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2025 DIGILAW 564 (KER)

Reliance General Insurance Co. Ltd. v. And Salila

2025-03-12

JOHNSON JOHN

body2025
JUDGMENT : These appeals are filed by the 2 nd respondent insurance company and the claim petitioners challenging the quantum of compensation fixed by the Tribunal as per award dated 25.09.2019 in O.P.(MV) No. 941 of 2017 on the file of the Motor Accident Claims Tribunal, Pathanamthitta. 2. The claim petitioners are the legal heirs of the deceased Pankajakshan, who died in a motor vehicle accident. According to the petitioners, on 28.05.2017 while the deceased was driving an autorickshaw, car driven by the 1 st respondent in a rash and negligent manner caused to hit the autorickshaw and thereby, the deceased sustained serious injuries and subsequently succumbed to his injuries, while undergoing treatment in the hospital. The 1 st respondent is also the owner of the offending vehicle and the 2 nd respondent is the insurer. 3. Before the Tribunal, Exhibits A1 to A10 were marked from the side of the petitioners and no evidence adduced from the side of the respondents. The Tribunal arrived at a finding that the accident occurred because of the negligence on the part of the 1 st respondent and that respondents 1 and 2 are jointly and severally liable to pay compensation to the petitioners. The Tribunal awarded a total compensation of Rs.9,02,030/- to the petitioners. 4. Heard Sri. Tapas Varma A., the learned counsel for the appellant insurance company and Sri. T.K. Koshy, the learned counsel for the appellant claim petitioners. 5. The learned counsel for the appellants/claim petitioners argued that the deceased was aged 65 years and he was driving his own autorickshaw at the time of accident and for the reason that no document is produced to prove the income of the deceased, the Tribunal fixed only a notional income of Rs.13,000/- and the same is on the lower side. It is argued that the occupation of the deceased as an autorickshaw driver is not seriously disputed and therefore, the Tribunal ought to have accepted the minimum wages of a skilled worker for fixing the income of the deceased. In this connection, the learned counsel for the appellants cited the decision of the Honourable Supreme Court in Manusha Sreekumar and Others v. United India Insurance Co. Ltd., [ 2022 KHC 7106 ], wherein it was held as follows in paragraph 20: “20. Schedule B - Category III of the Kerala Fair Wages Act classifies a driver as a “Skilled worker”. Ltd., [ 2022 KHC 7106 ], wherein it was held as follows in paragraph 20: “20. Schedule B - Category III of the Kerala Fair Wages Act classifies a driver as a “Skilled worker”. Reading this in conjunction with the Notification that came into effect from 01/01/2015 which amended Schedule A of the Kerala Fair Wages Act , prescribing a minimum pay scale of the workers listed in Schedule B, it is apparent that a 'driver' in Kerala earned a minimum of Rs. 15,600/- in 2015. It appears to us that the aforesaid Act and the notification issued thereunder were not brought to the notice of the Tribunal or the High Court. As a result thereto, the High Court could not be cognizant of the statutory mandate prescribing minimum wages for a skilled worker like 'driver', and thus, erred in fixing the income of the Deceased at Rs.10,000/-. We are therefore inclined to fix the income of the Deceased notionally at Rs. 15,600/- per month.” In view of the minimum wages of a skilled worker in Kerala, I find that the monthly notional income of the deceased can be fixed at Rs.15,600/- for the purpose of calculating the compensation. 6. The Tribunal accepted 7 as the multiplier applicable and deducted one-third of the income towards personal and living expenses of the deceased by following the decision of the Honourable Supreme Court in Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] and the same is not under challenge. Thus, while re assessing the compensation for loss of dependency as per the revised criteria, the amount would come to Rs.8,73,600/- [15600 x 12 x 7 x 2/3]. The Tribunal has already granted Rs.7,28,028/- under this head and therefore, the appellants/claim petitioners are entitled for additional compensation of Rs.1,45,572/- under this head. 7. The learned counsel for the respondent insurance company argued that the Tribunal has granted Rs.15,000/- towards pain and sufferings of the deceased, even though it is in evidence that he died on the same day. Section 2 of the Kerala Torts (Miscellaneous Provisions) Act, 1976 shows that the right to sue for compensation for pain and suffering would survive upon the legal heirs, if the injured died at a later point of time. 8. Section 2 of the Kerala Torts (Miscellaneous Provisions) Act, 1976 shows that the right to sue for compensation for pain and suffering would survive upon the legal heirs, if the injured died at a later point of time. 8. In Jyni and Others v. Raphel P. T. and Others [ 2016 (2) KHC 870 ], a Division Bench of this Court held as follows: 36. Death in an accident is generally the result of violent impact on the body resulting in serious injuries causing severe