Kerala High Court
The Oriental Insurance Co. Ltd vs Martin Xavier on 10 October, 2024
2024:KER:77095
MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
MACA NO. 345 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 10.02.2020 IN OPMV NO.203 OF
2019 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH PARAVUR
APPELLANT/3RD RESPONDENT:
THE ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, JYOTHI SUPER BAZAR, THOUPUZHA,
PIN-685 584, REPRESENTED BY ITS REGIONAL MANAGER,
REGIONAL OFFICE, ERNAKULAM NORTH,KOCHI-18.
BY ADVS.
GEORGE CHERIAN (SR.)
SRI.ALEXY AUGUSTINE
SRI.GEORGE A.CHERIAN
RESPONDENT/PETITIONER:
MARTIN XAVIER, AGED 53 YEARS
S/O XAVIER, KALAPPARAMBIL HOUSE, KARTHEDAM KARA,
MALIPPURAM P.O., ELAMKUNNAPUZHA VILLAGE, PIN-682
511.
BY ADV SRI.A.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 10.10.2024, ALONG WITH MACA NOS.342/2021 & 3310/2020
and Cross Objection Nos.75/2021 in MACA No.345/2021 & 77/2021
in MACA No.342/2021 & 79/2021 in MACA No.3310/2020, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:77095
MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
MACA NO. 342 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 10.2.2020 IN OPMV NO.202 OF
2019 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH PARAVUR
APPELLANT/3RD RESPONDENT:
THE ORIENTAL INSURANCE CO. LTD
DIVISIONAL OFFICE, JYOTHI SUPER BAZAR, THODUPUZHA,
PIN 685 584 REPRESENTED BY ITS REGIONAL MANAGER,
REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI 18
BY ADVS.
GEORGE CHERIAN (SR.)
SRI.GEORGE A.CHERIAN
SRI.ALEXY AUGUSTINE
RESPONDENT/PETITIONER:
MARTIN XAVIER
AGED 53 YEARS
S/O. XAVIER, KALAPPARAMBIL HOUSE, KARTHEDAM KARA,
MALIPPURAM P.O, ELAMKUNNAPUZHA VILLAGE, PIN 682
511
BY ADV SRI.A.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 10.10.2024, ALONG WITH MACA.345/2021 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:77095
MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
CO NO. 77 OF 2021
IN MACA NO.342/2021
FILED AGAINST ORDER/JUDGMENT DATED 10.2.2020 IN OP(MV)
202/2019 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR
CROSS OBJECTOR/RESPONDENT IN MACA 342/2021:
MARTIN XAVIER
AGED 53 YEARS, S/O.XAVIER, KALAPPARAMBIL HOUSE,
KARTHEDAM KARA, MALIPPURAM P.O, ELAMKUNNAPUZHA
VILLAGE, PIN 682 511, ERNAKULAM DISTRICT.
BY ADVS. A.N.SANTHOSH
RESPONDENT/APPELLANT IN MACA 342/2021 :
THE ORIENTAL INSURANCE COMPANY LTD.
DIVISIONAL OFFICE, JYOTHI SUPER BAZAR, THODUPUZHA,
PIN 685 584, REPRESENTED BY ITS REGIONAL MANAGER,
REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI 28.
BY ADVS.
GEORGE CHERIAN (SR.)
ALEXY AUGUSTINE
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD
ON 10.10.2024, ALONG WITH MACA.342/2021 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:77095
MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
CO NO. 75 OF 2021
IN MACA NO.345 OF 2021
FILED BEFORE THIS COURT AGAINST THE ORDER/JUDGMENT DATED
10.2.2020 IN OP(MV) NO.203/2019 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,
NORTH PARAVUR.
CROSS OBJECTOR/RESPONDENT IN THE MACA/PETITIONER:
MARTIN XAVIER
AGED 53 YEARS
S/O. XAVIER, KALAPPARAMBIL HOUSE, KARTHEDAM KARA,
MALIPPURAM P.O, ELAMKUNNAPUZHA VILLAGE - 682511,
ERNAKULAM DISTRICT.
