Kerala High Court
Valsamma vs Binu Jose on 2 January, 2013
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY,THE 16TH DAY OF DECEMBER 2013/25TH AGRAHAYANA, 1935
MACA.No. 1239 of 2013 ()
-------------------------
(AGAINST THE AWARD IN OP(MV)NO. 1457/2004 OF MOTOR ACCIDENTS
CLAIMS TRIBUNAL,(ADDL.DISTRICT & SESSIONS COURT-II),
MAVELIKKARA DATED 02-01-2013)
----------------------------------
APPELLANTS/PETITIONERS:
----------------------------------------------
1. VALSAMMA,
PALAKUZHA VEEDU, KARUVATTA NORTH, KARUVATTA P.O.
2. GOPALAKRISHNA KURUP @ KRISHNA PILLAI,
PALAKUZHA VEEDU, KARUVATTA NORTH, KARUVATTA P.O.
BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.MANU SEBASTIAN
RESPONDENTS/RESPONDENTS:
---------------------------------------------------
1. BINU JOSE, BINI BHAVANAM,
MORIPURAM BHAGOM, PERAYAM PANCHAYAT,
KUNDARA, KOLLAM-691 001.
2. M/S.BENZ MOTORS,
BENZ TOWERS, MANGALAM, EDAPPALLY,
ERNAKULAM-682 024.
3. UNITED INSURANCE CO.LTD.,
REP. BY ITS BRANCH MANAGER, BRANCH OFFICE,
KAYAMKULAM-690 502.
4. MANJU,SANTHI BHAVAN,
KARUVATTA THEKKU, KUMARAPURAM-690 548.
R3 BY ADV.SRI.JOHN JOSEPH VETTIKAD
R4 BY ADV. SRI.R.LAKSHMI NARAYAN
SMT.R.RANJINI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 09-10-2013, ALONG WITH MACA.NO. 1860/2013, THE COURT
ON 16-12-2013 DELIVERED THE FOLLOWING:
sts
S.Siri Jagan & K. Ramakrishnan, J
==============================
M.A.C.A.No.1860 & 1239 of 2013
===============================
Dated this, the 16th day of December, 2013.
J U D G M E N T
K. Ramakrishnan, J M.A.C.A.No.1239/13 is filed by claimants in OP(MV)No.1457/04 on the files of the Motor Accidents Claims Tribunal, Mavelikkara, while M.A.C.A No.1860/13 is filed by the claimant in OP(MV) No.13/05 of the same court.
2. Appellants in M.A.C.A.No.1239/13 are the parents of deceased Sreekumar and appellant in M.A.C.A No.1860/13 is the wife of late Sreekumar. They filed the applications for compensation for the death of Sreekumar, who died in a motor vehicle accident caused on account of the rash and negligent driving of a vehicle by first respondent, owned by the second respondent and insured with the third respondent. Both these cases were tried jointly by the Tribunal and disposed of by a common judgment.
3. On the basis of the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by the first respondent and awarded a total compensation of Rs.5,94,000/- on various heads as follows and apportioned the amount between the claimants in the ratio 60% to the wife and 40% to the parents.
Head of claim Amount awarded
(in Rupees)
Funeral expenses 5,000/-
Transportation charges and ambulance charges 1,000/-
Damage to clothing and vehicle 1,000/-
M.A.C.A.No.1860 & 1239 of 2013 : 2 :
Head of claim Amount awarded
(in Rupees)
Pain and sufferings 10,000/-
Loss of dependency/earning power 5,44,000/-
Loss of estate 3,000/-
Loss of love and affection 15,000/-
Loss of consortium 15,000/-
Total 5,94,000/-
Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellants have filed the respective appeals before this court seeking enhancement.
4. In this case, since there were some conflicting decisions of the Supreme Court regarding the manner in which the income has to be ascertained for the purpose of assessing compensation under the head 'loss of dependency' and also the quantum of compensation payable under the conventional heads 'loss of consortium and funeral expenses' etc., we have decided to consider these questions in detail in this case.
