Kerala High Court
Remani vs P.V.Avirachan on 8 April, 2022
Author: M.R.Anitha
Bench: M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
FRIDAY, THE 8TH DAY OF APRIL 2022 / 18TH CHAITHRA, 1944
MACA NO. 1829 OF 2013
AGAINST THE ORDER/JUDGMENT IN OPMV 1223/2005 OF SPECIAL
COURT FOR EC ACT CASES & MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR
APPELLANTS/PETITIONERS 1 TO 3:
1 REMANI
W/O.LATE PAULY A.THOTTAN,THOTTAN HOUSE,EAST
FORT,THRISSUR-680 005.
2 AMBILY THOTTAN
D/O.LATE PAULY A.THOTTAN,THOTTAN HOUSE,EAST
FORT,THRISSUR-680 005.
3 JOHN PAUL THOTTAN
S/O.LATE PAULY A.THOTTAN,THOTTAN HOUSE,EAST
FORT,THRISSUR-680 005.
BY ADVS.
SRI.T.K.KOSHY
SRI.ABE RAJAN
RESPONDENTS/RESPONDENTS 1 TO 3:
1 P.V.AVIRACHAN
PADINJARA PURATHU
HOUSE,KOOTTALE,MULAYAM,THRISSUR,PIN-680751.
2 SHAJU
S/O.ACHUTHAN NAIR,CHULLIUPARAMBIL
HOUSE,AYYAPPANKAVU DESOM,MULAYAM,THRISSUR,PIN-
680751.
3 NATIONAL INSURANCE CO.LTD
FORT ROUND,THRISSUR,PIN-680 001.
BY ADV SRI.PMM.NAJEEB KHAN
SMT.K.S SANTHI,R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 14.03.2022 ALONG WITH 1992 OF 2013, THE COURT
08.04.2022 DELIVERED THE FOLLOWING:
M.A.C.A.Nos.1829/2013
&
1992/2013 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
FRIDAY, THE 8TH DAY OF APRIL 2022 / 18TH CHAITHRA, 1944
MACA NO. 1992 OF 2013
AGAINST THE AWARD DATED 14.05.2013 IN OPMV 1223/2005 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL ,THRISSUR
APPELLANT/3RD RESPONDENT:
THE NATIONAL INSURANCE CO.LTD.
THRISSUR, REPRESENTED BY ITS DEPUTY MANAGER,
REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING,
M.G.ROAD, KOCHI-35.
BY ADV SRI.GEORGE CHERIAN (THIRUVALLA)
RESPONDENTS/CLAIMANTS:
1 RAMANI
W/O. LATE PAULY A.THOTAN, THOTTAN HOUSE, EAST
FORT, THRISSUR-680005.
2 AMBILI THOTTAN
D/O. LATE PAULY, THOTTAN HOUSE, EAST FORT,
THRISSUR-680005.
3 JOHN PAUL THOTTAN
S/O. LATE PAULY, THOTTAN HOUSE, EAST FORT,
THRISSUR-680005.
BY ADVS.
SRI. K.P.PAULOSE
SRI.ABE RAJAN
SRI.T.K.KOSHY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 14.03.2022 ALONG WITH M.A.C.A.NO.1829 OF 2013,
THE COURT 08.04.2022 DELIVERED THE FOLLOWING:
M.A.C.A.Nos.1829/2013
&
1992/2013 3
M.R.ANITHA, J
******************
M.A.C.A.Nos.1829 of 2013
&
1992 of 2013
-----------------------------------------------
Dated this the 8th day of April, 2022
JUDGMENT
These appeals are filed against the award in O.P.(MV) No.1223/2005 on the file of Motor Accidents Claims Tribunal, Thrissur. Claim petition has been filed by the appellants in M.A.C.A.No.1829/2013 under Section 166 of the Motor Vehicles Act out of death of Pauly A. Thottan due to a motor accident occurred on 01.12.2004 while he was getting into the bus bearing Reg.No.KL/8/8262 at Kizhakkumpattukara bus stop. It is alleged that the accident happened due to the rash and negligent driving of the second respondent. 1st respondent is the owner of the vehicle and third respondent is the insurer. A total compensation of Rs.23,40,000/- was claimed which was limited M.A.C.A.Nos.1829/2013 & 1992/2013 4 to Rs.10,00,000/-.