BY ADV A.N.SANTHOSH
RESPONDENT/APPELLANT:
ORIENTAL INSURANCE COMPANY LTD
DIVISIONAL OFFICE, JYOTHI SUPER BAZAR, THODUPUZHA
- 685584, REPRESENTED BY ITS REGIONAL MANAGER,
REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI - 682038.
BY ADV ALEXY AUGUSTINE
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD
ON 10.10.2024, ALONG WITH MACA.345/2021 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:77095
MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
MACA NO. 3310 OF 2020
AGAINST THE ORDER/JUDGMENT DATED 10.02.2020 IN OPMV NO.201 OF
2019 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL,
NORTH PARAVUR
APPELLANT/3RD RESPONDENT:
THE ORIENTAL INSURANCE CO.LTD
DIVISIONAL OFFICE, JYOTHI SUPER BAZAR, THODUPUZHA,
PIN-685584, REPRESENTED BY ITS REGIONAL MANAGER,
REGIONAL OFFICER, ERNAKULAM NORTH, KOCHI-18.
BY ADVS.
GEORGE CHERIAN (SR.)
SRI.ALEXY AUGUSTINE
SRI.GEORGE A.CHERIAN
RESPONDENT/PETITIONER:
MARTIN XAVIER
AGED 53 YEARS
S/O.XAVIER, KALAPPARAMBIL HOUSE, KARTHEDAM KARA,
MALIPPURAM P.O., ELAMKUNNAPUZHA VILLAGE, PIN-
682511.
BY ADV SRI.A.N.SANTHOSH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 10.10.2024, ALONG WITH MACA.345/2021 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:77095
MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021
6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
CO NO. 79 OF 2021
IN MACA NO.3310/2020
FILED AGAINST THE ORDER/JUDGMENT DATED 10.2.2020 IN OP(MV)
NO.201/2019 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR
CROSS OBJECTOR/RESPONDENT IN THE MACA:
MARTIN XAVIER
AGED 53 YEARS
S/O.XAVIER, KALAPPARAMBIL HOUSE, KARTHEDAM KARA,
MALIPPURAM P.O., ELAMKUNNAPUZHA VILLAGE-682511,
ERNAKULAM DISTRICT.
BY ADV A.N.SANTHOSH
RESPONDENT/APPELLANT IN THE MACA:
THE ORIENTAL INSURANCE COMPANY LTD.
DIVISIONAL OFFICE, JYOTHI SUPER BAZAR, THODUPUZHA-
685584, REPRESENTED BY ITS REGIONAL MANAGER,
REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-682018.
BY ADVS.
GEORGE CHERIAN (SR.)
ALEXY AUGUSTINE
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD
ON 10.10.2024, ALONG WITH MACA NO.3310/2020 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:77095
MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021
7
"C.R"
JUDGMENT
[MACA Nos.345/2021, 342/2021 & 3310/2020 and Cross Objection Nos.75/2021 in MACA No.345/2021 & 77/2021 in MACA No.342/2021 & 79/2021 in MACA No.3310/2020] (Dated this the 10th day of October, 2024) This order shall dispose of three appeals preferred by the Insurance Company and three cross objections filed by the claimant.
2. Three claim petitions arising from one single accident were tried together, and the Motor Accidents Claims Tribunal, North Paravur, passed a common award. The Insurance Company has preferred the above appeals challenging the quantum, whereas the claimant filed cross objections seeking enhancement of the compensation awarded.
3. The brief facts for the disposal of the appeals and the cross objections are as follows:
On 6.11.2018 at about 11 a.m., the wife of the claimant, Smt.Shyji Martin, was riding a scooter bearing registration No.KL-42/K-1581 along the Vypin-Munambam road from North to South along with her two minor children, aged 8 and 10 years, as pillion riders in the said 2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 8 scooter. When they reached Schoolmuttam, a goods vehicle bearing registration No.KL-46/M-1291 driven in a rash and negligent manner came from the opposite direction and hit on the scooter. Due to the collision, Smt.Shyji Martin and her daughter died on the same day. Her son died on the next day. The claimant contended that Smt.Shyji Martin was working as an Accountant and was earning Rs.20,000/- per month.