5. Heard the counsel for the appellants and counsel for the Insurance Company.
6. The counsel for the appellants submitted that the deceased was working as a spray paint worker in Oman and getting Rs.20,000/- per month, producing Ext.A6 the copy of the agreement with Bahwan Automotive Centre, Sultanate of Oman and Ext.A7 labour card and Ext.A8 passport to prove those facts. But, the Tribunal has discarded these documents and notionally fixed his income as Rs.4,000/-per month, which is palpably low is their contention. Further, in the decision reported in Rajesh v. Rajibir Singh 2013 (3) KLT 89 (SC), the M.A.C.A.No.1860 & 1239 of 2013 : 3 : Honourable Supreme Court has held that even in the case of self employed persons or persons with fixed wages, addition has to be made for future prospects at the rate of 50% for persons aged below 40 years, 30% for persons aged between 40 and 50 years and 15% for persons aged between 50 & 60 years and that a minimum of Rs.1,00,000/- should be awarded under the head 'loss of consortium' and Rs.25,000/- under the head 'funeral expenses'. But, the Tribunal has not considered these aspects and the amount awarded under all heads are very low is the submission of the appellants. So, the appellants are entitled to get enhancement on all heads is their contention.
7. On the other hand, the counsel for the Insurance Company submitted that the wife of the deceased had re-married and as such she is not entitled for loss of consortium and that her dependency has been reduced on account of the re-marriage. In the decision reported in Sarla Verma v. Delhi Transport Corporation, 2010 (2) KLT 802(SC) confirmed in Reshma Kumari v. Madan Mohan 2013 (2) KLT 304 (SC), the Honorable Supreme Court has held that future prospects can be considered only in the case of persons who are having permanent employment and income and not for other persons. So, the Tribunal was perfectly justified in not adding to the income for future prospects in this case is their contention. Since the parents are aged, and the wife has remarried, the total compensation awarded is just and proper and no interference is called for at the hands of this court.
8. We have considered the rival contentions of both parties in detail.
M.A.C.A.No.1860 & 1239 of 2013 : 4 :
9. In case of the conflicting decisions of different Benches of Supreme Court, which have to be followed has been dealt with in detail by a Full Bench of this court in Raman Gopi v. Kunju Raman Uthaman 2011(4) KLT 458, where it has been observed as follows;
"The legal position, which therefore emerges on a discussion and analysis of the principles stated in various decisions of the Apex Court and other High Courts including this Court, so as to act as guidance to the High Courts and Subordinate Courts, when faced with a conflicting decisions, are summarized below:-
(i) In case of conflicting views taken in the decisions of two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one;
(ii) What is binding is the ratio decidendi. A decision is only an authority for what it actually decides.
(iii) A decision which is not expressed and is not found on reasons nor proceeds on consideration of issue cannot be deemed to be a law declared to have binding effect as is contemplated by Art.141 of the Constitution. Similarly, any declaration made or conclusion arrived at without application of mind or preceded without a reason, cannot be a declaration of law, or authority as a binding precedent.
(iv) It is well settled that what is the essence of a decision is the ratio and not every observation, nor what logically follows from various observations made in it.
(v) The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding.
It is only the principle laid down in the judgment that is binding law under Art.141 of the Constitution.
(vi) A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law M.A.C.A.No.1860 & 1239 of 2013 : 5 : involved in the decision is not perceived by the court or present to its mind. (Salmond on Jurisprudence 12th Edn.p.153)
(vii) A Division Bench, in case of conflict between the decision of a Division Bench of two Judges and the decision of a larger Bench and in particular, a Constitution Bench, would be bound by the latter decision.
(viii) Per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making specific reference to an earlier binding precedent may. Or may not be correct, but cannot be said to be per incuriam.
