Madras High Court

M/S.Royal Sundaram General ... vs Shenbagalakshmi on 14 December, 2021

                                                                        C.M.A. No.2439 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 14.12.2021

                                                    CORAM

                     THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
                                         and
                        THE HONOURABLE MR. JUSTICE V.SIVAGNANAM

                                             C.M.A. No.2439 of 2021
                                            and CMP.No.13893 of 2021


                M/s.Royal Sundaram General Insurance Company Limited,
                Tiruchirapalli,
                Rep. by its Branch Manager,
                Having its office at,
                No.5-G, Laurance Road,
                Bus Plaza, Cantonment,
                Trichirappalli 620 001,
                Trichirappalli District.                                       ...appellant

                                                      Vs.
                1. Shenbagalakshmi
                2. Dhanushkumar (minor)
                3. Keerthika (minor)
                  [Respondents 2 and 3 minors rep. by
                   mother and next friend first respondent]
                4. Saroja
                5. N.K.Ilangovan                                            ...respondents

                          Prayer: Civil Miscellaneous Appeal filed under Section 173 of
                Motor Vehicle Act, 1988 against the judgment and decree made in
                MCOP.No.10 of 2018, dated 14.02.2020 of the file of the Motor Accidents
                Claims Tribunal, Sessions Court, Fast Track Mahila Court, Nagapattinam.

https://www.mhc.tn.gov.in/judis
                Page No.1/11
                                                                                C.M.A. No.2439 of 2021

                                   For Appellant           : Ms.C.Harini
                                                             for M/s.M.B.Raghavan
                                   For Respondents         : Mr.S.T.P.Kuilmozhi

                                                    JUDGMENT

[Judgment of the Court was delivered by V.SIVAGNANAM, J]

The appeal is heard through video conferencing.

2. This appeal arises out of the award dated 14.02.2020 passed by the

Motor Accidents Claims Tribunal, Sessions Court, Fast Track Mahila Court,

Nagapattinam in MCOP.No.10 of 2018.

3. The facts that are necessary for disposal of the case would run

thus:-

i) On 27.03.2016 at about 09.30 p.m., the deceased Kumaravel was

riding his two wheeler bearing Registration No.TN-51-6050 on

Kuravapulam Angalamman Temple Road. At that time, a Lorry bearing

Registration No.TN-20-BZ-7436 belonging to the fifth respondent, was

parked in the middle of the road without any indicator, hence, the deceased

dashed against the stationed Lorry. Due to the impact, the deceased

sustained severe head injury and died on the spot. A case was registered

against the driver of the fifth respondent's vehicle in Vedaranyam Police

Station in Crime No.72 of 2016.

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ii) According to the claimants, the deceased was 35 years old at the

time of the accident and was working as Mason and earning Rs.750/- per

day. Hence, they laid a claim petition claiming a sum of Rs.25,00,000/- as

compensation.

4. The Insurance Company resisted the claim petition disputing the

manner of accident, age, occupation and income of the deceased and also

their liability to pay the compensation. Thus prayed for dismissal of the

claim petition.

5. To substantiate the claim on the side of the claimants, PW1 and

PW2 were examined and Exs.P1 to P14 were marked. On the side of the

Insurance Company RW1 was examined and Exs.R1 to R4 were marked.

6. The Tribunal, after analysing the entire evidence on record, came

to the conclusion that the accident had occurred due to the negligent

parking of the driver of the fifth respondent's vehicle and directed the

Insurance Company to pay a compensation of Rs.28,65,320/- to the

claimants with 7.5% interest per annum. The break-up details of the

amounts awarded by the Tribunal under various heads are as follows:

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S.No. Heads under which amount is Amount in Rs.

                                                awarded by the Tribunal
                                  1.      Loss of Dependency                   25,60,320
                                  2.      Loss of Consortium                      40,000
                                  3.      Loss of Love and Affection            2,25,000
                                          to claimants 2 to 4
                                  4.      Loss of Estate                          15,000
                                  5.      Transportation                          10,000
                                  6.      Funeral Expenses                        15,000
                                          Total                                28,65,320

7. Though very many contentions have been raised in this appeal, the

main grievance of the learned counsel for the appellant/Insurance Company

is that the Tribunal, while awarding compensation under the head "Loss of

Love and Affection" had granted an excessive amount of Rs.2,25,000/- to

the claimants 2 to 4. As per the oft-quoted judgment of the Supreme Court

in the case of Magma General Insurance Company Limited vs. Nanu

Ram alias Chuhru Ram and others reported in (2018)2 TN MAC 452

(SC), only a sum of Rs.40,000/- has to be awarded to each of the legal heirs

of the deceased towards "Loss of Love and Affection". Hence, the amount

awarded by the Tribunal under the head "Loss of Love and Affection" may

be re-calculated by awarding a sum of Rs.40,000/- to each of the claimants.