The appellant-Insurance Company appeared and filed a written statement denying the allegations in the claim petitions. The allegation that the driver of the offending vehicle, KL-46/M-1291, was negligent, which resulted in the accident, was denied. On behalf of the claimant, Exts.A1 to A13 were marked. There were no oral or documentary evidence produced on the side of the parties.
4. Two claim petitions, namely OP(MV) Nos.201/2019 and 202/2019 were preferred, claiming compensation due to the death of the minors. OP(MV) No.203/2019 was preferred seeking compensation for the death of Smt.Shyji Martin.
MACA No.3310/2020 & Cross Objection No.79/2021 and MACA No.342/2021 & Cross Objection No.77/2021
5. These appeals and cross objections are preferred against the findings rendered by the Motor Accidents Claims Tribunal, North Paravur in OP(MV) Nos.201/2019 and 202/2019 dated 10.2.2020.
2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 9 These claims were preferred on account of the death of two minor children and hence would be dealt with at the first instance by this Court. The Tribunal after noticing the fact that the accident occurred on 6.11.2018, followed the Second Schedule and fixed the notional income for the financial year 2018-19 at Rs.1,02,000/- and deducted 1/3rd towards the personal expenses and applied the multiplier '15', and granted the compensation. In respect of the claim under OP(MV) No.201/2019, the Tribunal awarded compensation under the following heads:
Sl. Head of claim Amount Amount awarded
No. claimed(Rs.) (Rs.)
1 Transportation expenses 25,000/- 10,000/-
2 Damage to clothing and articles 5,000/- 2,000/-
3 Funeral expenses 50,000/- 15,000/-
4 Pain and sufferings 3,00,000/- -
5 Loss of dependency 20,00,000/- 10,20,000/-
6 Loss of estate 2,00,000/- 15,000/-
7 Compensation for loss of love and 2,00,000/- --
affection
8 Medical expenses 1,00,000/- --
9 Compensation for loss of care, 1,00,000/- --
company etc.
10 Compensation for mental agony 1,00,000/- --
Total 30,80,000/- 10,62,000/-
limited to
Rs.20,00,000/-
The compensation awarded by the Tribunal with respect to the claim under OP(MV) No.202/2019 is as follows:
Sl. Head of claim Amount Amount
No. claimed(Rs.) awarded (Rs.)
2024:KER:77095
MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 10 1 Transportation expenses 25,000/- 10,000/- 2 Damage to clothing and articles 5,000/- 2,000/- 3 Funeral expenses 50,000/- 15,000/-
4 Bystander expenses - 1,000/-
5 Pain and sufferings 3,00,000/- -
6 Loss of dependency 20,00,000/- 10,20,000/- 7 Loss of estate 2,00,000/- 15,000/-
8 Compensation for loss of love and 2,00,000/- --
affection 9 Medical expenses 1,00,000/- 54,900/-
10 Compensation for loss of care, 1,00,000/- --
company etc. 11 Compensation for mental agony 1,00,000/- --
Total 30,80,000/- 11,17,900/-
limited to
Rs.20,00,000/-
6. Heard Sri.George A.Cherian, the learned counsel appearing for the appellant-Insurance Company and Sri.A.N.Santhosh, the learned counsel appearing for the claimant.
7. The learned counsel appearing for the appellant-Insurance Company raised two-fold submissions; (a) The Tribunal ought to have deducted ½ of the amount towards the personal expenses instead of 1/3rd since there was only one claimant, and (b) the Tribunal ought not to have fixed the notional income at Rs.1,02,000/- per year and ought to have fixed the notional income of a minor at Rs.3,000/- per month or in the alternative, should have followed the principles laid down by the Hon'ble Supreme Court in Meena Devi v. Nunu Chand Mahto @ Nemchand Mahto and Others [2022 KHC 7080], wherein the principle of global compensation was applied and accordingly fixed the 2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 11 compensation by the Apex Court. He also relied on the judgment rendered by this Court in Preethu v. Sukumaran P. [MACA No.595/2021 dated 6.9.2024], wherein the global compensation method was followed and Rs.6,00,000/- was granted as compensation.
