Kerala High Court

The Oriental Insurance Co.Ltd vs Rema Devi on 13 September, 2024

MACA NO.280/2018                      1



                                            2024:KER:69936

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

        THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.

FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946

                   MACA NO.280 OF 2018

ARISING OUT OF THE AWARD DATED 22.07.2017 IN OP(MV) NO.404
   OF 2011 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
                         MAVELIKARA
APPELLANT/3RD RESPONDENT:

         THE ORIENTAL INSURANCE CO.LTD.
         METRO PALACE, GROUND FLOOR, OPP. NORTH RAILWAY
         STATION, ERNAKULAM, REPRESENTED BY ITS DULY
         AUTHORIZED OFFICER.

         BY ADV SRI.VPK.PANICKER
RESPONDENTS:

    1    REMA DEVI
         W/O. LATE SREEKUMAR, SREE SADANAM, ORIPURAM,
         CHENNITHALA, MAVELIKKARA- 690105.

    2    SREERAJ S. KUMAR
         SREE SADANAM, ORIPURAM, CHENNITHALA,
         MAVELIKKARA- 690105.

    3    KARTHIKA (MINOR)
         D/O. LATE SREEKUMAR, SREE SADANAM, ORIPURAM,
         CHENNITHALA, MAVELIKKARA- 690105.

    4    M.K.GOPALAKRISHNA PILLAI
         S/O. KRISHNAN NAIR, MADEKATTIL PUTHEN VEEDU,
         KARAZHMA EAST, VALLYAKULANGARA P.O,
         MAVELIKKARA-690104.

    5    BHAGEERATHI AMMA
         W/O.M.K.GOPALAKRISHNA PILLAI, S/O. KRISHNAN NAIR,
 MACA NO.280/2018                  2



                                            2024:KER:69936

         MADEKATTIL PUTHEN VEEDU, KARAZHMA EAST,
         VALLYAKULANGARA P.O, MAVELIKKARA-690104 (MINOR
         3RD PETITIONER REP. BY NEXT FRIEND THE MOTHER
         REMA DEVI THE 1ST PETITIONER).

    6    SREEKUMARY SASIDHARAN
         W/O. S.D.KARNAVAR, H.NO. 92, DEEP NAGAR,
         KAJURI KALAN, APLANI, BHOPAL-462001.

    7    USHAKUMARI
         W/O. KRISHNANKUTTY NAIR, CHELEKKAD, PERINGARA,
         THIRUVALLA-689108.

    8    KRISHNA KUMAR
         S/O. GOPALAKRISHNA PILLAI, MADEKATTIL PUTHEN
         VEEDU, KARAZHMA EAST, VALIYAKULANGARA P.O,
         MAVELIKKARA-690104.

         BY ADVS.
         ARUN BOSE
         B.BIPIN
         R.REJI
         M.V.THAMBAN
         THARA THAMBAN



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 19.08.2024, THE COURT ON 13.09.2024 DELIVERED THE
FOLLOWING:
 MACA NO.280/2018                                3



                                                               2024:KER:69936


                                 JUDGMENT

Dated this the 13th day of September, 2024

This appeal arises from the Award dated 22.07.2017 in O.P.(M.V.)

No.404 of 2011 on the files of the Motor Accidents Claims Tribunal,

Mavelikara. Appellant Insurance Company was the 3rd respondent in the

said O.P.(M.V.). Respondents herein were the petitioners in the said O.P.

(M.V.).

Facts in Brief:

2. On 04.01.2011, at about 11.30 A.M, Sreekumar, aged 49 years,

while riding a motorcycle bearing Reg.No.KL-31/A-2653 along with

Krishnakumar as pillion rider, through the Mavelikara - Mannar public

road, upon reaching 300 meters north of Micheal Junction, met with an

accident. A bus bearing Reg.No.KL-31/A-3949 driven by the 2nd

respondent came from the opposite direction and collided with the

motorcycle. Sreekumar suffered fatal injuries and he died on the spot.

The wife, son, daughter and parents of the deceased filed the above O.P.

