The New India Assurance Company Limited v. Vasudevan Panchami House and Savathri Deven (MACA Nos. 2204/2013, 2205/2013, 2189/2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940** **M.A.C.A.No. 2204 of 2013** **AGAINST THE AWARD IN OPMV 437/2010 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM DATED 10-07-2013** ## **APPELLANT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE COMPANY LIMITED OTTAPALAM NOW REPRRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G ROAD, KOCHI 11** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** **1 VASUDEVAN PANCHAMI HOUSE, MUNDAKKOTTUKURUSSI, SHORNUR 2, OTTAPALAM TALUK 678320** - **2 SAVATHRI DEVEN** **W/O VASUDEVAN, MUNDAKKOTTUKURUSSI, SHORNUR-2, OTTAPALAM TLAUK 678320** **BY ADV. SRI.P.JAYARAM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.10.2018, ALONG WITH MACA.2189/2013, MACA.2205/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 2204,2205 & 2189 of 2013** 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940** **M.A.C.A.No. 2189 of 2013** **AGAINST THE AWARD IN OP(MV) 438/2010 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM DATED 10-07-2013** ## **APPELLANT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE COMPANY LIMITED OTTAPALAM NOW REPRESENTED BY ITS MANAGER,REGIONAL OFFICE, M.G.ROAD, KOCHI -11** **BY ADV. SRI.MATHEWS JACOB (SR.)** ## **RESPONDENTS/PETITIONERS:** **1 DHANYA W/O.LATE P.P.DEEPAK, KIZHAKKEETTIL VEEDU, ("KARTHIK"), KAVALAPPARA, SHORNUR, OTTAPALAM TALUK, PIN - 678 320. 2 THANKAMANI P.O. W/O.K.KRISHNAN, "KARTHIK", KAVALAPPARA, SHORNUR OTTAPALAM TALUK, PIN - 678 320. 3 KRISHNAN "KARTHIK", KAVALAPPARA, SHORNUR, OTTAPALAM TALUK, PIN - 678 320. BY ADV. SRI.P.JAYARAM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.10.2018 ALONG WITH MACA.2204/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 2204,2205 & 2189 of 2013** 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940** **MACA.No. 2205 of 2013** **AGAINST THE AWARD IN OPMV 998/2009 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM DATED 10-07-2013** ## **APPELLANT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE COMPANY LIMITED OTTAPALAM NOW REPRESENTED BY ITS MANAGER,REGIONAL OFFICE,M.G.ROAD,KOCHI-11.** **BY ADV. SRI.MATHEWS JACOB (SR.)** ## **RESPONDENTS/PETITIONERS:** - **1 THEYYUNNI K S/O.GOVINDAN NAIR,KIZHAKKATTIL HOUSE,KAVALAPPARA,OTTAPALAM TALUK,PIN-678320.** - **2 REMANI W/O.THEYYUNNI.K,KIZHAKKATTIL HOUSE,KAVALAPPARA,OTTAPALAM TALUK-678320.** **BY ADV. SRI.P.JAYARAM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.10.2018, ALONG WITH MACA.2204/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No. 2204,2205 & 2189 of 2013** 4 ## **JUDGMENT** **[ MACA 2204/2013 AND MACA.2205/2013 ]** The learned counsel submitted that, he is not interested in prosecuting MACA Nos.2204/2013 and 2205/2013 and both appeals are not pressed. In the light of above submission, these appeals are dismissed for non-prosecution. **SD/P.D.RAJAN, JUDGE.** ACM/17.10.2018 **M.A.C.A.No. 2204,2205 & 2189 of 2013** 5 ## **JUDGMENT** ## **[ MACA.2189/2013 ]** This appeal is preferred against the award in OP(MV) 438 of 2010 of the Motor Accidents Claims Tribunal, Ottapalam by the insurer. The deceased Deepak was riding a motor cycle with two pillion riders on 9.8.2009 at 6 p.m, when they reached at the place of occurrence, another bus bearing Registration No.KL 9/P9681 driven in a rash and negligent manner and dashed against the motor cycle. As a result, rider and pillion riders sustained serious injuries on the way to the hospital, they succumbed to the injuries. The legal representatives of the deceased preferred OP(MV)438/18 under Section 166 of the Motor Vehicle Act and the Motor Accidents Claims Tribunal awarded Rs.13,82,000/- as compensation to them. 2. This case OP(MV) 438/2010 was tried along with OP(MV)998/2009 and 437/2010 in the lower court, but the driver and the owner of the bus were ex parte in the lower court, and the owner of the motor cycle was also ex parte. Insurer admitted ## **M.A.C.A.No. 2204,2205 & 2189 of 2013** 6 the insurance of both vehicles. The above claims were tried jointly. Evidence consists of oral testimony of PW1 and PW2 and their documents were marked as Exts.A1 to A20. Respondents did not adduce any oral evidence. 