pain. The magnitude of the ordeal may vary from case to case depending upon the nature of injuries sustained. In cases of instantaneous deaths also pain and suffering is invariably present, as in the case of survival for hours or days. In cases of instantaneous death as well as cases where the deceased was unconscious between the time of accident and the time of his death, some notional amount is payable under the head pain and suffering. A slightly higher amount can be awarded under this head, if the death is not instantaneous. Therefore, a conventional amount in the range of Rs.5,000/- to Rs.15,000/- could be awarded under the head pain and suffering in such cases. In the instant case, the deceased succumbed to injuries on the date of accident itself. In such circumstances, Rs.10,000/- awarded by the Tribunal under the head pain and suffering represents just and reasonable compensation, which requires no enhancement in this appeal.” Since the deceased died on the same day after a few hours of the accident, I find that the reasonable compensation for pain and sufferings of the deceased can be fixed as Rs.10,000/-. 9. The learned counsel for the appellant insurance company argued that the Tribunal allowed Rs.40,000/- towards loss consortium to the 1 st petitioner, who is the widow of the deceased, and also allowed Rs.40,000/- each towards loss of love and affection to petitioners 2 and 3, who are the children of the deceased, and that the compensation under the heads of ‘loss of love and affection’ and ‘loss of consortium’ cannot be granted to each legal representative of the deceased, in view of the decision of the Honourable Supreme Court in Shriram General Ins.Co.Ltd. v. Bhagat Singh Rawat ( 2023 KHC Online 7244 ). 10. The learned counsel for the appellants/claim petitioners cited the decision of the Honourable Supreme Court in New India Assurance Co. 10. The learned counsel for the appellants/claim petitioners cited the decision of the Honourable Supreme Court in New India Assurance Co. Ltd. v. Somwati [ (2020) 9 SCC 644 ], wherein the Honourable Supreme Court relied on a three-Judge Bench decision of the Honourable Supreme Court in United India Insurance Co. Ltd. v. Satinder Kaur [ (2021) 11 SCC 780 ], and held as follows in paragraphs 37 and 38: “37. The learned counsel for the appellant has submi that Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] has only referred to spousal consortium and no other consortium was referred to in the judgment of Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] , hence, there is no justification for allowing the parental consortium and filial consortium. The Constitution Bench in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] has referred to amount of Rs 40,000 to the “loss of consortium” but the Constitution Bench had not addressed the issue as to whether consortium of Rs 40,000 is only payable as spousal consortium. The judgment of Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] cannot be read to mean that it lays down the proposition that the consortium is payable only to the wife. 38. The three-Judge Bench in United India Insurance Co. Ltd. [ United India Insurance Co. Ltd. v. Satinder Kaur , (2021) 11 SCC 780 : 2020 SCC OnLine SC 410] has categorically laid down that apart from spousal consortium, parental and filial consortium is payable. We feel ourselves bound by the above judgment of the three-Judge Bench. We, thus, cannot accept the submission of the learned counsel for the appellant that the amount of consortium awarded to each of the claimants is not sustainable. ” 11. As noticed earlier, the Tribunal granted Rs.40,000/- as consortium to the 1 st petitioner and Rs.40,000/- each to petitioners 2 and 3 towards loss of love and affection. We, thus, cannot accept the submission of the learned counsel for the appellant that the amount of consortium awarded to each of the claimants is not sustainable. ” 11. As noticed earlier, the Tribunal granted Rs.40,000/- as consortium to the 1 st petitioner and Rs.40,000/- each to petitioners 2 and 3 towards loss of love and affection. It is well settled that loss of love and affection is comprehended in loss of consortium and in view of the decisions of the Honourable Supreme Court referred above, I find no reason to interfere with the compensation fixed by the Tribunal under conventional heads. Since the compensation for pain and sufferings is already reduced to Rs.10,000/-, the appellants/claim petitioners are entitled for an additional compensation of Rs.1,40,572/- (Rupees One Lakh Forty Thousand Five Hundred and Seventy Two only). In the result, M.A.C.A. No.271 of 2020 is dismissed and M.A.C.A No. 953 of 2020 is allowed in part and a total amount of Rs.1,40,572/- (Rupees One Lakh Forty Thousand Five Hundred and Seventy Two only) is awarded as enhanced compensation. The said amount shall carry interest at the rate of 9% per annum from the date of the application till realization. The appellants/claim petitioners would also be entitled to proportionate costs in the case. The claimants shall furnish the details of the bank account to the insurance company for transfer of the amount.