The New India Assurance Company Ltd v Suja Soni & Ors.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944** **MACA NO. 3398 OF 2014** **AGAINST THE AWARD DATED 20.5.2014 IN O.P.(MV) 589 OF 2010 IN THE** **MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA** ## **APPELLANT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE COMPANY LTD KATTAPPANA NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI – 11.** **BY ADVS.** **SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** **1 SUJA SONI W/O. LATE SONI, MARUTHOLIL HOUSE, KUTHUKALSSERI KARA, ANAVILASAM VILLAGE, UDUMBANCHOLA TALUK - 686 320. 2 ANNA SONI MINOR D/O. LATE SONI, MARUTHOLIL HOUSE, KUTHUKALSSERI KARA, ANAVILASAM VILLAGE, UDUMBANCHOLA TALUK - 686 320. 3 ALBERT SONI MINOR S/O. LATE SONI, MARUTHOLIL HOUSE, KUTHUKALSSERI KARA, ANAVILASAM VILLAGE, UDUMBANCHOLA TALUK - 686 320. 4 THRESSIAMMA W/O. JOSEPH, MARUTHOLIL HOUSE, KUTHURKALSSERI KARA, ANAVILASAM VILLAGE, UDUMBANCHOLA TALUK - 686 320.** **BY ADVS. SMT.C.SEENA SRI.P.P.THAJUDEEN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 3398 OF 2014** **2** ## **J U D G M E N T** This appeal has been filed against the award passed in O.P.(MV) No.589/2010 on the file of Motor Accidents Claims Tribunal, Thodupuzha. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the death of Sony, in a motor accident occurred on 22.07.2010 at about 4.30 p.m., while he was riding motor cycle through Kumily-Munnar Road due to hit by bus bearing registration No. KL 6C/2871 resulting in fatal injuries to the deceased. He was taken to the Medical College Hospital, Kottayam and on the way to the hospital he succumbed to the injuries. It is alleged that the accident happened due to the rash and negligent driving and excess speed of the bus. 1st respondent before the Tribunal is the owner of the offending vehicle and 3rd respondent is the insurer of the offending vehicle. Total compensation of Rs.10,00,000/- has been claimed. 2. Before the Tribunal, 1st and 2nd respondent remained ex-parte. 3. The 3[rd] respondent/insurer filed written statement admitting the policy coverage with respect to the offending **MACA NO. 3398 OF 2014** **3** vehicle. The rashness and negligence on the part of the 2[nd] respondent is denied. The compensation claimed under various heads are also disputed. 4. PW1 examined and Ext.A1 to A9 series were marked from the side of the respondents/claimants. Ext.B1 to B3 were marked on the side of the appellant/3[rd] respondent insurer. Tribunal on evaluation of the pleadings and other materials found that the accident happened due to the rash and negligent driving of the bus by the first respondent. Tribunal on evaluation of the pleadings and other materials, awarded total compensation of Rs. 35,56,000/-. 5. The compensation awarded by the tribunal under various heads are as follows: |Loss of Consortium|75,000/-| |---|---| |Loss of dependency|32,40,000/-| |Transportation expense|5,000/-| |Funeral Expense|20,000/-| |Damage to clothing|1,000/-| |Pain and suffering|15,000/-| |Loss of Love and affection|1,90,000/-| |Loss of estate|10,000/-| |**Total**|**Rs. 35,56,000/-**| **MACA NO. 3398 OF 2014** **4** 6. The appellant/3[rd] respondent insurer was held liable to make good the loss sustained by the 2[nd] respondent owner of the vehicle. 7. Aggrieved by the quantum of compensation awarded by the Tribunal, the 3[rd] respondent insurer approaches this Court in appeal. 8. Notice was issued to the respondents/claimants appeared through Adv. P. P. Thajudeen. Heard both sides. 9. When the appeal came up for hearing as per the order in IA No. 3946/2014 this Court granted interim stay on condition that the appellants will deposit 50% of the award amount within two months. 10. It is contended that original claim of respondents was for Rs. 10,00,000/- and the Tribunal awarded Rs. 35,56,000/-. It is also contended that the deceased was a supervisor in a private estate and monthly income of Rs. 15,000/- was claimed and Ext.A7 the salary certificate issued was proved by examining PW1 and the entire income claimed was taken by the Tribunal as the monthly income and 50% of it was added towards future prospects, which according to him is illegal. It is also contended that the compensation **MACA NO. 3398 OF 2014** **5** ought not have been awarded towards the love and affection, pain and suffering etc. as per the current position of law and seeks for interference on all those accounts. 11. In _**Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]**_ the Apex Court laid down the guidelines for determination of quantum of compensation in case of death in motor accident. It has been held that compensation awarded should be just compensation and that the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. The assessment of compensation though involve certain hypothetical considerations, should nevertheless be objective and justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication and fairness and uniformity in decision making process and the decisions. Though it is not possible to have a mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. 12. In _**National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]**_ a Constitution Bench of the **MACA NO. 3398 OF 2014** **6** Apex Court dealt with the concept of 'just compensation' and held that the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The concept of “just compensation” has to be viewed through the prism of fairness, reasonableness and non violation of the principle of equitability. It is also emphasized that the compensation should not be a windfall nor be a pittance. 