The New India Assurance Co. Ltd. v. Saras, Swathy, Soorya, Sajin and Kolothumparampu

**MACA.No.2448 OF 2014** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 13TH DAY OF OCTOBER 2020 / 21ST ASWINA, 1942** **MACA.No.2448 OF 2014** **AGAINST THE AWARD IN OPMV 907/2008 DATED 31-12-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANT/3rd RESPONDENT:** **THE NEW INDIA ASSURANCE CO.LTD REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORISED OFFICER.** **BY ADV. SRI.VPK.PANICKER** ## **RESPONDENT/S:** > 1. **SARASU, W/O.GANGADHARAN, CHILLIKKOTTATHIL HOUSE, KOLOTHUMPARAMBU, KEDAMANGALAM KARA, PARAVUR VILLAGE – 683 513.** > 2. **SWATHY, D/O.GANGADHARAN, CHILLIKKOTTATHIL HOUSE, KOLOTHUMPARAMBU, KEDAMANGALAM KARAN, PARAVUR VILLAGE – 683 513.** 3. **SOORYA, D/O. GANGADHARAN, CHILLIKKOOTTATHIL HOUSE, KOLOTHUMPARAMBU, KEDAMANGALAM KARA, PARAVUR VILLAGE - 683 513. SAJIN, S/O.GANGADHARAN, CHILLIKKOTTATHIL HOUSE,** 4. **KOLOTHUMPARAMPU, KEDAMANGALAM KARA, PARAVUR VILLAGE - 683 513. R1 BY ADV. SMT.ANUPAMA JOHNY R1 BY ADV. SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-09-2020, THE COURT ON 13-10-2020 DELIVERED THE FOLLOWING:** **MACA.No.2448 OF 2014** **2** ## **JUDGMENT** The appellant – the Insurance Company - was the 3[rd] respondent in OP(MV) No.907 of 2008 of the Motor Accident Claims Tribunal, North Paravur. The petitioners in the claim petition are the respondents in the appeal. As the appellant admitted the Insurance Policy, the driver and owner of the offending vehicle – the respondents 1 and 2 in the claim petition are not made parties in the appeal. The parties are, for the sake of convenience, referred to as per their litigate status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act,1988 ( for short hereinafter referred to as “Act”) claiming compensation on account of the death of a minor child Krishnaja, the daughter of the 1[st] petitioner and the sibling of the petitioners 2 to 4. 3. The case of the petitioners in the claim petition, in brief, is that on 27.6.2008, while **MACA.No.2448 OF 2014** **1** Krishnaja was walking on the side of the Aluva – Palarivattom Road, Ernakulam, the motor cycle bearing Reg.No.KL-7/V-9122 ridden by the 1[st] respondent, in a rash and negligent manner and at high speed, hit Krishnaja causing her serious injuries. She was initially admitted in the MAJ Hospital, Edappally, and, thereafter, at the Ernakulam Medical Centre Hospital. She was treated as an inpatient for six days, but unfortunately she succumbed to the injuries on 2.7.2008. The deceased was aged nine years at the time of her death. The 2[nd] respondent was the owner of the offending vehicle and the 3[rd] respondent was the insurer. The petitioners claimed a compensation of Rs.13,31,000/-, which was limited to Rs.8,00,000/-. 4. The respondents 1 and 2 were set ex parte. The 3[rd] filed a written statement, inter alia, contending that the 1[st] respondent did not ride the motor cycle in a rash and negligent manner. The deceased crossed the road in a careless and **MACA.No.2448 OF 2014** **2** negligent manner. Therefore, the petitioners were not entitled to compensation. However, the 3[rd] respondent admitted the insurance policy. 5. The 1[st] petitioner was examined as PW1 and Exts.A1 to A5 series were marked through her in evidence. The 3[rd] respondent did not let in any evidence. 6. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by holding that the petitioners were entitled to recover an amount of Rs.6,33,000/- with 8% interest per annum from the date of the claim petition till the date of realisation with proportionate costs of Rs.8,500/-. The amount of compensation was directed to be apportioned equally among the petitioners. The 3[rd] respondent was directed to deposit the compensation amount. 7. The comparative table showing the compensation that was claimed by the petitioners and that was awarded by the Tribunal is as **MACA.No.2448 OF 2014** **3** ## follows:- |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount awarded (in<br>rupees)| |---|---|---|---| |1|Transportation expenses|5,000|Nil| |2|Medical expenses|50,000|22,000| |3|Funeral expenses|25,000|25,000| |4|Damage to articles|1,000|1,000| |5|Pain and sufferings|1,00,000|25,000| |6|Compensation for loss of<br>dependency|6,00,000|4,50,000| |7|Compensation for loss of<br>care, company security<br>and service to the<br>petitioners|50,000|Nil| |8|Compensation for loss of<br>love,affection,<br>companionship,guidance<br>to the petitioners 1 to 4|4,00,000|1,00,000| |9.|Compensation for mental<br>agony and pain to the<br>petitioners|50,000|Nil| |10.