2. M.A.C.A.No.1992/2013 has been filed by the third respondent/insurer against the award. Before the Tribunal, 1 st and the second respondents remained ex parte. Third respondent filed written statement admitting the policy coverage with respect to the offending vehicle but the rashness and negligence alleged against the second respondent is denied. It is also contended that the death of the deceased was not the consequence of any injury sustained out of the accident since the death was after five months of the accident due to the earlier illness. PW1 was examined and Exts.A1 to A15 were marked from the side of the appellants/claimants in M.A.C.A.No.1829/2013 (hereinafter be referred as 'claimants'). RW1 was examined and Ext.B1 was marked from the side of the third respondent.
3. The Tribunal, on evaluating the evidence and other facts and circumstances, found that the accident happened due to the rash and negligent driving of the second respondent. The death of the deceased was caused as a result of injury sustained. M.A.C.A.Nos.1829/2013 & 1992/2013 5 Accordingly 3rd respondent was held liable to make good the loss sustained to the 1st respondent. A total compensation of Rs.12,13,000/- was awarded.
4. Dissatisfied with the quantum of compensation awarded by the Tribunal, claimants came up in appeal and 3 rd respondent also approached this Court against the finding of the Tribunal that the death was caused as a result of the accident and also challenging the amount of compensation awarded under various heads. Since both appeals are out of the same award, both appeals were heard together and a common judgment is passed.
5. Lower court records were called for and for the sake convenience, M.A.C.A.No.1829/2013 is taken as the leading case and appellants in that appeal would be referred hereinafter as per their rank in that appeal.
6. According to the learned counsel for the appellants/claimants (hereinafter be referred as 'the claimants'), the claimants produced Ext.A9 salary certificate proving the M.A.C.A.Nos.1829/2013 & 1992/2013 6 gross salary as Rs.16,237.53/- and PW1, the Senior Manager was examined and he categorically stated that if at all the deceased had continued in service during the time of his examination, that is on 19.11.2012, the deceased would have received a salary of Rs.35,000/- and after retirement also, he would have been appointed on contract basis. But, inspite of that, Tribunal had taken the monthly income as Rs.20,000/- alone, which, according to him, is very low. It is also contended that the Tribunal adopted split multiplier for the period during service and the period after retirement and multiplier also has been wrongly applied as 9. The compensation awarded towards pain and suffering, loss of amenities and the amount awarded under conventional heads are very low and hence he seeks for enhancement of compensation on all heads.
7. Learned Standing Counsel for the third respondent/insurer, on the other hand, would vehemently contend that the Tribunal went wrong in finding that the death of the deceased was due to the injury sustained in the accident M.A.C.A.Nos.1829/2013 & 1992/2013 7 since the deceased was suffering from liver cirrhosis and had been undergoing treatment for the same for the last four years and he had also suffered stroke much before the accident. No postmortem was conducted and death was also almost five months after the incident. Hence the death of the deceased, according to her, is not due to the injuries sustained out of the accident. It is also contended that amount of Rs.20,000/- taken as the multiplicand by the Tribunal is against the settled principles of law since the salary certificate Ext.A9 itself would show monthly salary of Rs.16,237.53/-. Hence she seeks for interference at the instance of this Court for reducing the compensation awarded by the Tribunal by taking it as an injury case alone.
8. So, from the above, the following points emerges for consideration. (1) Whether the death of the deceased was caused as a direct result of the injury sustained due to the accident. (2) Whether the compensation awarded by the Tribunal under various heads are liable to be reduced?