(M.V.) seeking compensation of Rs.35,62,750/- alleging that the accident

happened due to the rash and negligent driving of the bus driven by the

2nd respondent and owned by the 1st respondent in the O.P.(M.V.). The

appellant herein, viz.,the insurer of the bus was arrayed as the 3 rd

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respondent in the O.P.(M.V.). The legal representatives of the 4th

respondent (father of the deceased), who died during the pendency of

the O.P.(M.V.), were impleaded as additional petitioners 6 to 8 in the O.P.

(M.V.).

Proceedings before the Tribunal:

3. The owner and driver, the 1st and 2nd respondents in the O.P.

(M.V.) remained ex parte before the Tribunal. The appellant Insurance

Company filed a written statement admitting the insurance policy of the

bus as valid and subsisting during the relevant time. Appellant, however,

denied negligence of the 2nd respondent and contended that the accident

occurred due to the negligence of the deceased who was driving the

motorcycle. Appellant also challenged the amount of compensation

sought under various heads as being excessive and sought for the

dismissal of the O.P.(M.V.).

4. The Tribunal tried the above O.P.(M.V.) along with O.P.(M.V.)

No.405 of 2011, folded by the injured pillion rider. The Tribunal framed

four charges and the parties went to trial. No oral evidence was adduced

by either side. Respondents marked Exts.A1 to A12 documents in O.P.

(M.V.) No.405 of 2011 and Exts.A13 to A17 were marked in O.P.(M.V.)

No.404 of 2011.

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Award of the Tribunal:

5. The Tribunal vide Award dated 22.07.2017 allowed

compensation of Rs.27,27,631/- with interest @ 7.5% per annum from

the date of petition till realization with proportionate costs. The said Award

is challenged by the appellant Insurance Company in this M.A.C.A.

6. Heard Sri.V.P.K.Panicker, learned counsel appearing for the

appellant - Insurance Company and Sri.Thara Thamban, learned counsel

appearing for the respondents.

Submissions by the counsel:

7. Appellant's contentions in brief :

● The Award of the Tribunal is contrary to settled principles of law.

● The Tribunal erred in awarding Rs.1,00,000/- in compensation for

loss of consortium and Rs.1,00,000/- for loss of love and affection.

● The Tribunal overlooked the settled legal position that loss of love

and affection is comprehended within the loss of consortium, and

hence, compensation on account of love and affection as well as

loss of consortium cannot be granted. [Janabai WD/o Dinkarrao

Ghorpada and others v. ICICI Lambord Insurance Company

Ltd. [(2022) 10 SCC 512] ; Magma General Insurance Company

Ltd. v. Nanu Ram alias Chuhru Ram and others [(2018) 18 SCC

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130] ; United India Insurance Company Limited v. Satinder

Kaur alias Satwinder Kaur and others [2020 SCC Online SC

410]].

● The Tribunal ought to have noted that the amount to be awarded

for the loss consortium has to be as per the dictum in National

Insurance Co. Ltd. v. Pranay Sethi and others [(2017) 16 SCC

680].

● The Constitution Bench in Pranay Sethi (supra) recognized only

three conventional heads under which compensation can be

awarded: loss of estate, loss of consortium, and funeral expenses.

The Tribunal overlooked this settled position of law.

● The amount of Rs.25,000/- for funeral expenses granted by the

Tribunal is erroneous and unsustainable in view of the dictum laid

down in Pranay Sethi (supra). Compensation under the said head

could only have been Rs.15,000/-

8. Per contra, the learned counsel for the respondents submitted

that the Tribunal has rendered the award in accordance with law. The

Insurance Company's appeal is without merit and no interference is

called for in the award as sought therein.

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Discussions and findings

9. The Tribunal has awarded Rs.1,00,000/- under the head 'loss of

consortium' and a further amount of Rs. 1,00,000/- under the head 'loss

of love and affection'. There is a merit in the contention of the learned

counsel for the appellant that compensation would not lie under the said

two heads simultaneously. In Magma General Insurance Company's

case (supra), the Supreme Court interpreted "consortium" to be a

compendious term, which encompasses spousal consortium, parental

consortium, as well as filial consortium. The right to consortium would

include the company, care, help, comfort, guidance, solace and affection

of the deceased, which is a loss to his family. In Satinder Kaur's case

[2020 SCC Online SC 410], the Supreme Court held that :

"The Motor Vehicles Act, 1988 is a beneficial legislation which has been framed with the object of providing relief to the victims, or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium."