10. So, it is clear from the above decision that when there are conflicting decisions of co-ordinate benches of the Apex Court then, the later decision will prevail and the later decision will have to be followed by the Subordinate Courts including the High Court. In the decision reported in Govt. of Karnataka v. Gowramma 2008 KHC 5193 (SC), it has been held that a decision is a precedent on its own facts. Each Case presents its own features. A decision is an authority for what it actually decides. What is the essence is a decision in its ratio and not every observation found therein and not what logically flows from the various observations made in the judgment. Enunciation of the reason or principle on which a question before court has been decided alone is binding as a precedent. In the same decision, it has been held that one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. In the decision reported in M/s Raval and Co. v. K.G.Ramachandran and Others 1974 (KHC) 406 (SC), it has M.A.C.A.No.1860 & 1239 of 2013 : 6 : been held that general observations in Supreme Court decisions cannot apply in interpreting the provisions of an Act unless the court has applied its mind to and analysed the provisions of that particular Act. In the decision reported in Hindustan Lever Limited v. State 2007 KHC 6362, it has been held that if conflict of opinion has been expressed by bench of equal strength, it is open for the High Court to apply principles laid down in either of the judgments which are nearer to facts of the case before it. So, it is clear from the above decisions that when there is conflict of decisions on the same subject rendered by benches of equal strength, then the later decision will prevail. Further, it is the ratio decided in the case that is binding and not the observations made in respect thereof. Further, the dictum laid down in a decision has to be applied on the basis of the facts of that case and applying the dictum without considering the facts blindly is not proper. With these principles in mind, the case in hand has to be considered.
11. The case of the appellants is that the deceased was aged 29 years and working as spray painter in Oman and getting Rs.20,000/- per month. In order to prove the same, they have produced Ext.A5 agreement entered into between the deceased with one Bahwan Automotive Centre, Sultanate of Oman dated 15.05.2001, a labour card Ext.A7 and Ext.A8 passport. But, these documents were not proved in accordance with law. The executant of Ext.A6 was not examined to prove the contents of the same. The passport entry will go to show that he is having visa upto 25.03.2005 and the accident in this case occurred on 18.09.2004. So, those documents are not sufficient to prove that he M.A.C.A.No.1860 & 1239 of 2013 : 7 : is having so much income there. It may be mentioned here that employment in gulf countries is not certain and it is likely to be terminated at any time. So, under such circumstances, it cannot be said that it is a permanent employment as in a government service there. If he is a permanent employee there, then that can be taken as a permanent income and that may be useful to assess the compensation payable to the dependents of the victim on that basis. In the case of a non-permanent employment with uncertainty regarding continuance, it is not safe to rely on that income for the purpose of assessing compensation under the head 'loss of dependency'. So, in such circumstances, we will have to assess the income of the person, in the context of Indian standards, taking the probable income which he may have fetched if he was working in India during the relevant time and the income which he was alleged to have been earning in a Gulf country where the employment of such nature is not permanent and is likely to be terminated at the whims and fancies of the sponsor cannot be relied upon. So, the Tribunal was perfectly justified in not relying on the document produced and the income alleged to have been derived by the deceased at Oman for the purpose of considering the compensation payable on his death.
12. In the decision reported in Sarla Verma v. Delhi Transport Corporation, 2010 (2) KLT 802(SC), it has been held that future prospects can be considered in the case of a permanent employment with permanent income and not in the case of other persons. That was approved by a three bench decision of the Honorable Supreme Court in M.A.C.A.No.1860 & 1239 of 2013 : 8 : Reshma Kumari v. Madan Mohan 2013 (2) KLT 304. But in the decision reported in Rajesh v. Rajbir Singh 2013 (3) (KLT) 89, another three bench decision of the Supreme Court, it has been held that even in the case of self employed persons or persons with fixed wages, addition has to be made in the case of persons below the age of 40, 50 & 60 as well at the rate of 50% for persons aged below 40 years, 30% for persons aged between 40 and 50, 15% for persons aged between 50 & 60 and there shall be normally no addition thereafter. Though, Reshma Kumari's case (supra) of the three bench decision of the Supreme Court which approved Sarla Verma's case (supra) has not been referred to in this decision, since this relates to a point which has not been specifically decided in those cases, this will have to be followed by subordinate courts unless this has been modified by the Supreme Court of a bench of equal strength or larger bench.