8. On the other hand, the learned counsel appearing for the claimant, Sri.A.N.Santhosh, submitted that the Tribunal has fixed the compensation in terms of the principles laid down by this Court in National Insurance Company v. Assainar [2019 (4) KLT 39]. He also further pointed out that cross objections are preferred by the claimant since no amount was awarded towards loss of consortium and pain & sufferings. In support of his contention, he relied on the judgment of the learned Single Judge of this Court in Mable Kodiveedu v. Lenoy Sebastian [MACA No.4040/2017 dated 19.10.2023], wherein a learned Single Judge of this Court following the provisions contained under the Kerala Torts (Miscellaneous Provisions) Act, 1976 had held that the legal heirs of the deceased are entitled to claim compensation under the head pain and sufferings of the deceased.
9. I have considered the rival submissions raised across the Bar.
2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 12
10. In order to deal with the primary submissions of the learned counsel appearing for the Insurance Company, it is expedient to refer to the principles laid down by the Hon'ble Supreme Court in Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]. The Hon'ble Supreme Court while laying down the principles relating to the award of compensation had specifically held that the claimants would be entitled to compensation only after deduction towards the personal and living expenses.
11. The principles laid down by the Hon'ble Supreme Court in Sarla Verma (supra) again came up for consideration before the Constitution Bench of the Supreme Court in National Insurance Company Ltd. v. Pranay Sethi & Others [2017 (4) KLT 662 (SC). While affirming the principles laid down by the Apex Court in Sarla Verma (supra) as confirmed in Reshma Kumari & Ors. V. Madan Mohan & Another [(2013) 9 SCC 65], the Constitution Bench of the Hon'ble Supreme Court held that insofar as the principles to be followed for an appropriate deduction for personal and living expenses, the tribunals and courts should be guided by the conclusions reached in paragraph No.43.6 of Reshma Kumari (supra).
2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 13
12. In order to appreciate the scope and ambit of the principles laid down by the Apex Court in Sarla Verma (supra) and Reshma Kumari (supra), the relevant portions of the respective judgments are extracted hereunder:
Paragraph No.30 of the judgment in Sarla Verma (supra) reads as under:
"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra1, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six."
1U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors. MANU/SC/1154/1996 : (1996) 4 SCC 362 Affirming the above principle, the Hon'ble Apex Court in Reshma Kumari (supra) held in paragraph No.43.6 as follows:
"43.6. Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paras 30, 31 and 32 of the judgment in Sarla Verma subject to 2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 14 the observations made by us in para 41 above."
13. On a cumulative reading of the decisions rendered by the Apex Court and as extracted above, it becomes clear that paramount importance has to be given with regard to the number of dependents. If the dependent family members are 2-3, then only 1/3rd deduction can be ordered by the tribunals and the courts. The appellant-insurance company placing reliance on the findings rendered by the Hon'ble Supreme Court as aforesaid, has come up with an ingenious argument that since the claim is filed only by one person, it is to be construed that there is only one dependent and therefore, one-half of the amount has to be deducted towards the personal expenses. At first blush, the said argument may appear to be appealing. However, a close analysis of the principles laid down by the Supreme Court, which are extracted above, would show that if the said argument is accepted, the same would run contrary to what has been extracted above. In the light of the law as laid down by the Supreme Court in Sarla Verma (supra) and Reshma Kumari (supra) and as affirmed by the Hon'ble Supreme Court in Pranay Sethi (Supra), it is not possible to accept the argument of the learned counsel for the appellant-insurance company that one-half of the amount has to be deducted towards the personal and living expenses 2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 15 since there is only one claimant. Hence, this Court has no hesitation to reject the aforesaid contention.