The Supreme Court in Satinder Kaur's case (supra) then proceeded to

consider the practice of awarding both loss of consortium and loss of love

and affection and held as follows:

"The amount to be awarded for loss consortium will be as per the amount fixed in Pranay Sethi (supra). At this stage, we consider it necessary to provide

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uniformity with respect to the grant of consortium and loss of love and affection. Several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi (supra), has recognized only three conventional heads under which compensation can be awarded viz., loss of estate, loss of consortium and funeral expenses. In Magma General (supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium. The Tribunals and High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head."

The Supreme Court reiterated the same legal position in New India

Assurance Company Ltd. v. Somwati and others (2020 SCC OnLine

SC 720). In view of the above, when compensation is awarded under the

head loss of consortium, no separate compensation can be awarded

under the head 'loss of love and affection'. Accordingly, the amount of

Rs.1,00,000/- awarded by the Tribunal under the head loss of love and

affection is to be deducted from the total compensation awarded.

10. As regards the compensation for 'loss of consortium', the

Supreme Court in Pranay Sethi's case (supra) has held as follows :

"It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not

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be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years."

In Rahul Ganpatrao Sable v. Laxman Maruthi Jadhav (2023 SCC

OnLine 780), the Supreme Court has held as follows:

"In the case of Pranay Sethi (supra), Constitution Bench of this Court had provided that all dependents should be separately awarded towards loss of consortium and had actually awarded Rs.40,000/- to each of the 22 dependents. Considering the same, an amount of Rs.40,000/- each is awarded to each of the four dependents towards loss of consortium."

Following the said dictum, the compensation for loss of consortium

awarded by the Tribunal is varied and refixed at Rs.2,00,000/- (40,000 x

5 = 2,00,000/-).

11. As regards funeral expenses, the Tribunal has awarded an

amount of Rs.25,000/-. Following the dictum in Pranay Sethi (supra), the

funeral expenses granted is reduced from Rs.25,000/ to Rs.15,000/-.

12. In light of the above, the appeal is disposed of modifying the

compensation granted under the relevant heads of the Award as

mentioned below:

 Compensation for love and affection is deleted.

 Compensation for loss of consortium is re-fixed at Rs.2,00,000/-

 Compensation for funeral expenses is reduced from Rs.25,000/- to

Rs.15,000/-.

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Conclusion:

13. After hearing both sides and appreciating the pleadings,

materials on record, and the settled law as per the precedents cited

above, I conclude that compensation granted under the Award is to be

modified and re-calculated as per the table below:

            Sl.   Head of Claim               Amount            Amount
            No.                               awarded by the    modified     and
                                              Tribunal (Rs.)    recalculated by
                                                                this Court (Rs.)

            1     Extra nourishment                     500/-             500/-
                  Damage to clothing

            2     Others including medical
                  expenses
                  Bystander's expenses               5,000/-            5,000/-
                  Ambulance Charges                 25,000/-           15,000/-
                  Funeral expenses
                  Misc.expenditure

            3     Pain and sufferings                     Nil                Nil


            4     Compensation for loss of    Rs.24,82,131/-     Rs.24,82,131/-
                  dependency

            5     Compensation for loss of:
                  Love and affection           Rs.1,00,000/                 Nil
                  Consortium                   Rs.1,00,000/-      Rs.2,00,000/-
                  Estate of the deceased        Rs.15,000/-        Rs.15,000/-

            6     Total                       Rs.27,27,631/-     Rs.27,17,631/-

14. The Award of the Tribunal is recalculated and re-fixed at

Rs.27,17,631/- under the respective heads as tabulated above. Amounts

granted under other heads in the Award remain unaltered. Respondents

in the M.A.C.A will be entitled to interest @ 7.5% per annum on the

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amount re-fixed in this appeal. The appellant shall deposit before the

Tribunal amounts payable, less the amounts already deposited, if any,

within a month from the date of this judgment. The Tribunal shall disburse

the amount if not already disbursed with interest and cost to the

respondents/ legal representatives in accordance with law.

M.A.C.A. stands disposed as above.

Sd/-