Vasu vs United India Insurance Company ...
2021 Latest Caselaw 20378 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
                       ST
         FRIDAY, THE 1    DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
                          MACA NO.2629 OF 2017
AGAINST THE ORDER/JUDGMENT IN OPMV 912/2015 OF MOTOR ACCIDENT CLAIMS
                     TRIBUNAL, KOZHIKODE, KOZHIKODE
APPELLANT/S:

     1      VASU,
            S/O.ARIYAN, AGED 53 YEARS, KOZHIPPURAT MEETHAL,
            KEEZHARIYOOR P.O., NADUVATHUR, KOZHIKODE.

     2      REENA,
            W/O.VASU, AGED 48 YEARS, KOZHIPPURATH MEETHAL,
            KEEZHARIYOOR P.O., NADUVATHUR, KOZHIKODE.

     3      ABILASH,
            S/O.KUMARAN, AGED 34 YEARS, PADINJARACHLIL MEETHAL,
            MENHANNIAM, PERAMBRA, KOZHIKODE.

            BY ADV SRI.V.N.RAMESAN NAMBISAN



RESPONDENT/S:

            UNITED INDIA INSURANCE COMPANY LIMITED,
            RAMEEZE ARCADE, CHEROOTY ROAD,
            NEAR C.H.FLY OVER, KOZHIKODE, PIN-673 001.

            BY ADV SRI.P.V.JYOTHI PRASAD




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON   01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 M.A.C.A.2629/17                         2




                                   JUDGMENT

This is an appeal filed by the claimants seeking enhancement of

compensation. O.P.(MV).No.912 of 2015 was filed by the appellants

seeking compensation for the death of one Vincy, who was aged 21

years, due to the injuries sustained in a motor accident occurred on

17.12.2014. According to the appellants, the accident occurred when

the autorikshaw on which she was traveling capsized and she was

thrown out to the road. Vehicle was owned by the 1 st respondent,

driven by the 2nd respondent and the same was insured with the 3 rd

respondent. The appellants are the parents and the husband of the

deceased. According to the appellants, the deceased was working as

a lab technician with a monthly income of Rs.10,000/-. As

compensation, the appellants claimed an amount of Rs.20,00,000/-.

2. The 3rd respondent insurance company filed a written

statement admitting the coverage of policy for the vehicle but denied

the liability on various grounds. The quantum of compensation was

also seriously disputed by them. Evidence in this case consists of

Exts.A1 to A8 from the side of the appellants and Exts.B1 to B3 from

the side of the respondent.

3. After the trial, the Tribunal passed an award allowing a

total compensation of Rs.4,55,000/- and directed the 3 rd respondent

to deposit the said amount along with interest at the rate of 9% per

annum. Being dissatisfied with the quantum of compensation, this

appeal is filed.

4. Heard both sides.

5. The learned counsel for the appellants contends that the

Tribunal has not awarded any compensation for loss of dependency.

The finding of the Tribunal in this regard is that as per the family

membership certificate produced as Ext-A5, parents and husband are

legal heirs and they are not entitled for loss of dependency, since

they were not dependents of the deceased. According to the learned

counsel, it is an erroneous finding, which requires reconsideration.

Learned counsel for the appellants placed reliance upon the

judgment rendered by this Court in United India Insurance

Company v. Shalumol [2021 (5) KHC 28] to contend that the

finding of the Tribunal in this regard is erroneous.

6. It is evident from the observations in the award that

despite the fact that, the appellants were found to be parents and

husband of the deceased, the compensation for dependency was

denied to them, on the ground that, they were not dependents. In my

view the said finding is not legally sustainable. As per section 166 of

the Motor Vehicles Act, 1988, all or any of the legal representatives

of the deceased can file an application for compensation. Proviso to

section 166 contemplates that, if all the legal representatives are not

joined in the said petition, the same shall be filed on behalf of and for

the benefits of all the legal representatives and the legal

representatives who have not so joined shall be impleaded as

respondents in the application. Thus from the said provision, it is

evident that, legal representatives are entitled to file an application

for compensation. Conspicuously, none of the provisions in the Motor

Vehicles Act, 1988 contemplates actual dependency, as a criteria for

assessment of compensation. In National Insurance Company Ltd

v. Birender ((2020) 11 SCC 356), the Honourable Supreme Court

considered the entitlement of married earning sons of the deceased,

to claim compensation and the following observations were made.

"14. The legal representatives of the deceased could move application for compensation by virtue of clause

(c) of Section 166(1). The major married son who is also earning and not fully dependent on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus:- "9. In terms of clause (c) of sub-section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub-section makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the

deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act.

10. .....The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.

11. According to Section 2(11) CPC, "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g).

12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [1989 Supp (2) SCC 275 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not

be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". As observed in Gujarat SRTC v. Ramanbhai Prabhatb hai [(1987) 3 SCC 234 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child."

In paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act.

Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning.

15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependent on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/- and Rs.1,50,000/- per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years."

