Senior Citizen Offsprings Of 94-Yr-Old Who Died In Road Accident Entitled To Compensation For 'Loss Of Parental Consortium': Kerala High Court

The Kerala High Court recently considered the issue as to whether the children of a nonagenarian road accident victim, who are themselves senior citizens, would be entitled to compensation for 'Loss of Parental Consortium'. 

Noting that the Tribunal had awarded an amount of Rs. 40,000/- under the head 'Loss of Love and Affection', which was challenged by the counsels for the Insurance Company on the ground that no amount could have been granted under that head since the claimants of the deceased were all senior citizens themselves, the Single Judge Bench of Justice Devan Ramachandran observed, 

"I am afraid that this argument is too farfetched to be even countenanced because, whatever be the age of the father or the children, their relationship continues till the end; and for every father, his offsprings are always children". 

Holding that the Tribunal did not err in granting compensation to the claimants under the head 'Loss of Love and Affection', although it should have actually been 'Loss of Consortium', the Court went on to add, 

"When consortium becomes payable to children, it does not mean that it will be only eligible to a girl or boy under the age of 14, as has now been attempted to be argued by the learned Senior Counsel, but even to a person much beyond that age, if the premature death of his/her father/mother is on account of a road accident". 

The factual matrix reveals that the deceased nonagenarian had been knocked down by a vehicle that was being driven in a rash and negligent manner, and had succumbed to his grievous injuries. The children of the deceased had thereafter, filed a petition before the Motor Accidents Claims Tribunal, Pathanamthitta, seeking compensation of Rs.10,00,250/-. The Tribunal however, only allowed compensation to the extent of Rs.5,35,260/-. This has been challenged before the High Court by the children of the deceased on the one hand pointing it to be inadequate, and the Insurance Company on the other hand, assailing it to be too high an amount on the other hand in the two petitions. 

It was argued by the counsels for the Insurance Company that since the deceased was 94 years at the time of the accident, it would be impossible to believe that he was earning anything and no notional income could thus be reckoned in his favour. The counsels also placed reliance on the Apex Court decisions in National Insurance Co. Ltd. v. Pranay Sethi (2017), and Magma General Insurance Company Limited v. Nanu Ram Alias Chuhru Ram & Ors. (2018), wherein it had been declared that 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. The counsels also stressed that no amount of 

On the other hand, it was argued by the counsels for the heirs of the deceased that the deceased had been a businessman involved in timber brokering and real estate, with an income of Rs.24,000/- per month, and that the adoption of a mere Rs.5,000/- per month as the notional income of the deceased by the deceased was improper. It was also pointed out that the Tribunal had erred in deducting one half of the notional income towards his personal expenses, and that only one-fourth ought to have been deducted. The counsels argued that this was because the claimants were the legal heirs of the deceased, and were thus, his dependents. 

It is in this context that the Court discerned that there were three main issues in the case which were firstly, what the notional income to be adopted in favour of the deceased ought to be, secondly, whether the claimants would be entitled to the grant of any amount under 'Loss of Parental Consortium', and lastly, the corollary issue as to whether the Tribunal was correct in having deducted one-half of the notional income of the deceased, towards personal expenses. 

Notional Income of the Deceased

Regarding the notional income of the deceased person, the Court found that there was no evidence to prove that he was not employed or capable of earning. It therefore ascertained that an income ought to be reckoned in his favour and compensation granted. 

"...the uncontroverted pleadings on record by the claimants are to the effect that the deceased was a 'Timber Broker-cum-Real Estate businessman' and that he was earning an income of Rs.24,000/- per month. Since the factum of the deceased working in the afore fashion being unassailed, that part certainly will have to be taken into account, while considering the income for the purpose of computing the compensation for 'Loss of Dependency'," the Court observed. 

The Court was of the considered opinion that the Tribunal ought to have been guided by the standardization postulated by the Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. (2011), wherein the minimum notional income to be reckoned was ascertained to be Rs. 11,000/- even in case of a person with unascertainable income. Going by the same, the Court observed, 

"Of course, since the deceased was 94 years old at that time, I am of the view that no future prospects deserves to have been added. Thus, the adoption by the Tribunal of only Rs.10,000/- as his notional income, cannot find my favour. I am certainly of the view that the notional income ought to have been taken as Rs.11,000/- and this answers the contentions of both sides, though they are contrary to each other on this issue". 

Deduction of Personal Expenses

As regards the deduction of personal expenses, the Court did not find that the Tribunal had erred in deducting one-half of the income of the deceased, since, 

"...none of the claimants can be seen to be financially dependent upon their 94 year old father, particularly when they themselves are all senior citizens; and hence the same yardstick as would be applied in the case of a bachelor, would have to be pressed into service in this case". 

The Court thus held the same yardstick to be applicable herein. 

Loss of Parental Consortium

As regards the amount granted towards 'Loss of Love and Affection' by the Tribunal, the Court rejected the submissions by the counsels for the Insurance Company that no amount ought to have been granted. Although it agreed that no amount need to have been granted towards 'Loss of Love and Affection', it observed that the same would not be of any consequence since, "the amount granted is Rs.40,000/- each to the claimants and it is thus obvious that it is, in fact, reckoned as compensation for 'Loss of Parental Consortium'". 

The Court emphasized the word 'child' or 'children' is only used to refer to the relationship between the deceased and the claimants and was not to be interpreted in the manner it has been defined in special statutes such as the Juvenile Justice (Care and Protection of Children) Act, 2015; or the Protection of Children from Sexual Offences Act, 2017; or the Commission for Protection of Child Rights Act, 2005.

However, the Court did find force in the argument that no amount ought to have been awarded under the head 'Pain and Suffering' by the Tribunal. 

Resultantly, the Court revised the compensation under the head 'Loss of Dependency' to Rs.3,30,000/- from Rs.3,00,000/-, reckoning the notional income of the deceased to be Rs.11,000/- per month and one-half of the same being deducted towards his personal expenses, and deleted the compensation under the head 'Pain and Suffering'. It clarified that in all other heads, the compensation granted by the Tribunal would remain intact.

The Court thereby granted liberty to the claimants to recover the compensation, as enhanced by the Court, from the Insurance Company, along with interest at the rate of 9%, as awarded by the Tribunal, from the date of claim until it is recovered. It added that they would also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal.

The Insurance Company was represented by the Standing Counsel George Cherian, and Advocates K.S. Santhi, and Latha Susan Cherian. Advocate Steffy VJ appeared on behalf of the claimants. 

Case Title: New India Assurance Co. Ltd. v. Gopinathan K.K. & Ors. and Gopinathan & Ors. v. Lijo V.J. & Ors. 

Citation: 2023 LiveLaw (Ker) 140 

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