M.A.C.A.Nos.1829/2013& 1992/2013 8
9. Point No.1 : Learned counsel brought to my attention to St.John's Law Review Number 1 Volume 22 November 1947 Measure of Damages - Aggravation of Previous Injury, Disease, Disability or Latent Weaknesses. Page 136 paragraph 2 was highlighted which reads thus:
"II. Elements of Cause of Action The rule is well settled in all jurisdictions that the same duty is owed to the sick and infirm as to the healthy and strong. The liability of a wrongdoer is not predicated on the condition of a perfect physical specimen only. One who wrongfully inflicts injury on another is responsible for all the direct consequences of his act. This is true even if the consequences are more disastrous as a result of a previous condition than they would ordinarily have been. The mere fact that the peculiar physical condition of the plaintiff caused enhancement of the injury or the fact that an injury might not have resulted at all in a healthy person will not relieve a defendant from liability for a breach of duty to the plaintiff, but may only act in mitigation of damages.
III. Measure of Damages The measure of damages, as determined by a jury under a proper charge, consists of subtracting the M.A.C.A.Nos.1829/2013 & 1992/2013 9 condition which would have resulted in any event because of the weakened condition of the plaintiff from the condition which exists after the accident. It is not necessary to have new and independent injuries in order for a good cause of action to exist, for the aggravation of an old injury or disease, or the activation of a latent disease is sufficient. "
10. No doubt claimants can maintain an application for death claim only on satisfying that the death was resultant to the injuries caused due to the accident.
11. Learned counsel for the claimants placed reliance on Ramathal v. Managing Director, Cheran Transport Corporation, Coimbatore : (2003) 10 SCC 53. In that case, after the accident victim remained as indoor patient in hospital for a week and after his discharge received treatment in hospital and died one year and one month after the incident. Cause of death was primary disease hypoxic encephalopathy and immediate cause of death was cardiorespiratory arrest. Doctor stated that accident might have caused the death. Tribunal found that the death was due to the accident. High Court in appeal, M.A.C.A.Nos.1829/2013 & 1992/2013 10 having regard to the fact that death was after one year and one month, held to be unable to connect the injuries to death. Apex Court found that respondent did not bring any material to show that there is no link between accident and death. It was also found that the finding of High Court is without any material on record.
12. Learned counsel also placed reliance on Abdul Rahim and Another v. Sundaresan and Another : (2013) 3 MLJ 1299 wherein victim died within four months from the date of accident. Deceased sustained injuries in brain and blood clots caused in brain. It was proved that victim died because of injuries sustained in the accident. But the Tribunal found fault with the way in which treatment was given. It was held that lapse in continuation of treatment cannot be a ground to deny compensation. Non doing of postmortem is also held to be not a ground to deny compensation to the claimant.
13. The deceased was U.D.Clerk in South Indian Bank, Paravattani branch. Senior Manager of the said Bank was M.A.C.A.Nos.1829/2013 & 1992/2013 11 examined as PW1 from the side of the claimants. He would depose that the accident was on 01.12.2004 and the deceased was on leave from 01/12/2004 to 30/04/2005. Ext.A10 is the extract of bank register certifying that fact. Salary certificate issued by him for the month of November, 2004 is marked as Ext.A9, as per which the gross salary of the deceased was Rs.16,237.53/-. During cross-examination, he categorically stated that he is in acquaintance with the deceased as a staff and he had been regularly attending the office. Though he was confronted with Exts.A12 and A15, the discharge summaries of the deceased, he categorically stated that since he is not in that profession, he has no idea with the descriptions in it. He also deposed that he cannot state about the absent days of the deceased without perusing the records. So, the evidence of PW1 that the deceased was regularly attending the office and had been discharging his duties till the date of accident, stands not discredited during cross-examination. The respondents also did not take any steps seeking for production of any documents M.A.C.A.Nos.1829/2013 & 1992/2013 12 regarding the leave details of the deceased prior to the accident. If at all the third respondent had got a specific case that the deceased had been taking leave due to the alleged disease of liver cirrhosis, stroke etc., they could have taken steps seeking production of the documents kept in the bank to substantiate the contentions. In the absence of any such materials, the evidence of PW1 that the deceased was regularly being present in the office is only to be accepted.