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8. The learned counsel appearing for the respondents 1 to 4/claimants

submitted that the amount awarded by the Tribunal under the head Loss of

Love and Affection is fair and reasonable, which does not any interference

by this Court.

9. Heard both sides and perused the materials available on record.

10. The grievance of the learned counsel for the appellant/Insurance

Company is only with regard to the amount awarded towards Loss of Love

and Affection, hence, we need not go into other aspects of the award of the

Tribunal.

11. As rightly pointed out by the learned counsel for the appellant that

in the present case, the Tribunal had awarded an exorbitant amount of

Rs.2,25,000/- towards "Loss of Love and Affection". It is relevant to note

that in Magma General Insurance Company Limited vs. Nanu Ram alias

Chuhru Ram and others reported in (2018)2 TN MAC 452 (SC), the

Hon'ble Apex Court has awarded consortium to the wife, parents and minor

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children of the deceased. The relevant paragraph of the said decision is

extracted hereunder:-

“8.7. A Constitution Bench of this Court in Pranay Sethi dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.

In legal parlance, “consortium” is a compendious term which encompasses 'spousal consortium', parental consortium', and '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. With respect to a spouse, it would include sexual relations with the deceased spouse, (Rajesh and Ors. vs. Rajbir Singh and Ors, (2013)9 SCC 54) Spousal consortium is generally defined as rights pertaining to the relationship of a husband wife which allows compensation to the surviving spouse for loss of “company, society, cooperation, affection, and aid of the other in every conjugal relation. “ (BLACK'S LAW DICTIONARY (5TH ED 1979)) Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training.” Filial consortium is the right of the parents to compensation

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in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, compensationship and their role in the family unit. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions worldover have recognized that the value of a child's consortium for exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companianship of the deceased child.

The Motor Vehicles Act is a beneficial legislation aimed at 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. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.

A few High Courts have awarded compensation on this count (Rajasthan High Court in Jagmala Ram @ Jagmal

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Singh & Ors. V. Sohi Ram & Ors (2017)4 RajLW 3368 (Raj); Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep Kumar & Ors, (2014)3 UC 1687; Karnataka High Court in Lakshman and Ors. v. Susheela Chand Choudhary & Ors. (1996)3 KarlJ 570 (DB). However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.

The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under 'Loss of Consortium' as laid down Pranay Sethi.

In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs.40,000/- each for loss of Filial Consortium.”

12. Following the decision referred to supra, this Court set asides the

amount of Rs.2,25,000/- awarded by the Tribunal towards Loss of Love and

Affection and instead awards Rs.1,20,000/- under that head by awarding

each a sum of Rs.40,000/- to the claimants 2 to 4. In addition to that the

amounts awarded by the Tribunal, viz., Rs.25,60,320/- towards Loss of

Dependency; Rs.40,000/- towards Loss of Consortium; Rs.15,000/- towards

Loss of Estate; Rs.15,000/- towards Transportation; and Rs.15,000/-

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towards Funeral Expenses, are confirmed. In total, the claimants are entitled

to Rs.27,60,320/- as compensation along with interest at the rate of 7.5%

per annum from the date of claim petition till the date of realization. Thus,

the total compensation payable to the claimants is re-calculated and

tabulated below:

S. Heads under which Amounts awarded by Amounts awarded No. amounts are awarded the Tribunal in Rs. by this Court in Rs.

                     1.     Loss of Dependency                    25,60,320            25,60,320
                     2.     Loss of Consortium                       40,000               40,000
                     3.     Loss of Love and Affection             2,25,000             1,20,000
                     4.     Loss of Estate                           15,000               15,000
                     5.     Transportation                           10,000               10,000
                     6.     Funeral Expenses                         15,000               15,000
                            Total                                 28,65,320            27,60,320

13. In view of the above modifications, the Civil Miscellaneous

Appeal is partly allowed. The appellant/Insurance Company is directed to

deposit the above modified award amount with accrued interest and costs,

less the amount already deposited, if any, within a period of eight weeks

from the date of receipt of a copy of this judgment. On such deposit, the

major claimants 1 and 4 are permitted to withdraw their respective shares of

the award amount, less the amount already withdrawn, if any, together with

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proportionate interest and costs. Insofar as the claimants 2 and 3/minor

children of the deceased are concerned, their respective shares shall be

deposited by the Tribunal in any Fixed Deposit Scheme in any one of the

Nationalised Banks and it shall be renewed periodically till they attain

majority and the interest accrued thereon shall be withdrawn by the first

claimant/mother once in three months. The apportionment of shares as fixed

by the Tribunal to the claimants remains unaltered. No costs. Consequently,

connected Miscellaneous Petition is closed.




                                                                  [M.K.K.S, J] [V.S.G., J]
                                                                        14.12.2021
                Index      : Yes / No
                Speaking order: Yes/No
                pvs


                To