Kerala High Court

The New India Assurance Company ... vs Satheesan on 30 July, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                  THE HONOURABLE MR.JUSTICE C.S.DIAS
         FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
                           MACA NO. 175 OF 2018
 AGAINST THE ORDER/JUDGMENT IN OP(MV) 1421/2010 OF ADDITIONAL MOTOR
              ACCIDENTS CLAIMS TRIBUNAL-II, MAVELIKKARA
APPELLANT/3RD RESPONDENT:

            THE NEW INDIA ASSURANCE COMPANY LIMITED
            CHENGANNUR 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      SATHEESAN,
            S/O. SHANMUGHAN PILLAI, PUTHEN VEETTIL, EDAPPON MURI,
            NOORANADU VILLAGE, VIA KAYAMKULAM, PIN - 690 504.

     2      USHA KUMAR,
            W/O. SATHEESAN, PUTHEN VEETTIL, EDAPPON MURI, NOORANADU
            VILLAGE, VIA KAYAMKULAM, PIN - 690 504.

     3      SHYAM KUMAR,
            S/O. SATHEESAN, PUTHEN VEETTIL, EDAPPON MURI, NOORANADU
            VILLAGE, VIA KAYAMKULAM, PIN - 690 504.

            BY ADV JAWAHAR JOSE




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 175 OF 2018           2




                        JUDGMENT

The appellant - insurer was the 3rd respondent in

OP(MV) No.1421 of 2010 on the file of the Additional

Motor Accidents Claims Tribunal-II, Mavelikkara. The

respondents in the appeal were the petitioners before the

Tribunal. The parties are, for the sake of convenience,

referred to as per their status in the claim petition.

2. The petitioners had filed claim petition under

Section 166 of the Motor Vehicles Act, 1988, claiming

compensation on account of the death of their minor

daughter Sreelekshmi (deceased) - daughter of the

petitioners 1 and 2 and the sister of the 3 rd petitioner -

who was aged 9 years on the date of her death. The

petitioners had averred that, on 9.9.2009, while the

deceased along with her classmates were returning home

through the Pandalam - Mavelikara public road, a tipper

lorry bearing Reg.No.KL-4S-9746 driven in a rash and

negligent manner ran over the children. The respondents

1 to 3 before the Tribunal were the driver, owner and

insurer of the tipper lorry. The petitioners claimed a total

compensation of Rs.7,00,000/-

3. The 1st respondent did not contest the

proceedings. The 2nd respondent filed a written statement

denying negligence on the part of the 1st respondent, but

attributed negligence on the part of the children.

Nevertheless, it was contended that the lorry had a valid

insurance coverage with the 3rd respondent.

4. The 3rd respondent filed a written statement

admitting that the lorry had a valid insurance coverage.

The 3rd respondent re-iterated the same contentions as

that of the 2nd respondent, that it was due to the

negligence of the children that the accident was caused.

Hence, it was prayed that the claim petition be dismissed.

5. The parents and siblings of two other children,

who lost their lives in the same accident, filed OP(MV)

Nos.1239 of 2010 and 1421 of 2010, and a child who got

injured in the accident filed OP(MV) No.1289 of 2010

before the same Tribunal.

6. The Tribunal consolidated and jointly tried all the

original petitions. The petitioners produced and marked

Exts.A1 to A22 in evidence in all the cases. The

respondents did not let in any evidence.

7. The Tribunal, after analysing the pleadings and

materials on record, by its common award allowed all the

claim petitions. In the captioned case, the Tribunal

permitted the petitioners to realise from the 3 rd

respondent an amount of Rs.7,31,060/- with interest @ 9%

per annum from the date of petition till the date of deposit

and a cost of Rs.10,000/- .

8. Aggrieved by the impugned award, the insurer is

in appeal.

9. Heard, Sri. Mathews Jacob, the learned Senior

Counsel appearing for the appellant/3 rd respondent and

Sri. Jawahar Jose, the learned counsel appearing for the

respondents/petitioners.

10. Sri. Mathews Jacob argued that the

compensation awarded by the Tribunal is on the higher

side. The Hon'ble Supreme Court has in a recent decision

in Rajendra Singh and Others v. National Insurance

Company Ltd.,and Others [(2020) 7 SCC 256)] held

that the notional income of minor children has to be fixed

at Rs.36,000/- per annum and one half of the

compensation has to be deducted towards the personal

living expenses of such deceased children and the

multiplier has to be fixed at '15'. In light of the

parameters laid down in the said decision, the quantum of

compensation awarded is on the higher side. Similarly,

the Tribunal has awarded higher compensation under the

conventional heads than what is permitted in National

Insurance Company v. Pranay Sethi [(2017) 16 SCC

680]. It was also contended that the rate of interest fixed

by the Tribunal at 9% was exorbitant and not in line with

the decision of the Hon'ble Supreme Court in T.N.State

Transport Corporation Ltd., v. S. Rajapriya and

others [(2005) 6 SCC 236]. He hence submitted that

the compensation may be reduced in consonance with the

law laid down in the aforecited decisions.

11. Sri.Jawahar Jose, the learned counsel appearing

for the respondents vehementally countered the

arguments of the learned Senior Counsel by placing

reliance on the decision of this Court in National

Insurance Company Ltd., v. K.K.Assainar and others

[(2019) KHC 685], wherein this Court, after taking into

account the cleavage of opinion by the Hon'ble Supreme

Court and different High Courts in the matter of fixing the

notional income of minor children, has succinctly laid

down an uniform guideline to be adopted by the Tribunals

and Courts while fixing the notional income of minor

children. The said view has been reiterated by another

learned single judge of this Court in Ali and another v.

