Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K.NARENDRAN, J.
Chandran, Vellauthan and Ors – Appellant
Versus
Viju S/o. Raphel and Ors – Respondent
MACA.No.4591 of 2019(D)
Decided On : 30-01-2020
Constitution of India- Article 141 - The Motor Vehicles Act- Section 166 -The concept of spousal consortium to the surviving spouse; parental consortium to the children of the deceased; and filial consortium to the parents of the deceased child laid down by the Apex Court in Magma General Insurance Company Ltd. does not speak anything as to the right of siblings to get compensated under the head loss of consortium. In Magma, after noticing the fact that the mother of the deceased had predeceased him, his father was aged 65 years old, his sister was unmarried, and the deceased was contributing a part of his meagre income to the family for their sustenance and survival, the Apex Court granted a sum of Rs.40,000/-as compensation to unmarried sister of the deceased under the head filial consortium, after maintaining the compensation (Rs.50,000/-x 2) awarded by the High Court towards loss of love and affection, which can only be treated as a direction issued by the Apex Court in exercise of its powers under Article 142 of the Constitution of India to do proper justice and the exercise of such power cannot be considered as law laid down by the Apex Court under Article 141 of the Constitution of India.
Statement of facts:
The appellants are the claimants in O.P.(MV)No.874 of 2013 on the file of the Motor Accidents Claims Tribunal, Thrissur, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Salish, son of appellants 1 and 2 and brother of the 3rd appellant, in a motor accident which occurred on 15.02.2013, while he was riding a motorcycle bearing registration No.KL-08/AN-1462. At the place of accident, the motorcycle was hit by an autorikshaw bearing registration No.KL-08/P-2948, driven by the 1st respondent, owned by the 2nd respondent and insured with the 3rd respondent. The said autorikshaw was towing another autorikshaw bearing registration No.KL-08/Y-461 owned and driven by the 4th respondent and insured with the 5th respondent. In the accident, he sustained fatal injuries, who succumbed to the injuries on the date of accident itself. Alleging that the accident occurred due to rash and negligent driving of autorikshaws by the 1st and 4th respondents, claim petition was filed before the Tribunal, claiming a total compensation of Rs.25,00,000/- under various heads.
Finding of Court:
The appellants/claimants are entitled for payment of an additional compensation of Rs.1,17,800/-(Rupees one lakh seventeen thousand and eight hundred only) [1,42,800 -(20,000 + 5,000)] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. The additional compensation granted in this appeal, excluding that granted to appellants 1 and 2 as filial consortium, shall be apportioned among the appellants in the ratio 40:50:10. The 3rd respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellants/claimants towards Balance Court Fee and Legal Benefit Fund. 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 issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019
Result: Appeal is disposed of
JUDGMENT :
1. The appellants are the claimants in O.P.(MV)No.874 of 2013 on the file of the Motor Accidents Claims Tribunal, Thrissur, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Salish, son of appellants 1 and 2 and brother of the 3rd appellant, in a motor accident which occurred on 15.02.2013, while he was riding a motorcycle bearing registration No.KL-08/AN-1462. At the place of accident, the motorcycle was hit by an autorikshaw bearing registration No.KL-08/P-2948, driven by the 1st respondent, owned by the 2nd respondent and insured with the 3rd respondent. The said autorikshaw was towing another autorikshaw bearing registration No.KL-08/Y-461 owned and driven by the 4th respondent and insured with the 5th respondent. In the accident, he sustained fatal injuries, who succumbed to the injuries on the date of accident itself. Alleging that the accident occurred due to rash and negligent driving of autorikshaws by the 1st and 4th respondents, claim petition was filed before the Tribunal, claiming a total compensation of Rs.25,00,000/- under various heads.
2. Before the Tribunal, respondents 1, 2 and 4 remained absent and they were set ex parte. The 3rd respondent insurer of the autorikshaw bearing registration No.KL-08/P-2948 filed written statement admitting insurance coverage of the said vehicle; however, denying negligence alleged against the 1st respondent. The said insurer contended that the accident occurred due to the rash and negligent driving of the autorikshaw bearing registration No.KL-08/Y-461 by the 4th respondent.
3. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellants/claimants. Exts.B1 to B3 were marked on the side of the respondents. Both sides have not chosen to adduce any oral evidence.
4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of autorikshaw bearing registration No.KL-08/P-2948 by the 1st respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3rd respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.12,86,400/-together with interest at the rate 8% per annum from the date of petition, i.e., from 16.05.2013, till the date of realisation, with proportionate cost and directed the 3rd respondent insurer to satisfy the award.
5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellants/claimants are before this Court in this appeal.
6. Heard the learned counsel for the appellants/claimants and also the learned Standing Counsel for the 3rd respondent insurer.
7. The issue that arises for consideration in this appeal is as to whether the appellants/claimants are entitled for enhancement of the compensation awarded by the Tribunal under various heads.
8. Learned counsel for the appellants/claimants would submit that the appellants are confining the challenge made in this appeal as to one regarding inadequacy of compensation granted under the head loss of dependency.
9. On the other hand, learned Standing Counsel for the 3rd respondent insurer would point out that the compensation awarded by the Tribunal under the head pain and suffering and loss of love and affection are on the higher side, which have to be scaled down.
10. In Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] the Apex Court laid down the principles governing determination of quantum of compensation in the case of death in a motor accident. The Apex Court held that, the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. Just compensation is adequate compensation which is fair and equitable, on the facts and
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
