K. Karthiyani Amma D/o Ramunni Kurup v. M. Sukumar
2018-09-19
P.R.RAMACHANDRA MENON
body2018
DigiLaw.ai
JUDGMENT : The claimants are the appellants. Challenge is in respect of the inadequacy of compensation awarded by the Tribunal pursuant to death of the son of the first appellant in a road traffic accident. 2. The son of the first appellant was travelling as a passenger in a Tourist Taxi, owned, driven and insured by respondents 1 to 3 respectively on 16.02.1997. While so, the tourist taxi met with an accident causing fatal injuries leading to death of the travellor/son of the first appellant, in turn leading to the claim petition. 3. The deceased was aged 30 years and was working in a private firm in Chennai, with an alleged monthly salary of Rs.6000/-. The policy was admitted by the insurer. The Tribunal found that the accident was solely due to the negligence of the driver of the tourist taxi. Observing that the actual income of the deceased was not substantiated properly, but for production of Ext.A3 DD issued in favour of the first claimant by the employer, the Tribunal took Rs.1500/- as the notional monthly income. Based on the age of the mother, multiplier of 8' was reckoned. The tribunal awarded amounts under different heads, granting a total of Rs.1,15,000/-. But from the figures given in the Award, it appears that there occurred a mistake while totalling the figures and it should have been Rs.1,27,000/- as given below:- Head Amount awarded by the Tribunal (Rs.) Loss of dependency 96000 Loss of earning power 12000 Transportation to hospital 2000 Loss of affection 5000 Compensation for Pain and suffering 10000 Funeral expenses 2000 TOTAL 1,27,000/- The above amount was directed to be satisfied with interest at the rate of 9% per annum from the date of the claim petition, holding it further that only the first claimant/mother was legally entitled to get the benefit. 4. Heard the learned counsel for the appellant and the learned counsel for the Insurance Company at length. 5. Though the actual income was not properly proved, the factum of employment was brought on record with reference to Ext.A3.
4. Heard the learned counsel for the appellant and the learned counsel for the Insurance Company at length. 5. Though the actual income was not properly proved, the factum of employment was brought on record with reference to Ext.A3. Considering the age of the deceased as 29 years (as observed in 'paragraph 9' of the Award), the date of occurrence of the accident and the future prospects, this Court is of the view that fixation of notional monthly income as Rs.1500/- is much on the lower side and it is doubled and refixed as Rs.3000/-, inclusive of future prospects. The Tribunal has adopted the multiplier of 8' based on the age of the mother/first applicant. It is settled law that the multiplier has to be fixed with reference to the age of the deceased/injured and as such, it ought to have been 17'. Since the deceased was a bachelor, only 50% should have been reckoned as contribution to the mother/family, leaving 50% towards personal expenses. On re-working the compensation for loss of dependency, it comes to Rs. 3,06,000/- (3000 x 12 x 50/100 x 17). Hence the appellant is entitled to get a balance sum of Rs.2,10,000/-, (i.e., after deducting the sum of Rs.96000/- already awarded by the Tribunal). 6. The Tribunal has awarded only a sum of Rs.5000/- towards loss of love and affection; which ought to have been compensated to an appropriate extent. This Court refixes it as Rs.40000/-; thus resulting in a deficit of Rs.35,000/- (after giving credit to the sum of Rs.5000/- awarded by the Tribunal). The appellants have claimed Rs.2500/- towards 'loss of estate' in 'Ground No.6 of the appeal. This Court is of the view that a sum of Rs.10000/- is to be awarded under this head, in terms of the precedents laid by the Apex Court, to make it a 'just' award in terms of Section 168 of the Act. Thus, the total additional compensation payable comes to Rs.2,55,000/-. This is in addition to the deficit to be satisfied because of the calculation mistake committed by the Tribunal while showing the total compensation payable as Rs.1,15,000/- in the last two paragraphs of the Award; in place of the actual figures of Rs.1,27,000/-, resulting in a balance of Rs.12000/- as payable; thus making the grand total as Rs.2,67,000/- (Rupees two lakhs and sixty seven thousand only) 7.