14. Going forward to the next issue regarding the fixation of notional income of a minor, it has to be noticed that there was inconsistency among various orders rendered by tribunals in the matter of fixation of notional income of a minor. In order to set right the inconsistencies between the awards passed by various tribunals, this Court had to lay down certain principles in National Insurance Company v. Assainar [2019 (4) KLT 39]. Paragraph No.18 of the said judgment reads as under:
"18. Once it is accepted that the multiplier to be applied while computing compensation for dependency is '15' and the mode of assessment is as provided for in the Second Schedule to the Act, viz, that one third shall only be deducted from the notional income to determine the multiplicand, as it is found that the compensation payable under the un-amended Section 163A is Rs.2,40,000/-, it can be seen, though it is provided in the Second Schedule that the notional income of a non-earning person shall be reckoned at Rs.15,000/-, the notional income in respect of children below the age of 15 is actually contemplated to be reckoned at Rs.24,000/-. In other words, having regard to the fact that Section 163A is a provision introduced only with effect from 14.11.1994, and having regard to the compensation granted by various courts in cases involving death of children during the said period, I am of the view 2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 16 that Rs.24,000/- can be fixed, except in exceptional cases where a different yardstick has to be followed, as the notional income of the children died in accidents till the end of the financial year 1995-96. But the said amount cannot be reckoned as the notional income in cases arising in the subsequent years, as it is common knowledge that rupee value has come down drastically thereafter and the effect of inflation in the subsequent years has therefore, to be off-setted. In Chetan Malhotra & Others v. Lala Ram & Others [CDJ 2016 DHC 865], the Delhi High Court has made an endeavor to bring in uniformity in the compensation granted in cases involving death of children. In the said case, it was found that having regard to the fluctuating trends in consumer price index, the cost inflation index determined and notified by the Ministry of Finance in Government of India under Section 48 of the Income Tax Act, 1961, for each financial year would be a better method to offset the effect of inflation on the real value of money. The view expressed in the said case appears to be sound and can be accepted. A table showing the cost inflation index notified by the Government of India from time to time, the corresponding money value for Rs.24,000/- applying the cost inflation index up to the year 2018-19 and the nearest thousand of the money value arrived at, is furnished hereunder for ready reference :
SCHEDULE 2 Sl. No. Financia Cost Cost Value Value to l Year Inflation Inflation Nearest Index New Index Thousand 1 1995-96 281 24,000 24,000 2 1996-97 305 26,050 26,000 3 1997-98 331 28,270 28,000 4 1998-99 351 29,979 30,000 2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 17 5 1999-00 389 33,224 33,000 6 2000-01 406 34,676 35,000 7 2001-02 426 100 36,384 36,000 8 2002-03 105 38,204 38,000 9 2003-04 109 36,659 40,000 10 2004-05 113 41,114 41,000 11 2005-06 117 42,570 43,000 12 2006-07 122 44,389 44,000 13 2007-08 129 46,936 47,000 14 2008-09 137 49,847 50,000 15 2009-10 148 53,849 54,000 16 2010-11 167 60,762 61,000 17 2011-12 184 66,947 67,000 18 2012-13 200 72,769 73,000 19 2013-14 220 80,046 80,000 20 2014-15 240 87,322 87,000 21 2015-16 254 92,416 92,000 22 2016-17 264 96,055 96,000 23 2017-18 272 98,965 99,000 24 2018-19 280 101,876 102,000 In other words, the notional income of children died after the financial year 1995-96 can be determined applying the above table and I have no doubt, the same would certainly provide uniformity in the awards."
15. However, the learned counsel appearing for the appellant- insurance company raised a further contention that the Hon'ble Supreme Court had not approved the findings rendered by this Court in Assainar (supra). The learned counsel also placed reliance on the judgment of the Apex Court in Meena Devi (supra) to contend that the principle of global compensation has to be fixed in respect of a claim arising out of the death of a minor. It is true that the Hon'ble Supreme Court in Meena Devi (supra) and later in Kusmi Devi v. Md.Kasim and Another [CDJ 2023 SC 858], the Hon'ble Apex Court adopted the 2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 18 global compensation method. Following the said decision, this Court [ES(J)] had decided Preethu (supra) applying the principles of global compensation.
