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2023 Supreme(Ker) 116
IN THE HIGH COURT OF KERALA AT ERNAKULAM
DEVAN RAMACHANDRAN, J.
The New India Assurance Co.Ltd. – Appellant
Versus
Gopinathan K.K. – Respondent
MACA Nos.4653 of 2019, 199 of 2023
Decided on : 01-03-2023
Advocate Appeared:
For the Appellant : SRI.GEORGE CHERIAN, K.S.SANTHI, SMT.LATHA SUSAN CHERIAN
For the Respondent: SMT.STEFFY V.J.
Point of Law: Had deceased been a bachelor, deduction for personal expenses could have been one-half.
Headnote:
Road accident - Nonagenarian person - Notional income - Two main aspects are porpoised for decision by this Court in this Appeal, what should be notional income of a nonagenarian person who is killed in a road accident; and if his/her children who are themselves senior citizens can be granted compensation for Loss of Parental Consortium – When consortium becomes payable to children, it does not mean that it will be only eligible to a girl or boy under age of 14 - Para 19.
Finding of the Court :
When consortium becomes payable to children, it does not mean that it will be only eligible to a girl or boy under age of 14, as has now been attempted to be argued by learned Senior Counsel, but even to a person much beyond that age, if premature death of his/her father/ mother is on account of a road accident - Court, therefore, is left without doubt that Tribunal did not err in granting compensation to claimants under head "Loss of Love and Affection", though it should have been titled "Loss of Consortium" – Court find some force in submissions of learned Standing Counsel that no sum under head "Pain and Suffering" ought to have been granted by Tribunal, as per Satinder Kaur (supra) - Compensation under head "Loss of Dependency" is revised to Rs.3,30,000/- reckoning notional income of deceased to be Rs.11,000/- per month and one-half of same being deducted towards his personal expenses.
Result: Appeals disposed of.
JUDGMENT :
[MACA Nos.4653/2019, 199/2023]
Focally, two main aspects are porpoised for decision by this Court in this Appeal, namely, what should be the notional income of a nonagenarian person who is killed in a road accident; and if his/her children – who are themselves senior citizens – can be granted compensation for “Loss of Parental Consortium”.
2. Among the two Appeals above -which have been heard together, since they emanate from the same Award of the Motor Accidents Claims Tribunal (‘Tribunal’, for short), Pathanamthitta -MACA No.4653/2019 has been filed by the New India Assurance Company Limited (‘Insurance Company’, for short), impugning it as being excessive; while MACA No.199/2023 has been filed by the claimants, contending to the contrary and seeking enhancement.
3. The constitutive facts involved in these cases are that late Kuttan Karutha was standing on the side of a main road, when he was knocked down by the offending vehicle driven in a rash and negligent manner, he being thus grievously injured. Though he was taken to a private hospital and then referred to the Medical College Hospital, Kottayam, he succumbed to the injuries later.
4. The claimants -children of the deceased-filed OP(MV)No.1663/2017 before the Tribunal seeking compensation of Rs.10,00,250/-, but which has been allowed only to the extent of Rs.5,35,260/-. They challenge it, through MACA No.199/2023, as being inadequate; while, as said above, the Insurance Company filed MACA No.4653/2019 assailing it as being too high.
5. I have heard Sri.George Cherian, learned Senior Counsel, instructed by Smt.Latha Susan Cherian – learned counsel, appearing for the Insurance Company and Smt.Steffy V.J. -learned counsel for the appellants in MACA No.199/2013.
6. The main points of controversy between the parties are as regards the notional income reckoned by the learned Tribunal in favour of the deceased; and if compensation under the head “Loss of Consortium”, could have been granted to the claimants, since they were all over 60 years in age.
7. Sri.George Cherian -learned Senior Counsel, submitted that, since the deceased was 94 years at the time of the accident, it is impossible to believe that he was earning anything and therefore, that a notional income could not have been reckoned in his favour. He then predicated that, going by the judgment of the Hon’ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)], reaffirmed in Magma General Insurance Company Limited V. Nanu Ram Alias Chuhru Ram & Others [(2018) 18 SCC 130], only a "child" would be entitled to compensation for “Loss of Consortium” of a father, who was killed prematurely in an accident, and not senior citizens.
8. Sri.George Cherian concluded his submissions saying that, in any event, no amount ought to have been granted by the Tribunal under the head “Pain and Suffering”, going by the judgment of the Hon’ble Supreme Court in United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780].
9. Au contraire, Smt.Steffy V.J. argued that it is uncontroverted that the deceased, though aged 94 years at the time of the accident, was a businessman involved in timber brokering and real estate, with an income of Rs.24,000/-per month. She argued that, therefore, the adoption by the Tribunal of a mere Rs.5,000/-per month as the notional income of the deceased was improper; and further that the Tribunal erred in deducting one half of it towards his personal expenses. She argued that the Tribunal ought to have taken the income of the deceased to be Rs.24,000/-per month and should have deducted only one-fourth of that for personal expenses, because the claimants are his legal heirs and therefore, dependents.
10. When I evaluate and assess the afore submissions, it is indubitable that there are broadly two issues impelled, namely: (a) what is the notional income to be adopted in favour of the deceased, who was 94 years of age at the time of the accident; and