It is to be noted that the Tribunal has already awarded interest at the rate of 9% per annum on the award amount. However, the enhanced compensation as above, will carry interest only at the rate of 7.5% per annum from the date of claim petition till satisfaction. 8. Appeal stands allowed to the said extent. 9. The learned counsel for the appellants submits that the appellants are entitled to get 'loss of consortium' and that the same is payable by virtue of recent ruling rendered by the Apex Court in Civil Appeal No.9581 of 2018 arising out of SLP (Civil) No. 3192 of 2018. The said decision explains the meaning of the term 'consortium', which is stated as a compendious term, encompassing 'spousal consortium', 'parental consortium' and 'filial consortium'. It has been stated that 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; adding that, with respect to a spouse, it would include sexual relations with the deceased spouse as well. 'Spousal consortium is payable to the spouse, while the 'parental consortium' is stated as payable to the child upon the premature death of a parent. 'Filial consortium' is stated as a right of the parents to get compensation. In the case of an accidental death of a child, as children are valued for their love, affection, companionship and their role in the family unit, it has been reiterated that the amounts awarded to the parents is a compensation for loss of love, affection, care and companionship of the deceased child. After defining/segregating 'consortium' into three different heads, as above, declaring the right of the spouse/parents/child to get the loss compensated , the verdict cited supra does not speak anything specifically as to the right of a 'sibling' to get compensated in this regard. It was a case where the father of the deceased youth and the unmarried sisters were found as dependants and it was accordingly, that compensation was awarded. The principle to be followed in granting compensation has been observed, as to be effected as per the law declared by the Apex Court in Sarla Verma vs. Delhi Transport Corporation [ 2009(6) SCC 121 ] and that of the Constitution Bench in National Insurance Co. Ltd vs. Pranay Sethi [2017(16)SCC 680]. 10.
The principle to be followed in granting compensation has been observed, as to be effected as per the law declared by the Apex Court in Sarla Verma vs. Delhi Transport Corporation [ 2009(6) SCC 121 ] and that of the Constitution Bench in National Insurance Co. Ltd vs. Pranay Sethi [2017(16)SCC 680]. 10. Since the compensation to be awarded towards 'consortium' has been categorically declared as compensation for loss of love, affection, care and companionship (which in the case of spouse includes sexual relationship as well), it may not be possible to award further compensation under a separate head as loss of love and affection in the instant case, which otherwise may attract overlapping of other relevant heads in respect of the same cause of action. Presumably it is for this reason, that no separate compensation was awarded by the Constitution Bench of the Apex Court in National Insurance Co. Ltd. vs. Pranay Sethi [ (2017) 16 SCC 680 ] towards the loss of 'love and affection', after awarding compensation for 'loss of consortium'. However, in the instant case, the Apex Court awarded compensation for 'loss of love and affection' and also for the loss of 'filial consortium' to the father and unmarried sister, besides awarding compensation for loss of estate. Apparently, the said course has been pursued by the Apex Court in exercise of the power under Article 142 of the Constitution of India, after referring to non-granting of any amount (both by the M.A.C.T and High Court) with respect to loss of consortium and loss of estate, which were cited as other conventional heads, under which compensation was to be awarded in the event of death, as recognised by the Constitution Bench in Pranay Sethi's case (cited supra).(paragraph 8.6 of the judgment in Civil Appeal No.9581 of 2018) 11. In the instant case, this Court, having enhanced the compensation payable for loss of love and affection, care, comfort etc from Rs.5000/- to Rs.40000/-, no other amount is liable to be paid under the head 'loss of filial consortium'.
In the instant case, this Court, having enhanced the compensation payable for loss of love and affection, care, comfort etc from Rs.5000/- to Rs.40000/-, no other amount is liable to be paid under the head 'loss of filial consortium'. This is more so, since, unlike the case dealt with by the Supreme Court (C.A.No.9581 of 2018), it is not a case where any unmarried sister is involved and all the siblings are having independent family of their own, leaving only the first appellant/first claimant (the mother of the deceased) as the sole eligible legal representative, as already held by the Tribunal in the penultimate paragraph (para No.9) of the Award. 12. Since the appeal was filed with a petition to condone the delay of 634 days and further since the service of notice to the respondents 1 and 2 was not completed by taking appropriate steps on time, till today, the appellants are not entitled to get interest on enhanced compensation for the period of delay as already ordered separately while condoning the delay. The third respondent Insurance Company is directed to deposit the amount due before the Tribunal within one month from the date of receipt of a copy of the judgment.