16. Pertinently, the judgments in Meena Devi (supra), Kusmi Devi (supra) and Preethu (supra) were all concerning the death of minors below the age of five years. The question before this Court would be whether the "principles of global compensation" or the principles laid down by this Court in Assainar (supra) has to be followed. It must be remembered that while fixing quantum in the case of death of minor children between the age of 6 to 15 a different yardstick has to be followed other than adopting the principles of global compensation. Precisely, this is the reason why this Court felt the necessity to lay down the principles that guide the tribunals in the matter of awarding compensation. It is worthwhile to extract the following observations from the decision of this Court in Assainar (supra):
"13. As far as the cases involving death of children below the age of 6 are concerned, as the compensation payable to their parents is the present value of the prospective services and pecuniary benefits expected from the deceased children, the parents of such children cannot be equated with the parents of school going children up to the age of 15, for, they cannot expect services and pecuniary benefits from the children in the near future as in the case of the parents of the children in the age group of 6 to 15.
2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 19 Further, unlike the parents of school going children, the parents of children below the age of 6 may not have spent amounts for the education and related matters of their children, so as to maintain a legitimate and reasonable expectation of services and pecuniary benefits in future from their children. A different yardstick is, therefore, to be fixed for computing compensation for loss of dependency in their cases. If multiplier method cannot be applied in such cases, only a consolidated amount can be granted by way of compensation."
The reading of the impugned award shows that the tribunal had applied the principles laid down by this Court in Assainar (supra). If that be so, this Court cannot find fault with the tribunal. Therefore, the inescapable conclusion is that the appeals filed by the Insurance Company lack merits and are liable to be dismissed.
17. Coming to the merits of the cross objections preferred by the claimant, it is to be noted that a perusal of the award shows that no compensation towards loss of consortium and pain & sufferings were awarded. As noticed above, the entitlement of the claimants to claim compensation under the head pain and sufferings, even in the case of death, insofar as the State of Kerala is concerned, is governed by the provisions contained in the Kerala Torts (Miscellaneous Provisions) Act, 1976. The learned counsel for the appellant-insurance company vehemently argued that the decision of this Court in Mable Kodiveedu (supra) requires reconsideration. In order to find out 2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 20 whether the decision of this Court in Mable Kodivedu (supra) requires reconsideration and consequently a reference to the Larger Bench, it is expedient to deal with the said Act in detail .
18. Sections 2 and 9 of the Kerala Torts (Miscellaneous Provisions) Act, 1976 reads as under :
"Section 2- Effect of death on certain cause of action - On the death of any person after commencement of this Act, all cause of action subsisting against or vested in him shall survive against, or,the case may be, for the benefit of his estate.
Provided that this section shall not apply to causes of action foi defamation of seduction or for inducing one spouse to leave or remain apart from the other or to claim ims for damages on the ground of adultery."
xxx xxx xxx
"Section 9- repeal -
1) Travancore Law Reforms (Miscellaneous Provisions
Act, 1124 (Act XII of 1124), is hereby repealed.
2) The Legal Representatives' Suits Act, 1855 (Central Act 12 of 1855), shall cease to apply to that part of the State of Kerala where it was in force immediately before the commencement of this Act.
3) Section 306 of the Indian Succession Act, 1925 (Central Act 39 of 1925), so far as it relates to right of action in torts, shall cease to apply to the State of Kerala"."