14. RW1, Gastroenterologist attached to Mother Hospital, Thrissur was examined as RW1 from the side of the third respondent. According to him, deceased was examined by him on 22.02.2005 and was discharged on 28.02.2005. He had oedema and swelling all over the body and he was referred to Dr.Gilvas of Jubilee Mission Hospital, Thrissur. The discharge summary Ext.A15 was shown to him and he admitted his signature. He would say that the diagnosis was liver cirrhosis for four years due to alcohol and further he deposed that he had not treated him. No earlier disease diagnosed and it was caused with M.A.C.A.Nos.1829/2013 & 1992/2013 13 any hepatic decompensation. Learned counsel for the third respondent would vehemently contend that Ext.A15 proved through RW1 would show that the deceased was having cirrhosis liver and that would establish the defence case that the death was not due to the injuries sustained on account of the accident but due to his old disease of liver cirrhosis (alcohol related). On going through Ext.A15 it can be seen that he has been treated at Mother's hospital only for a short span of six days, that is, from 22.02.2005 to 28.02.2005 and the course and discussions towards the end in Ext.A15 would state that he is a known patient of cirrhosis liver evaluated elsewhere. He was admitted in that hospital with ascites, paedel oedema and features of cirrhosis lever. He was bedridden for three months following fracture of neck of femur left side and he was managed with salt restricted diet, diuretics, ascitic taping while on FFP. He was started on antibiotics following upper respiratory infection. He has significant proteinuria secondary to in all probability diabetic nephropathy. This excess loss in the setting of poor synthetic M.A.C.A.Nos.1829/2013 & 1992/2013 14 function of liver makes ascites difficult to manage. So, even the course and description in Ext.A15 would indicate about the bed ridden condition of the deceased for three months following fracture of neck of femur left side. Even though the learned counsel would contend that all the medicines prescribed in Ext.A15 is for liver cirrhosis, no question seen put to the Doctor to substantiate that contention. So, in effect, the evidence of RW1 or Ext.A15 discharge summary will not be sufficient to conclude that the cause of death is liver cirrhosis alone.
15. Moreover, PW1 examined from the side of the claimant who is the Senior Manager of South Indian Bank would categorically deposed that, from 01.12.2004 till 30.04.2005 he was on continuous leave. The accident was on 01.12.2004 and he died on 29.04.2005. Ext.A10, the extract of leave register has been produced by him to substantiate that fact. He also categorically deposed that till the accident the deceased had been reporting to job. Ext.A2 wound certificate from the Medical College Hospital, Thrissur, Ext.A3 wound certificate issued from M.A.C.A.Nos.1829/2013 & 1992/2013 15 Jubilee Mission Hospital on the same date at 7.15 p.m as well as Exts.A7, A11, A12, A13 and A15 discharge summaries produced from the side of the claimants also would prove prolonged treatment undergone by him after the incident. Ext.A7 certificate issued from Jubilee Mission Hospital which would state about Ischaemic stroke and cirrhosis liver with Decompensation and also about fall on 01.12.2004 and and admission from 02.12.2004 with Trocanteric fracture femur which was surgically fixed. It was also certified that subsequent to that he has multiple admissions for Hepatic Decompensation. He was last admitted on 01.04.2005 and his hepatic status steadily worsened and he expired on 29.04.2005. Ext.A11 certificate dated 23.03.2005 issued by the Jubilee Mission Hospital would state about the admission of the deceased on 02.12.2004 due to fracture inter-Trochanter (L) and was operated on 11.02.2004 and he was discharged on 19.01.2005 and is still having regular follow-up in the hospital. Ext.A12 dated 05.03.2005 also states about cirrhosis liver as well as Portal HTN, Ascites, hepatic M.A.C.A.Nos.1829/2013 & 1992/2013 16 encephalopathy, neck of femur. Another discharge summary issued from Jubilee Mission Hospital proving admission on 27.03.2005 and discharge on 29.03.2005. Ext.A14 certificate dated 04.05.2005 issued from Jubilee Mission Hospital and Research Institute certifying that his case is of Ischaemic stroke and cirrhosis liver with Decompensation. He sustained a fall on 01.12.2004 and admitted on 02.12.2004 with Trocanteric fracture femur which was surgically fixed and it was further certified that subsequently he had multiple admissions for Hepatic Decompensation and he was admitted on 01.04.2005 and his hepatic status steadily worsened and he expired on 29.04.2005. Ext.A15 is copy of the discharge card issued from Mother Hospital, description with respect to the same discussions has already been made in the previous paragraphs.