|Compensation for loss of<br>estate|50,000|10,000| ||Total|13, 31,000<br>Claim limited<br>to<br>Rs.8,00,000/-|6,33,000<br>=======| 8. Aggrieved by the compensation awarded by the Tribunal under the various heads mentioned above, the 3[rd] respondent -Insurance Company has preferred the appeal. 9. Heard Sri.V.P.K.Panicker, the learned counsel appearing for the appellant and Sri.A.N.Santhosh, the learned counsel appearing for **MACA.No.2448 OF 2014** **4** the respondents. 10. The learned counsel appearing for the appellant argued that the compensation awarded by the Tribunal was excessive. The Tribunal ought to have followed the ratio in **Kishan Gopal and Another v. Lala and Others [(2014) 1 SCC 244].** He also contended that the decision of this Court in **National Insurance Company Ltd. v. Assainar (2019 (4) KLT 39)** was basically laid down following the parameters under Section 163A of the Act. Therefore, the maximum compensation that can be awarded is Rs.5,00,000/-, and that compensation cannot be awarded under other heads. Hence the impugned award is erroneous. 11. The learned counsel appearing for the respondents, per contra, contended that the Tribunal has rightly awarded compensation under the various heads to the petitioners, who are legally and legitimately entitled for the compensation, which is just, as laid down by the Hon'ble Supreme Court in a catena of decisions. **MACA.No.2448 OF 2014** **5** 12. The sole point that arises for consideration in this appeal is whether the amount of compensation awarded by the Tribunal is just and reasonable. 13. The Hon'ble Supreme Court in **Kishan Gopal & Another** (supra) has laid down the law for grant of compensation in the case of death of children. 14. A learned Single Judge of this Court in **National Insurance Company Ltd v. Assainar** (supra), relying on the various judgments of the Hon'ble Supreme Court has succintly laid down the law on payment of compensation for the loss of dependency in the cases involving death of children. Paragraph 19 of the judgment reads thus **:** “19. The custom of the aforesaid discussion as regards compensation payable for loss of dependency in cases involving death of children can be summarised as follows: (1). Compensation in respect of school going children died in motor accidents above the age of 6 and upto the age of 15 shall be computed applying the multiplier method, and the multiplier to be applied shall be “15”, subject to the condition that the compensation shall not go below the prescribed amount in terms of the Second **MACA.No.2448 OF 2014** **6** ## Schedule. (2) Except in exceptional cases, where different yardsticks have to be followed for arriving at the notional income having regard to the cogent and irrefutable evidence let in by the parties, the notional income of the deceased children in the age group of 6 to 15 shall be determined as in the Second Schedule , viz, Rs.24,000/- after making appropriate correction for offsetting the inflation, as indicated in the table furnished in paragraph 18 above. (3) No amount need be added to the notional income towards future prospects and one third of the notional income has to be deducted towards personal expenses while computing compensation. (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, Rs.2,40,000/- subject to a progressive addition to be made from year to year, at the rate of Rs.12,000/- for every year after 1995, for cases involving death upto the year 2018. Thereafter, the compensation shall be computed as provided for in the amended S.163A viz., Rs.5,00,000/-, after offsetting the effect of inflation on the real value of money, as indicated in Clause (2) above.” 15. I fully concur with the ratio laid down in **Assainar** (supra). 16. Although the argument of the learned **MACA.No.2448 OF 2014** **7** counsel appearing for the appellant at the first blush sounded attractive, the same is untenable. I say this because, this Court in **Assainar** (supra) had only followed the formula and broader principles laid down under Section 163A, for fixation of notional income of the children who died in accidents after 1995-1996, so as to have a uniformity in the awards passed by the Tribunals and Courts. This Court did not per se hold that the earlier schedule under Section 163A has to be followed, but only evolved a method for payment of compensation to the dependants/legal heirs of illfated children who lost their lives in accidents. 