7. In the case of Shalumol (Supra) a Single Bench of this

court considered the above question elaborately, after referring to

various judgments and legislative history of the provisions relating to

motor vehicle accident compensation in para 51 of the said judgment

it is observed as follows:

"51. Even if dependency is a relevant criterion to claim compensation for loss of dependency, it does not mean financial dependency is the 'ark of the covenant'. Dependency includes gratuitous service dependency, physical dependency, emotional dependency, psychological dependency, and so on and so forth, which can never be equated in terms of money."

8. There is yet another reason which prompts me to set aside

the said finding. It is discernible from the records that, the deceased

was an earning member of the family. She was working as a lab

technician, which stands established as per Ext.A7 salary certificate.

Her qualification is also evident from Ext.A8 certificate. Therefore,

being an earning member, she was contributing to the income of the

family and consequent to her death that source of income is lost. In

such circumstances, it has to concluded that, to that extent the

appellants were depending upon her income. The fact that the

husband having another source of income is not a matter which

would prevent them from claiming compensation for loss of

dependency. The dependency need not necessarily a mere financial

dependency. It can also be an emotional dependency, dependency of

personal care and attention, love etc. While considering an

application under section 166 for death of a person, the attempt of

the court is to make good the loss suffered by them on all grounds

on account of the death of the victim, to the extent possible in terms

of monetary compensation. In that view of the matter, all the

appellants have to be treated as dependents for the purpose of

computing the compensation for loss of dependency. In such

circumstances, I am of the view that the finding entered into by the

Tribunal in this regard is unsustainable and accordingly the said

finding of the Tribunal is set aside and I hold that the appellants are

entitled for compensation for loss of dependency.

7. It is seen from the award that the Tribunal has fixed the

monthly income of the deceased as Rs.7,000/-. Even though Ext.A7

salary certificate was relied upon, wherein her salary was shown as

Rs.10,000/-, the Tribunal did not accept the same, on the ground that

it was not properly proved by the appellants. In my view, even in the

absence of any evidence as to the income, the amount of Rs.7,000/-

taken by the Tribunal in respect of an accident in the year 2014 is

very low. In Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Co.Ltd [(2011) 13 SCC 236] , the

Honourable Supreme Court fixed the monthly income of a coolie

as Rs.4,500/- in respect of an accident occurred in the year

2004. In Syed Sadiq v. Divisional Manager, United India

Insurance Company [(2014) 2 SCC 735] the Honourable Supreme

Court was pleased to take Rs.6,500/- as the monthly income of a

vegetable vendor in respect of an accident in the year 2008. Going

by the said standards, the monthly income claimed by the appellants

i.e Rs.10,000/- cannot be treated as an unreasonable figure,

particularly because the accident occurred in the year 2014.

Moreover, it is evident from Exts.P7 and P8 that she is qualified as a

lab technician. In such circumstances, I am inclined to fix the

monthly income as Rs.10,000/-. As the deceased was within the age

group of below 40 years, an addition of 25% of the monthly income

has to be adopted towards future prospectus as held in National

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

680]. The multiplier applicable is 18 and the deduction to be

made towards personal expenses is 1/3 rd . Thus, while fixing the

compensation with the above criteria, it comes to Rs.18,00,000/-

[Rupees eighteen lakhs only] [(10000+25%) x 12 x 18 x /3].

When considering the other heads of compensation awarded by

the Tribunal, it can be seen that an amount of Rs.3,00,000/- has

been awarded as compensation for loss of love and affection.

Since the Honourable Supreme Court categorically held in

United India Insurance Co Ltd V. Satinder Kaur @

Satwinder Kaur and other [2020 (3) KHC 760], that when

compensation is awarded for loss of consortium, no amount is to

be awarded under the head of loss of love and affection. In this

case, an amount of Rs.1,00,000/- has been awarded towards loss

of spousal consortium to the 3rd respondent husband. In the

said judgment, it was also held that, in respect of death of a

person, spouse will be entitled for compensation for spousal

consortium and the parents shall be entitled for filial

consortium. The amount fixed by the Honourable Supreme

Court is Rs.40,000/- each. In this case, the 1 st and 2nd

appellants are the parents and the 3rd appellant is the husband

of the deceased. In such circumstances, all the appellants are

entitled for compensation at the rate of an amount of

Rs.40,000/- each, under the head of filial as well as spousal

consortium. The amount of Rs.1,00,000/- awarded by the

Tribunal to the 3rd respondent is thus revised as Rs.1,20,000/-,

which shall be paid to all the appellants at the rate of

Rs.40,000/- each. As compensation is awarded for loss of

consortium, the amount of Rs.3,00,000/- awarded by the

Tribunal for loss of love and affection is set aside. Similarly, the

amounts awarded under the head of funeral expenses and loss

of estate are Rs.25,000/- each and the said amounts are in

excess, since the amounts fixed by the Honourable Supreme

Court in Pranay Sethi (supra) under these heads is Rs.15,000/-

each. Hence, the said heads are also refixed as Rs.15,000/-

each.

8. In such circumstances, the appellants shall be entitled

for a further sum of Rs.15,00,000/- [Rupees fifteen lakhs only]

[(1800000+1,20,000)-(1,00,000+3,00,000+10000+10000)].

The respondent insurance company is directed to deposit the

said amount along with interest at the rate of 9% per annum and

proportionate costs within a period of three months from the date of

receipt of a copy of this judgment.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

DG/4.10.21