Abdul Jabbar and another (2020 SCC online Kerala

5539).

12. The learned counsel relying on Ali (supra)

argued that the observations made by the Hon'ble

Supreme Court in Rajendra Singh (supra) and Kishan

Gopal and another v. Lala and others [(2013) KHC

4667 SC] are rendered under the peculiar facts and

circumstances of those cases, and are not authoritative

precedents to be followed in each and every case. He

relied on State of Punjab v. Rafeeq Masih [(2014) 8

SCC 883] wherein the Hon'ble Supreme Court has

observed that directions issued under Article 142 of the

Constitution of India do not constitute a binding precedent

unlike directions passed under Article 141 of the

Constitution of India. Hence, it was contended that the

law laid down in Assainar and Ali (supra) govern the field

so far as the fixation of a notional income of minor

children is concerned.

13. The short question that arises for consideration

in this appeal is whether the fixation of notional income

and consequential awarding of compensation is

reasonable and just ?

14. The Tribunal following the ratio decidendi in

New India Assurance Company Ltd., v. Vijayan and

Others (2016 (1) KHC 575) fixed the notional income of

the deceased child at Rs.4,000/- per month, but deducted

1/3rd of the income towards the personal living expenses of

the child. The said view was taken by the Tribunal before

the authoritative pronouncement in Assainar and Ali

(supra)

15. Assainar was pronounced by this Court due to

the cleavage of opinion and divergent views taken by

different Tribunals and Courts across the Country, which

has led to a state of confusion as to the parameter to be

followed while fixing the notional income of children. We

seen that in certain cases an amount of Rs.3,000/- is taken

with the multiplier at '15', and in certain cases it is

observed that 1/3rd has to be deducted towards personal

living expenses. Judicial discipline and consistency are

hallmarks in the justice delivery system. In order to infuse

uniformity and consistency this Court laid down normative

guidelines to be adopted by Tribunals and Courts in the

above regard. I am in complete argument with the

notional income fixed in the ready reckoner in paragraph

18 of Assainar (supra) fixing the notional income for the

years 1995-1996 to 2018-2019 and thereafter. I do hereby

concur with the above fixation.

16. In the present case, since the accident occurred

in the year 2009-2010, as per the ready reckoner an

amount of Rs.54,000/- has to be fixed as the notional

income of the deceased, the multiplier to be adopted is

'15', and 1/3rd of the amount has to be deducted towards

personal living expenses, with no amount towards future

prospects.

17. Following the bench mark in Assainar, I hold

that the respondents/petitioners are only entitled to an

amount of Rs.5,40,000/- i.e.,(54,000 x 15 - 1/3 rd) as

compensation towards loss of dependency of the

deceased.

18. In addition to the above amount, following the

direction in Clause (viii) of paragraph 61 of Pranay Sethi

(supra), I hold that the respondents/petitioners are also

entitled to compensation under the conventional heads,

namely, Rs.30,000/- as compensation under the heads 'loss

of estate' and 'funeral expenses' and Rs.80,000/- towards

filial consortium.

Compensation towards love and affection

19. This Court in. Kunjandy.L and others v.

Rajendran and others (2020(2) KLT 315) has held

that once compensation is awarded under the head 'loss of

consortium', no compensation can be awarded under the

head 'loss of love and affection', as it would amount to

overlapping of compensation. Therefore, I set aside the

amount of Rs.2,00,000/- awarded under the head 'loss of

love and affection'.

Compensation towards pain and sufferings

20. In United India Insurance Company Ltd. v.

Satinder Kaur @ Satwinder Kaur and others (2020

(3) KHC 760) the Hon'ble Supreme Court has held that

the dependents of the deceased are not entitled for

compensation under the head 'pain and sufferings'. In

view of the said ratio, I set aside the amount of 10,000/-

awarded by the Tribunal under the said head.

21. The compensation awarded for transportation

expenses and damage to clothing are found to be

reasonable and just.

22. On a comprehensive re-appreciation of the

pleadings and materials on record and the law laid down

in the aforecited decisions, I hold that the compensation

awarded by the Tribunal in the impugned award is on the

higher side and has to be modified and reduced as held

above and given in the table below for easy reference.

Head of claim            Amount          Amounts
                         Awarded by      modified and
                         the Tribunal    recalculated
                         (in Rs.)        by this Court

Funeral expenses         25,000/-        15,000/-



Transportation            5,000/-         5,000/-
expenses

Damage to clothing 1,000/-                1,000/-

Pain and sufferings 10,000/-              -

Love and affection        2,50,000/-      -

Loss of estate            10,000/-        15,000/-

Loss of consortium -                      80,000/-

Loss    due             to 4,80,060/-     5,40,000/-
dependency

Total                     7,81,060/-      6,56,000/-

23. The Tribunal has awarded interest @ of 9% per

annum. In light of the law laid down in T.N.Tranport

Corporation Ltd. (supra), I hold that the

respondents/petitioners are only entitled to interest @

7.5% per annum on the compensation amount.

In the result, the appeal is allowed, by holding that

the respondents/petitioners are only entitled to an amount

of Rs.6,56,000/- instead of Rs.7,81,060/- awarded by the

Tribunal with interest on it at 7.5% per annum.

Accordingly, I direct the appellant/3rd respondent to pay

the respondents/petitioners an amount of Rs.6,56,000/-

with interest at the rate of Rs.7.5 % per annum from the