17. Undiputedly, the claim petition was filed under Section 166 of the Act and not under Section 163A. Therefore, the argument of the learned counsel for the appellant that no compensation can can be awarded under the conventional heads is unsustainable in law. 18. Following the parameters laid down by this Court in **Assainar** (supra), I hold that the **MACA.No.2448 OF 2014** **8** notional income of the deceased who passed away on 2.7.2008 can safely be fixed at Rs.50,000/- per annum. The multiplier to be adopted is “15” as per the ratio in **Sarla Verma & Others v. Delhi Transport Corporation** [(2009) 6 SCC 121] and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680]. In view of the ratio in **Assainar** (supra), one third of the notional income has to be deducted towards personal expenses while computing compensation. Thus, the compensation for loss of dependency is to be fixed at Rs.5,00, 000/- (Rupees Five lakh only) instead of Rs.4,50,000/- (Rupees Four lakh fifty thousand only) awarded by the Tribunal. 19. On a perusal of the impugned award, it is seen that the Tribunal has awarded Rs.22,000/- as medical expenses based on Ext.A5 series medical bills, which is just and legal. Going by the principles laid down in **Sarla Verma & Otrs v. Delhi Transport Corporation** and **National Insurance Company Ltd. v. Pranay Sethi** (supra) **MACA.No.2448 OF 2014** **9** and **United India Insurance Company Ltd v** . **Satinder Kaur @ Satwinder Kaur and Others** [2020 (3) KLT 760], the maximum compensation that is paybale under the conventional heads – funeral expenses, loss of consortium and loss of estate are Rs.15,000, Rs.40,000/- and Rs.15,000/respectively. 20. It is seen that the Tribunal has awarded an amount of Rs.25,000/- for funeral expenses which I scale down to Rs.15,000/-. Likewise, under the head - 'loss of consortium', the Tribunal has awarded a lumpsum amount of Rs.1,00,000/which is unsustainable in law. As the deceased was a minor aged only 9 years and that the petitioners 2 to 4 are only minor children, I am of the considered opinion that only the 1[st] petitioner is entitled to parental consortium of Rs.40,000/-. Thus, I scale down the compensation awarded under the said head from Rs.1,00,000/- to Rs.40,000/-. In the case of compensation for loss of estate, it is seen that the Tribunal has awarded **MACA.No.2448 OF 2014** **10** only Rs.10,000/- which is again against the principles in the aforecited decisions. Hence, I enhance the said amount by Rs.5,000/- i.,e., to Rs.15,000/-. The compensation of Rs.1,000/awarded under the head “Damage to articles” is found to be just and reasonable. Also, the Tribunal has awarded an amount of Rs.25,000/- towards pain and sufferings for a nine year child, which according to me is on the higher side. I feel it appropriate to award an amount of Rs.15,000/- for the pain and sufferings, suffered by the deceased for a period of six days. 21. Therefore, on an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court and this Court in the afore-cited decisions, I am of the considered opinion that the respondents/petitioners are entitled for compensation as modified and recalculated above, and given in the table below for easy reference. **MACA.No.2448 OF 2014** **11** |SI.<br>No|Head of claim|Amount<br>claimed in<br>claim<br>petition<br>(in rupees)|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---|---| |1|Transportation expenses|5,000|Nil|Nil| |2|Medical expenses|50,000|22,000|22,000| |3|Funeral expenses|25,000|25,000|15,000| |4|Damage to articles|1,000|1,000|1,000| |5|Pain and sufferings|1,00,000|25,000|15,000| |6|Compensation for loss of<br>dependency|6,00,000|4,50,000|5,00,000| |7|Compensation for loss of<br>care, company security<br>and service to the<br>petitioners|50,000|Nil|Nil| |8|Compensation for loss of<br>love,affection,<br>companionship,guidance<br>to the petitioners 1 to 4|4,00,000|1,00,000|40,000| |9.|Compensation for mental<br>agony and pain to the<br>petitioners|50,000|Nil|Nil| |10.|Compensation for loss of<br>estate|50,000|10,000|15,000| |11.|Total|13, 31,000<br>Claim<br>limited to<br>Rs.8,00,000|6,33,000<br>========|6,08,000<br>======| In the result, the appeal is allowed in part by holding that the appellant is only liable to pay a total amount of Rs.6,08,000/- instead of Rs.6,33,000/- awarded by the Tribunal with interest at the rate of 8% per annum from the date of petition till the date of realisation and **MACA.No.2448 OF 2014** **12** proportionate costs. The appellant shall deposit the compensation amount as directed by this Court, if not already deposited, with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the compensation to the respondents/petitioners, in accordance with law. ma/14.10.2020 Sd/- C.S.DIAS, JUDGE /True copy/ P.S to Judge