13. In **Sarla Verma's** case the Apex Court made a rule of addition of 50% of actual salary in view of the imponderables and uncertainties towards future prospects where the deceased has permanent job and was below 40 years and the said addition was limited to 30% if the age of the deceased was 40 – 50 years and further it was prescribed that there should be no addition where the age of deceased is more than 50 years. 14. In **Pranay Sethi's** case, the Constitution Bench laid down that in case of self employed persons or persons **MACA NO. 3398 OF 2014** **7** with fixed salary there should be addition of 10% in between the age group of 50 – 60 years and an addition of 25% between the age group of 40 - 50 and 40% where deceased was below 40 years and it is also held that the established income also provided as the income minus tax component in the case of salaried persons. 15. In this case the deceased was 33 years at the time of accident. As per _**Sarla Verma**_ approved by _**Pranaya Sethi,**_ future prospects ought to have been awarded to the claimants is 40% instead of 50% awarded by the Tribunal. Rs.15,000/- as monthly income taken by the Tribunal is not further disputed. So, monthly income of the deceased would be Rs. 15,000 + Rs.6,000 (40% of 15,000/-) = Rs. 21,000/-. As per **Sarla Verma,** deduction towards personal and living expenses of the deceased would be 1/4, since the respondents are four in number. Suitable multiplier to be applied as per **Sarla Verma** is '16' since the deceased was 33 years old. So total amount would come to Rs. 21,000 X 12 X 16 = Rs. 40,32,000/-, from that 1/4 to be deducted that is Rs.10,08,000/-. So the balance amount would be Rs. 30,24,000/-. So the compensation towards loss of **MACA NO. 3398 OF 2014** **8** dependency would be Rs.30,24,000/- instead of Rs.32,40,000/- awarded by the Tribunal. 16. Next is with regard to conventional heads. The Tribunal awarded Rs.20,000/- towards funeral expenses, Rs.1,50,000/- + Rs.40,000/- towards loss of love and affection as well as Rs.75,000/- towards loss of consortium. Rs.10,000/- was also awarded towards loss of estate. As per **Pranay Sethi** , the claimants are entitled to get Rs.15,000/towards loss of estate and Rs.40,000/- towards loss of consortium as well as Rs.15,000/- towards funeral expenses. It is also made specific that the above amounts would be revisited in every three years. **Rasmita Biswal & Ors. v. Divisional Manager, National Insurance Co. Ltd & Anr. [CDJ 2021 SC 1024]** is a case in which the accident occurred on 09.05.2013. In that decision, the Apex Court under the conventional heads, following the principles in **Pranay Sethi,** found that appellants are entitled for 10% enhancement on Rs.15,000/- towards loss of estate and Rs.40,000/- towards spousal consortium. In **Magma General Insurance Co. Ltd v. Nanu Ram Alias Chuhru Ram & Ors. : 2018 (18) SCC 130,** the Apex Court expanded the term **MACA NO. 3398 OF 2014** **9** consortium to 'parental consortium', 'spousal consortium' and 'filial consortium'. So, all the respondents in this case being wife, children and mother of the deceased, are entitled for consortium. That is, Rs.44,000 x 4 = Rs.1,76,000/-. Respondents are also entitled to get Rs.16,500/- towards loss of estate as well as Rs.16,500/- under the head funeral expenses. Once compensation is awarded towards consortium, respondents are further not entitled to get any compensation towards love and affection. But, in this case, Tribunal awarded Rs.1,90,000/- (Rs.1,50,000 + Rs.40,000) towards loss of love and affection. An amount of Rs.20,000/- is also awarded towards funeral expenses. So, the respondents are entitled to get Rs.2,09,000/- (Rs.1,76,000 + Rs.33,000) towards conventional heads. It has also come out that, on the way to the hospital, the deceased succumbed to the injuries. So, Rs.15,000/- awarded towards pain and suffering also has to be deducted since the death is instantaneous. The amount of Rs.5,000/- awarded towards transportation expenses and Rs.1,000/- towards damage to clothing can be maintained. So, in total, respondents are entitled to get Rs.30,24,000/- towards loss of dependency, **MACA NO. 3398 OF 2014** **10** Rs.2,09,000/- under conventional heads, Rs.5,000/- towards transportation charges and Rs.1,000/- towards damage to clothing i.e. **Rs.32,39,000/-** [Rs.30,24,000 + 2,09,000 + 5,000 + 1,000] instead of Rs.35,56,000/- awarded by the Tribunal. 17. In the result, appeal allowed modifying the compensation to **Rs.32,39,000/** - (Rupees thirty two lakhs thirty nine thousand only). The appellant is directed to pay the modified compensation granted in this appeal, together with interest @ 6%, deducting the amount towards balance court fee, if any, as well as 50% of the amount deposited before the Tribunal as per order of this Court dated 08.01.2015 in I.A. No. 3946 of 2014 within a period of two months from the date of receipt of certified copy of this judgment. 18. The disbursement of additional compensation to the respondents shall be made taking note of the law on the point and in terms of the directives issues by this Court in Circular No.3 of 2019 dated 6.9.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 7.11.2019. The respondents shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank **MACA NO. 3398 OF 2014** **11** Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Sd/- **M.R.ANITHA JUDGE** LU