16. The above medical records would go to show that after the accident he had been continuing treatment with intermittent admissions in the hospital. Though the medical records speak about cirrhosis liver, all the certificates also state about the M.A.C.A.Nos.1829/2013 & 1992/2013 17 fracture demur and subsequent treatment undergone with respect to the same. As has been rightly found by the Tribunal, even though he may be having cirrhosis liver, he had been managing with medication and only because of this accident and injuries and the subsequent treatment including use of antibiotics which might have aggravated the disease and taken his life for a few months after the accident. The inference drawn by the Tribunal that the accident and the resultant injuries aggravated the illness which ended his life within a short span of five months after the accident seems to be acceptable. Under no stretch of imagination can it be concluded that the accident has no connection with the death of the deceased. Had the accident not been happened, he would have controlled the disease with medication and that is the reason why PW1 deposed that he had been regularly present in the office for his duties prior to the accident but he could not attend the office for a single day after the accident. So, I concur with the finding of the Tribunal that the accident and the resultant injuries and the treatment undergone M.A.C.A.Nos.1829/2013 & 1992/2013 18 ultimately resulted in the death of the deceased. So, in short, the accident has a direct nexus with the death of the deceased and the respondent/insurer cannot contend that the death is not caused due to the accident and the resultant injuries. Point No.1 is so found in favour of the claimants.
17. Point No.2: Ext.A9 salary certificate would show that the deceased was drawing an amount of Rs.16,237.53/- as salary. The Tribunal, on the basis of evidence of PW1, held that if at all the deceased was alive at the time of his examination in November, 2012, he would have drawn a salary of Rs.34,000/- and after his retirement, he would have been appointed in the office cadre on contract basis. So, the Tribunal took his monthly income at Rs.20,000/-. Thereby, the Tribunal computed the monthly income for the loss of dependency as Rs.20,000/- till the age of 56. The Tribunal took the age of the deceased as 56 at the time of the accident in view of the disparity with respect to the age in wound certificate, as well as in Ext.A15 discharge summary and his retirement is at the age of 60. Hence taking the M.A.C.A.Nos.1829/2013 & 1992/2013 19 age as 56, 9 was adopted as multiplier. For five years during service and for the remaining period, Tribunal took his notional income as Rs.5,000/- for computation. So, a split multiplier was applied by the Tribunal.
18. First of all, I would determine the issue as to whether the application of split multiplier by the Tribunal is illegal and improper and is liable to be set aside?
19. In Puttamma & Others v. K.l. Narayana Reddy & Another (2013 (15) SCC 45) it has been held by the Apex Court that in determination of compensation in accident claims case under Section 166 of the Act, the multiplier method followed in Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802) which is affirmed by a three-judge Bench of the Apex Court in Reshma Kumari & Ors. v. Madan Mohan & Anr., ((2013) 9 SCC 65) deprecated the practice of split multiplier. It is also held therein that 1988 Act does not envisage application of split multiplier. In the absence of any specific reason and evidence on record, the Tribunal or the Court should not apply M.A.C.A.Nos.1829/2013 & 1992/2013 20 split multiplier on routine course and should apply the multiplier as per Sarla Verma (supra). In N.Jayasree & Ors. v. Cholamandalam MS General Insurance Company Ltd. (2021 0 Supreme (SC) 627), the Apex Court deprecated the application of split multiplier by the High Court. So, in the present case also, the deceased was 56 years at the time of accident and his retirement age is 60 years. So, by adopting multiplier of 9, the Tribunal applied multiplier of 5 for the period during service and multiplier of 4 for the post retirement period. That is not seem to be legal.