13. Considering these aspects, some guess work will have to be made for assessing the income of the deceased who is not having permanent job or self employment but having some fixed income. In this case, the deceased was working as a spray painter and so a person of that caliber in Kerala during 2004 will be getting at least Rs.3,000/- and including his future prospects, his income can be taken as Rs.5,000/-per month, for the purpose of assessing compensation under the head of 'loss of dependency'. So, we are re-fixing the monthly income of the deceased as Rs.5,000/- instead of Rs.4,000/- taken by the Tribunal. Since, the dependents are three in number, 1/3rd has to be deducted for his personal expenses and the correct multiplier is 17. If M.A.C.A.No.1860 & 1239 of 2013 : 9 : recalculation is made on that basis, the appellants will be entitled to get Rs.6,80,000/-(5000x12x17x2/3) instead of Rs.5,44,000/- awarded by the Tribunal under the head 'loss of dependency' and they will be entitled to get an additional amount of 1,36,000/- under that head.
14. In the decision reported in Rajesh (Supra), the Honorable Supreme Court has considered the various aspects which has to be considered while awarding compensation under the head 'loss of consortium' which reads as follows:
"In legal parlance, 'consortium' is the right of the spouse to the company, care,help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head."
15. As per Concise Law Dictionary by P.Ramanatha Iyer, "consortium means, companionship, love, affection, comfort, mutual services, sexual intercourse. All these things belong to the married M.A.C.A.No.1860 & 1239 of 2013 : 10 : state. Taken together they make up consortium. (Smt.Harvinder Kaur Vs.Harmander Singh Choudhry AIR 1984 Delhi 66)". It further says "consortium connotes only the husband and the wife and the companionship, fellowship, or togetherness of the husband and the wife. (Farooque Vs. Municipality Corporation of the city of Ahmedabad and others AIR 1985 Gujarat 114)". Loss of consortium consists of several elements encompassing not only material services but such intangibles as society guidance, companionship and sexual relations. Damages for loss of consortium are commonly sought in wrongful death actions or when spouse has been seriously injured through the negligence of another or by spouse against third persons alleging that he or she has caused breaking up of marriage. Cause of action for consortium occasioned by injury to marriage partner is a separate cause of action belonging to the spouse of the injured married partner and though derivative in the sense of being occasioned by direct injury to the spouse who has lost the consortium.
16. In the case Rajesh (supra), it was observed that it would be only just and reasonable that courts award at least Rs.1,00,000/- for loss of consortium. That was a case where the deceased was aged only 33 years and the unfortunate widow was still younger. Even in that case, Honourable Supreme Court has awarded only Rs.1,00,000/- under the head 'loss of consortium' though it was observed in that decision that at least Rs.1,00,000/- has to be awarded under the head 'loss of consortium'. That indicates that in appropriate cases, court should M.A.C.A.No.1860 & 1239 of 2013 : 11 : award at least a minimum of Rs.1,00,000/- as compensation under the head 'loss of consortium' and not to stick on to the principle that only conventional amount has to be awarded under these heads. The age of the widow and age of the deceased are relevant factors while considering the question of compensation to be awarded for loss of consortium. That may be the reason why even in a case where the deceased was only 33 years, the Honourable Supreme Court has fixed the quantum of compensation payable under the head 'loss of consortium' as Rs.1,00,000/-. Further in another decision of Supreme Court in Minu Rout and another Vs. Staya Pradyumna Mohapatra and others, (Civil Appeal No.7368/2013 dt.02.09.2013) awarded only Rs.50,000/- under all conventional amounts including loss of consortium, relying on the decision reported in Kerala State Road Transport Corporation Vs. Susamma Thomas (1994) 2 SCC 176. It is also to be born in mind that the amount awarded under the conventional heads should not exceed more than the amounts awarded under other heads like special damages and dependency etc.