A plain reading of Section 2 along with Section 9 leaves no room for doubt regarding the right of the claimant to maintain an action for damages for the tort of misfeasance even on the death of the dependent. In Ali (late) Vs Sumesh [2010(3) KLT 70] a learned Single Judge held that Section 2 of the Kerala Torts (Miscellaneous Provisions) Act, 2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 21 1976 was enacted to undo the restrictions imposed by Section 306 of the Succession Act, 1925. It is pertinent to mention that the principles laid down in Sumesh (supra) was affirmed by a Division Bench of this Court in Jaya vs Shaji [ 2014(1) KLT 31]. In view of the Division Bench decision of this Court in Shaji (supra), this Court is of the considered view that the appellant has not made any valid ground for reconsideration of the decision of the learned Single Bench in Mable Kodivedu (supra). Even otherwise, this Court is bound to apply the principles laid down by the Division Bench since the same is binding on the Single Bench. Hence, the contention is rejected. Resultantly, the cross objector is entitled to succeed and therefore, this Court holds that the claimant is entitled to compensation under the head pain and sufferings. Similarly, in respect of compensation under the head loss of consortium, no compensation is seen awarded. Thus, the claimant is entitled to succeed in the cross objections. The award in OP(MV) Nos.201/2019 and 202/2019 is liable to be modified and I do so. The cross objector/claimant is entitled to enhanced compensation under the heads "loss of consortium" and "pain & sufferings" at Rs.40,000/- and Rs.25,000/-, respectively, in OP(MV) Nos.201/2019 & 202/2019 each, 2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 22 totalling to Rs.1,30,000/- (Rupees One lakh and Thirty thousand only).
19. In the result, MACA Nos.3310/2020 & 342/2021 are dismissed and Cross Objection Nos.79/2021 in MACA No.3310/2020 & 77/2021 in MACA No.342/2021 are allowed.
MACA No.345/2021 & Cross Objection No.75/2021
20. The claimant contended that the deceased Smt.Shyji Martin was an Accountant and was earning Rs.20,000/- as monthly income. However, no evidence was placed before the Tribunal to prove the income of the deceased. Hence, the Tribunal proceeded to fix a monthly income of Rs.10,000/-, after adding 40% of the amount towards future prospects and deducing one-third amount towards personal and living expenses and awarded the following compensation:
Sl. Head of claim Amount Amount awarded
No. claimed(Rs.) (Rs.)
1 Transportation expenses 25,000/- 10,000/-
2 Damage to clothing and articles 5,000/- 2,000/-
3 Funeral expenses 50,000/- 15,000/-
4 Pain and sufferings 3,00,000/- --
5 Loss of dependency 36,00,000/- 16,80,000/-
6 Loss of estate 2,00,000/- 15,000/-
7 Compensation for loss of love and 5,00,000/- --
affection
8 Loss of consortium 2,00,000/- --
9 Medical expenses 1,00,000/- 4,100/-
10 Compensation for loss of care, 1,00,000/- --
company etc.
11 Compensation for mental agony 1,00,000/- --
Total 51,80,000/- 17,26,100/-
2024:KER:77095
MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 23 limited to Rs.25,00,000/-
21. The appellant-insurance company has primarily raised the contention that since there is only one claimant, one-half of the amount had to be deducted towards personal expenses. While discussing the said issue, in the above paragraphs of the judgment, this Court has already found that the said contention is unsustainable in the light of the principles laid down by the Hon'ble Supreme Court in Sarla Verma (supra) and Reshma Kumari (supra), as affirmed by the Constitution Bench in Pranay Sethi (supra). Therefore, the said contention is liable to be rejected. Accordingly, the appeal has to necessarily fail.
22. Insofar as the cross objection is concerned, the learned counsel appearing for the claimant, Sri.A.N.Santhosh, contended that the accident occurred in the year 2018 and accordingly going by the principles laid down by the Hon'ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the notional income of the deceased ought to have been fixed at Rs.11,500/-. He further contended that the tribunal erred in not granting future prospects also. In the light of the above contention, this Court is called 2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 24 upon to decide as to whether the notional income of a homemaker can be fixed on par with the decision rendered in Ramachandrappa (supra) or a different yardstick has to be applied in such cases.
23. While dealing with the above question, this Court may have to consider two intertwined issues. Can the tribunal fix the notional income of a homemaker below that of a coolie worker? Whether the claimant is entitled to future prospects on the notional income fixed by the tribunal.