3. The learned counsel appearing for the appellant contended that the deceased was travelling in a motor cycle as a pillion rider. The rider of the Motor cycle was riding with two pillion riders without helmet and there was contributory negligence. The tribunal failed to appreciate that fact hence compensation amount may be reduced. The learned Tribunal took Rs.6,000/- as his monthly income and added 50% towards future prospects which is illegal.The amount awarded towards loss of consortium and funeral expenses are excessive and that amount has to be reduced. 4. 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 **M.A.C.A.No. 2204,2205 & 2189 of 2013** 7 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 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, **M.A.C.A.No. 2204,2205 & 2189 of 2013** 8 ## 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. 5. In death case, the measure of damage is towards the pecuniary losses, which is to be suffered by the dependents as a result of the fatal accident. But the assessment of damages to the dependents is beset with difficulties 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. The legal representatives of the deceased contended that the deceased was working abroad, but his income was taken ## **M.A.C.A.No. 2204,2205 & 2189 of 2013** 9 as Rs.6,000/- alone. But they admitted that in view of **Rajesh and Others v. Raybir Singh (2013 ACJ 1403)** , Tribunal added . 50% towards future prospects. In **Pranay Sethi (Supra)** contribution towards future prospects is 40%. The deceased was 35 years at the time of his death, who was working abroad and getting more than Rs.20,000/- per month, hence tribunal took 6000/- as his income. The claimant's did not adduce any evidence before Court to prove the income. No Cross Objection is filed by the claimants in this case and no appeal has been preferred against the award. Adding 40% the income is Rs.(6000x2400). The dependency compensation is 10,75,200/- (8400x12x16x1/3). The Motor Accidents Claims Tribunal awarded Rs.11,52,000/-. Hence, Rs.76,800/- has to be deducted. 7. 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 **M.A.C.A.No. 2204,2205 & 2189 of 2013** 10 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'. 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 **M.A.C.A.No. 2204,2205 & 2189 of 2013** 11 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 amount awarded to the parents is a **M.A.C.A.No. 2204,2205 & 2189 of 2013** 12 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) _and in Magma's case (Supra)._ In view of **Pranay** **M.A.C.A.No. 2204,2205 & 2189 of 2013** 13 **Sethi (Supra)** Rs.10,000/- from funeral expenses has to be reduced, but no amount was awarded towards loss of estate. The claimants are entitled to get Rs.1,20,000/- towards Loss of Consortium, the tribunal awarded Rs.1,00,000/- and balance amount is Rs.20,000/-, they are entitled to get Rs.1,50,000/towards loss of love and affection the tribunal awarded Rs.1,00,000/-, balance amount is Rs.50,000/- .They are entitled to get Rs.15,000/- for loss of estate. The claimants are entitled to get enhanced compensation but in the absence of any Cross Objection no increase in the awarded amount is necessary. There is no merit in this appeal and this MACA is dismissed accordingly. **SD/-** ACM / 5.11.2018 **P.D.RAJAN JUDGE**