17. In this case, though the deceased was aged only 29 years and his widow who is the appellant in M.A.C.A.No.1860/13 was still younger at the time of death of her husband, it was brought out in the evidence that she re-married after the death of her former husband. Loss of consortium is intended to compensate the loss caused on account of the death of the spouse to the surviving spouse till his or her death or re-marriage. Once the surviving spouse re-married, then that can be taken into account while awarding compensation under the head 'loss of M.A.C.A.No.1860 & 1239 of 2013 : 12 : consortium'. But at the same time, one will have to bear in mind that she may not be having the same enjoyment or companionship which she was enjoying in her first marriage. She will have to live with her subsequent husband after re-marriage with feelings of the first marriage lingering in her mind which will not give her the full enjoyment one would otherwise expect. But that may vanish as time passes. It is not necessary that she will get the same status in the society as well. So, it cannot be said that a widow who re-married after the death of her former husband is not entitled to get any compensation under the head 'loss of consortium' merely because she re-married. One will have to think about the impact of the death of her former husband at a young age and the crumbling down of her dream of her marital life on account of the untimely death of her husband. So, considering these aspects, and also considering the fact that the widow of deceased Sreekumar who is the appellant in M.A.C.A.No.1860/13 was a young lady at the time of the loss of her husband in the unfortunate accident, and she is now remarried, we feel that an amount of Rs.50,000/-can be awarded under the head 'loss of consortium' instead of Rs.15,000/- awarded by the Tribunal.
18. It is true that in the same decision (Rajesh Supra), it has been observed that the head 'funeral expense' does not mean the fee paid in the crematorium or fee paid for the use of the place in the cemetery. It has been stated in that decision that there are many other expenses in connection with a funeral and if the deceased is a follower of any particular religion, there are several religious practices and M.A.C.A.No.1860 & 1239 of 2013 : 13 : conventions to be followed in case of a death in the family and all those are quite expensive. It has been held therein that it will be just, fair and equitable that under the head 'funeral expenses', in the absence of evidence of any higher expenses, at least an amount of Rs.25,000/-, has to be awarded under that head. But there also, some evidence is required as to the nature of religious ceremony to be followed etc. Even in the absence of such evidence, it is not proper to award a meagre amount under the head 'funeral expenses'. In this case, there is no evidence adduced on the side of the appellants regarding the nature of ceremonies to be followed and probable expenses for funeral and subsequent religious rites to be performed etc. So, under the circumstances, the amount of Rs.15,000/- awarded by the Tribunal in the year 2004 under the head 'funeral expenses' appears to be just and proper and we are not inclined to enhance any amount under that head. The Tribunal has awarded only Rs.15,000/- under the head 'love and affection'. The parents have also lost the support of their son and they will have live to with the feeling of loss of their son for the remaining period of their life. So, considering these aspects, the amount of Rs.15,000/- awarded by the Tribunal under that head appears to be on the lower side and we enhance the same to Rs.25,000/-. We are not inclined to enhance any amount under other heads as we feel that the amounts awarded by the Tribunal under the other heads are just and proper.
19. In all, the appellants will be entitled to get an additional compensation of Rs.1,81,000/- over and above what has been awarded M.A.C.A.No.1860 & 1239 of 2013 : 14 : by the Tribunal which the third respondent Insurance Company is liable to pay with 9% interest from the date of petition till payment. Two months' time is granted to the Insurance Company to deposit this amount as well. The additional amount is also directed to be shared between the petitioners in both cases in the same ratio apportioned by the Tribunal.
With the above modification of the impugned award of the Tribunal, the appeals are disposed of.
Sd/-
S. Siri Jagan, Jugde.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge