Abdulla C.T vs M/S. Royal Sundaram Alliance ...
2021 Latest Caselaw 15472 Ker

MACA No.264 of 2015                  1

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
         FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
                          MACA NO. 264 OF 2015
  AGAINST THE ORDER/JUDGMENT IN OPMV 713/2009 OF DISTRICT COURT &
   SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD, KASARGOD
APPELLANTS/PETITIONERS:

     1       ABDULLA C.T
             AGED 38 YEARS
             S/O.MUHAMMED DAVOOD, M.K.HOUSE, MANIYAT P.O., CHANDERA,
             KASARAGOD DISTRICT.

     2       K.M.SAJINA
             AGED 26 YEARS
             D/O.JALALUDDIN, MUNDAKUNDIL, M.K.HOUSE, MANIYAT P.O.,
             CHANDERA, KASARAGOD DISTRICT.

             BY ADV SRI.M.V.AMARESAN

RESPONDENT/3RD RESPONDENT:

             M/S. ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED
             D1, IIND FLOOR AMRITHA TOWERS, KPCC JUNCTION, OPP.
             MAHARAJA GROUNDS, M.G.ROAD, KOCHI, PIN - 682 011.

             BY ADVS.
             SRI.P.JACOB MATHEW
             SRI.MATHEWS JACOB SR.
             SMT.PREETHY R. NAIR


     THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA No.264 of 2015               2

                            JUDGMENT

This appeal is filed by the petitioners in OP (MV) No.713/2009

on the file of the Motor Accidents Claims Tribunal, Kasargod. The

said claim petition was filed by the Appellants herein, seeking

compensation for the death of their son, who was aged only 4

months, due to the injuries sustained to him in a motor accident

occurred on 15/07/2009. According to them, on that unfortunate

day, the deceased boy was travelling in an autorikshaw along with

the parents, and when they reached the spot of accident, it was

collided with a car. The said car was being driven by the 2 nd

respondent, owned by the 1st respondent and was insured with the

3rd respondent. As compensation, they claimed an amount of

₹ 3 lakhs.

2. Respondent Nos. 1 and 2 have filed a written statement

jointly, wherein it was contended that the accident was not due to

the rash and negligent driving by the 2nd respondent, as claimed in

the original petition. If at all they were found to be responsible to

pay the compensation, the same has to be recovered from the 3 rd

respondent- Insurance Company, as the vehicle was validly insured

with them at the relevant time.

3. The 3rd respondent Insurance Company filed a written

statement admitting the coverage of insurance policy for the car

involved in the accident, but disputed the liability on various

grounds. The quantum of compensation was also disputed by them.

4. The evidence in this case consists of Exhibits A1 to A4,

from the side of the appellants. 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 the negligent driving of

the 2nd respondent and hence the 1st respondent being the owner of

the vehicle is vicariously liable to pay the compensation. As the said

vehicle was insured with the 3rd respondent, they were directed to

deposit the amount of compensation. The quantum of compensation

was fixed as Rs 2,97,500/-and the said amount was directed to be

deposited by the 3rd respondent along with interest at the rate of

8% per annum. This appeal is filed by the appellants, being

dissatisfied with the quantum of compensation and seeking

enhancement thereof.

5. Heard both sides. The main contention urged by the

learned counsel for the appellants is that the quantum of

compensation awarded by the Tribunal is grossly inadequate. He

relies upon the decision rendered by this Court in National

Insurance Company Ltd Vs K.K.Assainar (2019 (4) KLT 39)

wherein this Court after referring to large number of decisions

rendered by the Hon'ble Supreme Court, stipulated guidelines for

awarding compensation in the cases of death of children. On the

other hand, learned counsel for the Insurance Company seriously

opposes the said prayer by contending that the amount awarded by

the Tribunal is reasonable and no interference is warranted.

6. As pointed out by the learned counsel for the appellants,

in the case of Assainar (supra) this Court dealt with in detail, by

referring to large number of judicial precedents and arrived at a

clear conclusion as to the manner in which compensation has to be

worked out in respect of death of children. In the said decision, this

Court has considered the children below the age of 6 years and the

children between the age group of 6 years to 15 years as separate

categories and contemplated for different yardsticks for assessment

of compensation for loss of dependency. The relevant observations

made by this Court in the said judgment reads as follows:

"13.As far as the cases involving death of children below the age of 6 are concerned, as the compensation payable to their parents is the present value of the prospective services and pecuniary benefits expected from the deceased children, the parents of such children cannot be equated with the parents of

school going children up to the age of 15, for, they cannot expect services and pecuniary benefits from the children in the near future as in the case of the parents of the children in the age group of 6 to 15. Further, unlike the parents of school going children, the parents of children below the age of 6 may not have spent amounts for the education and related matters of their children, so as to maintain a legitimate and reasonable expectation of services and pecuniary benefits in future from their children. A different yardstick is, therefore, to be fixed for computing compensation for loss of dependency in their cases. If multiplier method cannot be applied in such cases, only a consolidated amount can be granted by way of compensation.