20. As stated earlier, for the period during service, Tribunal took Rs.20,000/- as the monthly income whereas the salary certificate Ext.A9 would prove the monthly income of the deceased on the date of accident as Rs.16,237.53/-. The date of accident is the crucial date for determining the multiplicand. Here, the accident was on 01.12.2004. Ext.A9 certificate would show that the monthly salary of the deceased in November, 2004 is Rs.16,237.53/-. It would also show that he is not an income M.A.C.A.Nos.1829/2013 & 1992/2013 21 tax payee. So, the salary of Rs.16,237.53/- shown in Ext.A9 can be adopted as the income for computing the loss of dependency. As held in Sarla Verma and as approved in National Insurance Co. Ltd v. Pranay Sethi ((2017) 16 SCC 680), suitable multiplier to be applied is depending upon the age of the deceased at the time of death. The Tribunal taken the age as 56. But according to the learned counsel, he was only 54 years old at the time of accident. I.A.No.01/2021 has been filed by him to receive original S.S.L.C certificate of the deceased as additional document. Notice was issued to the respondent. In the supporting affidavit, it has been stated by the first claimant that they could not locate the S.S.L.C book of the deceased at the time of trial and it could not be produced in evidence and subsequently they made a thorough search and enquired in the bank where the deceased was employed and they could locate the S.S.L.C book from an old almirah and it has been produced. Since there is satisfactory explanation for not producing the additional document viz. S.S.L.C book of the deceased in time M.A.C.A.Nos.1829/2013 & 1992/2013 22 and it is necessary for just disposal of the appeal, it has been received as additional document and marked as Ext.A16. Ext.A16 would prove that his date of birth is 05.05.1950. The accident was on 01.12.2004. So, as on the date of accident and also death on 29.04.2005, he would be 54 years old and not completed 55 years as rightly contended by the learned counsel for the claimants. Since he was 54 years at the time of accident and death, suitable multiplier as per Sarla Verma would be 11.
21. In Pranay Sethi, Constitution Bench of the Apex Court held that the thumb rule of there would be no addition after 50 years will be an unacceptable concept. But taking into account the fact that the salary does not remain the same, when a person is in a permanent job there would always be enhancement due to one reason or other and hence laid down as a thumb rule, that there will be no addition after 50 years will be an unacceptable concept and hence an addition of 15% was fixed if the deceased is between the age of 50 to 60 years and there would be no M.A.C.A.Nos.1829/2013 & 1992/2013 23 addition thereafter. In the case of self employed persons of fixed salary also, an addition of 10% towards future prospects was fixed for the age group of 50 to 60 years. Since the deceased was 54 years old, the amount towards future prospects would be 10%. Hence, the monthly income would be Rs.16,237.53 + 1623.7 (10% of 16237) = Rs.17,860.7/-.
22. In Sarla Verma, the Apex Court held that personal and living expenses of the deceased should be deducted from the monthly income to calculate the contribution to the dependents and when number of dependent family members is between 2 and 3, the deduction towards dependent family members is 1/3 and when number of dependent family members is between 4 and 6 the deduction would be ¼ and it would be 1/5 when the number of family members exceeds six and that is followed in Resma Kumari & Ors. V. Madan Mohan & Anr : 2013 (9) SCC 65 and approved by the Constitution Bench in Pranay Sethi. In this case, Rs.5,953.50/- [1/3 rd of Rs.17,860.70/-] is to be deducted towards personal and living expenses. Then the total M.A.C.A.Nos.1829/2013 & 1992/2013 24 monthly contribution to family would be Rs.11,907.20/- [17,860.70 - 5,953.50]. So, compensation towards loss of dependency would be Rs.15,71,750/- [Rs.11,907 x 12 x 11]. From that, Rs.9,90,000/-, the amount already awarded by the Tribunal is to be deducted. Then the balance amount under the head loss of dependency would be Rs.5,81,750/- [Rs.15,71,750
- Rs.9,90,000].