24. In Kirti and Another Vs Oriental Insurance Company [(2021) 2 SCC 166], a Three Judge Bench of the Hon'ble Supreme Court considered the issue of entitlement of future prospects in a claim on account of the death of a homemaker who is a non earning member. After considering various precedents on the point, the Supreme Court held that the term "services" is required to be given broad meaning and must be construed by taking into account loss of personal care and attention given by the deceased to her children as mother and spouse to her husband. They must be given compensation in lieu of the gratuitous services rendered by the deceased.
2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 25
25. It is pertinent to note that applying the principles laid down by the Constitution Bench in Pranay Sethi (supra), the Apex Court applied future prospects at 40%.
26. Going forward, the vexatious question would be what should be the notional income to be fixed in such cases. It is true that, on facts, the claimant failed to prove that the deceased was a tailor. However, the question would be whether the tribunal can fix notional income below that of a coolie worker. The answer would be emphatic "No". The reason is that the services of a homemaker are indispensable. It is beyond one's comprehension as to how the tribunal could proceed to fix the notional income in such cases below that of the coolie worker.
27. The role of a homemaker is as important as that of a family member, whose income is tangible as a source of livelihood for the family. The activities performed by a home-maker, if counted one by one, there will be hardly be any doubt that the contribution of a home-maker is of a high order and invaluable. The above principle has been reiterated by the Supreme Court in Arvind Kumar Pandey v. Girish Pandey [2024 SCC OnLine SC 1027]. Therefore, this Court has no hesitation to hold that the tribunal erred completely in fixing the notional income of the deceased Smt.Shyji Martin at Rs.10,000/- which 2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 26 is far below the notional income liable to be fixed going by the principles laid down by the Hon'ble Supreme Court in Ramachandrappa (supra). The date of accident in this case is on 6.11.2018. Therefore, applying the principle in Ramachandrappa (supra) the notional income of the deceased Smt.Shyji Martin has to be fixed at Rs.11,500/-. Since the age of the deceased was 39, 40% future prospects has to be added to the said income. Thus the total income would come to Rs.16,100/-. Insofar as the heads of loss of consortium and pain & sufferings are concerned, no compensation has been awarded and therefore, suitable enhancement has to be granted under the said heads. Going by the findings rendered by this Court in the connected appeals and the cross objections as discussed above, the claimant is also entitled to awarding of compensation under the heads "loss of consortium" and "pain & sufferings" at Rs.40,000/- and Rs.25,000/-, respectively, and the compensation awarded by the tribunal in OP(MV) No.203/2019 is modified and enhanced as follows:
Sl. Head of claim Amount awarded Enhanced amount (Rs.) No. (Rs.) 1 Pain and sufferings - 25,000/-
2 Loss of consortium -- 40,000/-
3 Loss of dependency 16,80,000/- 2,52,000/-
[(11500+40/100)x12x15x2/3 =19,32,000-16,80,000] Total amount enhanced in OP(MV) 3,17,000/-
No.203/2019
2024:KER:77095 MACAs.345/21, 342/21 & 3310/20 and COs. 75, 77 & 79/2021 27 The claimant is entitled to an additional compensation of Rs.3,17,000/- (Rupees Three lakhs and Seventeen Thousand only) in respect of the claim under OP(MV) No.203/2019.
In the result, MACA Nos.345/2021, 342/2021 & 3310/2020 are dismissed and Cross Objection Nos.75/2021 in MACA No.345/2021 & 77/2021 in MACA No.342/2021 & 79/2021 in MACA No.3310/2020 are allowed. The claimant is entitled to an enhanced compensation of Rs.65,000/-, Rs.65,000/- and Rs.3,17,000/- in OP(MV) Nos.201/2019, 202/2019 & 203/2019, respectively. He is entitled to interest @ 9% per annum from the date of petitions till the date of realization with proportionate costs on the enhanced compensation. The Insurance Company shall deposit the enhanced compensation together with interest and proportionate costs within a period of one month from the date of receipt of a copy of this judgment. The claimant shall furnish the details of the Bank account to the Insurance company for transfer of the amount. No order as to costs.
Sd/-
EASWARAN S. JUDGE jg