14. Prescription of a mode for arriving at the consolidated amount of compensation payable in such cases is a difficult task. It is difficult also for the reason that the mode prescribed shall satisfy the concept of just compensation and maintain uniformity in the compensation granted in identical and similar cases. As mentioned earlier, in the context of death of children in the age group of 6 to 15 also, evidence is not let in, in most of the proceedings and compensation is arrived at subjectively by the Tribunals having regard to the statements made in the claim petitions. As in the cases involving death of children in the age group of 6 to 15, except in exceptional cases where the children under this group are earning during their minority and positive evidence is let in, in the proceedings to establish the prospective services and pecuniary benefit expected from them, all cases involving death of children below the age of six years shall be considered, according to me, alike. As the parents cannot expect services and pecuniary benefits from such children in the near future, the compensation provided for in terms of S.163A of the Act for the claimants in cases involving death of children, subject to a progressive addition from year to year, according to me, would satisfy the

requirement of just compensation in their cases. The compensation prescribed in terms of S.163A of the Act for the claimants in a case involving death of a child is Rs.2,40,000/- (See Kumari Sree Devi v. The Managing Director, K.S.R.T.C. (2011 (3) KHC 484 : 2011 (3) KLT 716 : 2011 (3) KLJ 538 : ILR 2011 (3) Ker.671)). S.163A was introduced on 14/11/1994. The amount specified therein can, therefore, be granted certainly, except in exceptional cases as compensation in the case of children in this category in respect of claims arose during the years 1994 and 1995. S.163A of the Act has now been amended with effect from 22/05/2018 and the compensation prescribed in terms of the amended provision is Rs.5,00,000/-. If a sum of Rs.12,000/- is added progressively every year after 1995 to the compensation prescribed under the said provision initially namely Rs.2,40,000/-, the same would sync with the compensation prescribed under the provision after the amendment as well. In cases involving death of children in that age group after the 2018 amendment to S.163A, compensation can be fixed appropriately on the basis of the compensation prescribed under S.163A namely Rs.5,00,000/-, after offsetting the effect of inflation on the real value of money. If compensation is computed in cases involving death of children below the age of 6 in the aforesaid manner, I am of the view that the same would not only satisfy the requirement of just compensation but also ensure uniformity in the awards passed in similar and identical cases. The question is answered accordingly."

From the observations in the above decision, it can be seen that, a

uniform procedure has been introduced by this Court, by taking into

account the amendment brought into the statute in the year 1994

and also taking into account the impact of inflation, on the amounts

fixed as per the said amendment, while assessing the compensation

for the period after the amendment was brought in. For the said

purpose, a scientific data was also relied on, namely, cost inflation

index determined and notified by the Ministry of Finance,

Government of India. I am in full agreement with the guidelines

formulated by this Court through the judgment above. As per the

said judgment, an amount of Rs 2,40,000/- has to be fixed as the

basic compensation for loss of dependency for the year 1995 and

the said amount has to be revised in respect of the accidents

occurred in subsequent years, by making an addition of ₹12,000/-

per year. I am of the view that, the method of computation as

contemplated in the said judgment is scientific and hence can be

adopted for computing the compensation in this case.

7. Coming to the facts of this case, it can be seen that this

is a case in which accident occurred in the year 2009. By making

the assessment of compensation for loss of dependency as per the

guidelines mentioned in the case of Assainar (Supra), it would come

to ₹ 408,000/- [240000+(12000X14)]. The amount awarded by the

Tribunal under this head is Rs 2,70,000/- only. Hence the appellants

shall be entitled for a further amount of ₹1,38,000/-under this head.

Moving onto the compensation under other heads, it can be seen

that no amounts were awarded by the Tribunal under the heads of

loss of consortium and loss of estate. Similarly amount awarded

under the head of funeral expenses is on lower side. It is true that,

in the claim petition no amounts were claimed for loss of estate and

loss of consortium. However, we cannot forget the fact that,

provisions relating to compensation under the Motor Vehicles Act,

are part of a welfare legislation which are intended to protect the

interest of the victims of motor accident. It is a well settled the

position of law, through various judicial proceedings that, the

attempt of the courts should be to ensure "just compensation" to

the victim, and even if the amount claimed is below the just

compensation determined, the victim cannot be deprived of such

higher amount, merely because of the reason that, the claimed

amount was low. In other words, there is no restriction in granting

compensation in excess of the amount claimed in the petition, but

on the other hand, the focus of the courts should be to ensure "just

compensation". The various heads under which compensation can be

granted are also clearly set out through judicial precedents including

the judgment of the Hon'ble Supreme Court in National

Insurance Company Ltd. v. Pranay Sethi [2017(4)KLT

662], As per the said decision, in the cases of death, the

dependents shall be entitled to compensation at the rate of ₹

15,000 each for loss of estate and funeral expenses. In this case, no

amount is granted towards loss of estate and hence ₹ 15,000/-is

granted. Regarding the amount under the head of funeral expenses,

the amount awarded is ₹10,000 only and hence a further sum of

₹5000/-is awarded. Next aspect is relating to loss of consortium. It

is true that earlier, the amounts used to be awarded under this head

was only to the wife as it was commonly understood as spousal

consortium. However, in the case of United India Insurance

Co.Ltd. v. Satinder Kaur @ Satwinder Kaur and

Others (AIR 2020 SC 3076) the Hon'ble Supreme Court

clearly held that, both the parents of the deceased shall be entitled

for filial compensation at the rate of ₹40,000/- each. In such

circumstances, the Appellant shall be entitled for a sum of

₹ 80,000/-(40,000x2) under that head.

Thus, the appellants shall be entitled for an amount of

Rs.2,38,000/- (138000+15000+5000+80000), in addition to the

amount awarded by the Tribunal. The 3rd respondent is directed to

deposit the said amount along with interest and proportionate costs

as ordered by the Tribunal, within a period of three months from the

date of receipt of copy of the judgment. Appeal is disposed of

accordingly.

Sd/-

ZIYAD RAHMAN A.A., JUDGE pkk