23. Next contention of the learned counsel for the claimants is with regard to the compensation awarded under conventional heads. In Pranay Sethi, Constitutional Bench has fixed the compensation under the conventional heads, as Rs.15,000/- each towards loss of estate and funeral expenses and Rs.40,000/- towards loss of consortium. That has been followed in Magma General Insurance Co. Ltd., with an expansion of the consortium as 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 M.A.C.A.Nos.1829/2013 & 1992/2013 25 respect to a spouse, it would include sexual relations with the deceased spouse and 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 in the case of an accidental death of a child.
24. The Apex Court in Rasmita Biswal & Others v. Divisional Manager, National Insurance Company Ltd., & Another (CDJ 2021 SC 1024) has awarded 10% increase to the conventional heads taking into account the directions in Pranay Sethi for 10% enhancement after every three years. Accordingly the claimants in that case were awarded 16,500/- each towards loss of estate and funeral expenses and Rs.44,000 towards spousal consortium by giving 10% enhancement to Rs.15,000/- each as well as to Rs.40,000/-. The accident in that case, was on 9.5.2013. In pranay Sethi the Apex Court while declaring 10% enhancement in every three years did not make any reference with respect to the date of accident also. Hence M.A.C.A.Nos.1829/2013 & 1992/2013 26 claimants are entitled to get 10% escalation of conventional heads.
25. In the present case, claimants 1 to 3 are entitled for consortium, that is the first claimant is entitled for spousal consortium and claimants 2 and 3 are entitled for parental consortium. So, claimants are entitled to a total amount of Rs.1,32,000/- [Rs.44,000/- x 3] towards loss of consortium and Rs.16,500/- towards loss of estate and Rs.16,500/- towards funeral expenses. Rs.5,000/- each has already been awarded towards loss of estate and funeral expenses. That has to be deducted. So, under those heads claimants are entitled to get additional compensation of Rs.11,500/- each. Total Rs.23,000/-. Rs.30,000/- already awarded towards consortium is also to be deducted. Once the compensation is awarded under the head of consortium, claimants would not be entitled to get any amount towards loss of love and affection. (See The New India Assurance Company Limited v. Somwati (2020 (9) SCC
644). Hence Rs.25,000/- awarded towards love and affection to M.A.C.A.Nos.1829/2013 & 1992/2013 27 the wife and children to be deducted i.e. Rs.1,32,000 - (Rs.30,000 + Rs.25000) = Rs.77,000/-. So, the total amount under conventional heads would be Rs.77,000 + Rs.23,000 = Rs.1,00,000/-. Hence the total enhanced compensation would be Rs.5,81,750/- + Rs.1,00,000 = Rs.6,81,750/-.
26. In the result, M.A.C.A.No.1829 of 2013 is allowed by enhancing compensation to an amount of Rs.6,81,750/- (Rupees six lakhs eighty one thousand seven hundred and fifty only) which will carry interest @ 7.5% per annum from the date of petition till realization. The 3rd respondent, Insurance Company, shall satisfy additional compensation granted in this appeal together with interest within a period of two months from the date of receipt of certified copy of this judgment. M.A.C.A.No.1992 of 2013 stands dismissed.
27. The disbursement of additional compensation to the appellants/claimants shall be made taking note of the law on the point and in terms of the directives issues by this Court in Circular No.3 of 2019 dated 6.9.2019 and clarified further in M.A.C.A.Nos.1829/2013 & 1992/2013 28 Official Memorandum No.D1-62475/2016 dated 7.11.2019. The claimants shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment.
(sd/-) M.R.ANITHA, JUDGE
jsr
True Copy
P.S to Judge