Kerala High Court
National Insurance Co. Ltd vs Kanaka Velayudhan on 2 December, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
ND
FRIDAY, THE 2 DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
RP NO. 973 OF 2022
MACA 2217/2009 OF HIGH COURT OF KERALA
REVIEW PETITIONER/2ND RESPONDENT:
NATIONAL INSURANCE CO. LTD.,
135-1, ROSE BUILDING, MAIN ROAD,
KOVILPATTI - 620501, TAMILNADU.
BY ADV JOE KALLIATH
RESPONDENTS/APPELLANTS, 1ST RESPONDENT
AND RESPONDENTS 3 TO 6:
1 KANAKA VELAYUDHAN, AGED 49 YEARS, W/O. LATE N.K. VELAYUDHAN,
NEDIYACHIRAYIL HOUSE, TRICHATTUKULAM P.O., ALAPPUZHA DISTRICT,
PIN - 688581.
2 K. VIDYA, AGED 27 YEARS, D/O. LATE N.K. VELAYUDHAN,
NEDIYACHIRAYIL HOUSE, TRICHATTUKULAM P.O., ALAPPUZHA DISTRICT,
PIN - 688581.
3 N.V. VINEESH, AGED 18 YEARS, S/O. LATE N.K. VELAYUDHAN,
NEDIYACHIRAYIL HOUSE, TRICHATTUKULAM P.O., ALAPPUZHA DISTRICT.,
PIN - 688581.
4 A. JAFFER SHATICK, S/O. ABOOBACKER, 578, M.S. ROAD,
KRISHNAN COIL, NAGAR COIL, KANYAKUMARI DISTRICT, PIN - 629001.
5 SUNIL, S/O. SAJIMON, ILLIPARAMBIL HOUSE, PANAVALLY P.O.,
CHERTHALA, ALAPPUZHA DISTRICT, PIN - 688526.
6 V.P. ANTONY, S/O. PATHROSE, VALIYAVEETTIL HOUSE,
PALLIPURAM DISTRICT, PIN - 688541.
7 NATIONAL INSURANCE CO. LTD., TRIPUNITHURA BRANCH, PIN - 682306.
8 SUDALAIMADAN, S/O. M. SUNDARAM,
1/81, ATTANIMARKULAM, NALLOOR P.O.,
SUCHINDRAM VIA, KANYAKUMARI DISTRICT, PIN - 629162
R1 TO R3 BY ADV K.V.RAJAN
SRI. LAL GEORGE, STANDING COUNSEL
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 02.12.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.P.No.973 of 2022 2
ORDER
This review petition has been filed by the 2nd respondent-National
Insurance Co. Ltd. in MACA No.2217 of 2009.
2. They are seeking review of the impugned judgment, on the
ground that appellants 2 and 3 in the appeal (respondents 2 and 3 in
the review petition), who are the siblings of the deceased Vinod, were,
in fact, not eligible to get compensation for loss of consortium; but this
Court awarded Rs.44,000/- each to them under the head loss of
consortium, and it is an error apparent on the face of record which has
to be corrected. They are placing reliance on the decision Kunjandy
L. and Others Vs. Rajendran and Others reported in [2020 (2) KLT
315].
3. Heard learned counsel Sri.Joe Kalliath appearing for the
review petitioner and learned counsel Sri.K.V.Rajan appearing for
contesting respondents 1 to 3.
4. Paragraph 43 of Kunjandy L. and Others Vs. Rajendran
and Others [2020 (2) KLT 315] reads as follows:
"43. The concept of spousal consortium to the surviving
spouse; parental consortium to the children of the
deceased; and filial consortium to the parents of the
deceased child laid down by the Apex Court in Magma
General Insurance Company Ltd. does not speak
anything as to the right of siblings to get compensation
under the head loss of consortium. In Magma, after
noticing the fact that the mother of the deceased had
pre-deceased him, his father was aged 65 year old, his
sister was unmarried, and the deceased was contributing
a part of his meagre income to the family for their
sustenance and survival, the Apex Court granted a sum
of Rs.40,000/- as compensation to unmarried sister of
the deceased under the head filial consortium, after
maintaining the compensation (Rs.50,000/- x 2)
awarded by the High Court towards loss of love and
affection, which can only be treated as a direction issued
by the Apex Court in exercise of its powers under
Art.142 of the Constitution of India to do proper justice
and the exercise of such power cannot be considered as
law laid down by the Apex Court under Art.141 of the
Constitution of India."
5. In the light of the law laid down in Kunjandy's case cited
(supra), the respondents 2 and 3 were not eligible to get
compensation under the head 'loss of consortium'. So the review
petition is liable to be allowed reviewing the impugned judgment to
that extent.
6. In the result, the review petition is allowed, reducing
Rs.88,000/- from the amount awarded under the head 'loss of
consortium' and fixing the same @ Rs.44,000/-, i.e., the filial
consortium awarded to the mother of the victim. Since Rs.10,000/-
was already paid, she is eligible to get the balance amount of
Rs.34,000/- under the head 'loss of consortium'. It is made clear that
there is no other change in the compensation amount enhanced by
this Court in the above appeal, and the aggregate amount of enhanced
compensation is re-fixed as Rs.2,65,000/- after deducting the excess
amount of Rs.88,000/- awarded under the head 'loss of consortium'.
The review petitioner shall deposit the enhanced compensation
on same condition and direction made by this Court in paragraph 13 of
the impugned judgment. The review petition is allowed accordingly
and no order is made as to costs.
Sd/- Sd/-
SOPHY THOMAS
JUDGE
DSV/03.12.2022.
