the delay period. M.A.C.A is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge