(Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, praying to set aside the Decree and Judgment dated 03.08.2022 passed in MCOP No.137 of 2018 by the learned Additional District Judge (Motor Accident Claims Tribunal), Chengalpattu.)

E. Manoharan, J.

1. This Civil Miscellaneous Appeal has been preferred by the Appellant Insurance Company to set aside the decree and judgment passed by the learned Additional District Judge, (Motor Accident Claims Tribunal), Chengalpattu in MCOP.No.137 of 2018 dated 03.08.2022.

2. The germane facts which leads to the filing of the present Civil Miscellaneous Appeal is as follows:

                   2.1. The claim petition was filed by the respondents 1 and 2 herein/claimants before the Tribunal, who are none other than the parents of the deceased Santhanam as against the third respondent/PSB Polytechnic College and the Appellant herein/Reliance General Insurance Company Limited. The claimants have filed the claim petition seeking compensation for the death of their son Late Mr.Santhanam, who died in a road accident on 01.07.2018 at 13.30 hrs at Chengelpattu bye-pass road near Iyyappan Koil caused by the third respondent bus bearing registration No.TN-19-2427. The claimants had restricted their claim to Rs.25 lakhs. The claimants before the Tribunal had stated that due to the over speed of the offending bus, the driver had lost control of the vehicle and hit their son and his friend, who were standing in the extreme portion of the road with their two wheeler. In the said occurrence, their son Mr.Santhanam aged about 29 years had succumbed to the injuries. The claimants had stated that the accident had occurred only due to the rash and negligent driving of the third respondent’s bus driver. They had also stated that their son was only 29 years old at the time of his death and he was working as a Mechanic in the private concern namely, White House at Guduvancheri and was earning a sum of Rs.14,256/- as monthly income and the entire family was dependent on his income. It was submitted that the Appellant Insurance Company herein with whom the third respondent bus is insured are vicariously and statutorily liable to compensate the claimants/parents of the deceased.

                   2.2. The third respondent herein remind ex-parte before the Tribunal and the Appellant / Insurance Company was represented and appeared before the Tribunal. The Insurance Company has taken a stand that the said petition is not maintainable by denying the allegations made therein by the claimants. They have stated that the driver has not holding a valid licence and he was also under the influence of alcohol and therefore, there is violation of the terms and conditions of the policy. The Insurance Company has stated that the compensation claimed is highly excessive and seeks for dismissal of the claim petition.

                   2.3. Hearing the parties, the Tribunal has framed the following questions:

                   i) Who is negligent for the accident?

                   ii) Who is liable to pay compensation?

                   iii) Whether the petitioners are entitled to compensation, if so, what is the quantum?

                   2.4. On the side of the claimants, the first claimant therein (Gunasundari /R1 herein) was examined as PW1 and exhibits namely, Ex.P1 to Ex.P17 were marked, eye witness was examined as PW2 and on the side of the second respondent therein/Insurance Company (Appellant herein), neither any witness was examined nor any document was marked. The Tribunal heard the parties and held that the accident had occurred due to the negligent driving of the third respondent bus driver and that at the time of accident, the Insurance Company’s policy was in force and therefore, the Insurance Company as well as the third respondent herein are jointly and severally liable to pay the compensation to the respondents/claimants.

                   2.5. With regard to the quantum of compensation, the Tribunal had taken various categories into consideration and awarded the compensation as under:

                   S.I.No. Heads Total Award Rs.

                   1 Loss of Earning Rs.21,91,168/-

                   2 Transport to Hospital Rs.5000/-

                   3 Funeral Expenses Rs.16,500/-

                   4 Loss of Estate Rs.16,500/-

                   5 Compensation for Love and affection Rs.50,000/-

                   6 Damages to clothing and articles and vehicle Rs.1000/-

                   7 Compensation for pain and suffering Rs.1,00,000/-

                   8 Loss of Consortium Rs.88,000/-

                   Total Rs.24,58,168/-

                   2.6. The Tribunal had directed the appellant and third respondent herein jointly and severally to pay the above said compensation with interest of 6% p.a., from the date of the petition i.e., 01.11.2018 to till the date of deposit of the compensation and the said award amount of compensation was equally to apportioned to each of the parents of the deceased.

3. As against the said award of the Tribunal, the Insurance Company has preferred the present Civil Miscellaneous Appeal.

4. The Appellant Insurance Company has challenged the award on the ground that the award was passed without taking into consideration the valid documents and evidence. The Appellant has stated that the deceased was not wearing helmet which is in violation and for that said act and 15% has to be deducted towards contributory negligence. The Insurance Company had also raised the ground to the effect that the Tribunal has failed to deduct the personal expenses properly and had incorrectly fixed 50% instead of 40%. It is submitted that Tribunal had also made an error by computing the award in the categories viz., love and affection, pain and sufferings and loss of consortium. The Appellant has also questioned the rate of interest and prayed that the Appeal be allowed.

5. Heard the learned counsels on either side and also perused the materials available on record.

6. Insofar as the question of loss of earning is concerned, calculating the loss of earning of the deceased, the Tribunal has taken 50% by way of future prospectus. It is seen from the decision of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. v. Pranay Sethi reported in 2017 (16) SCC 680, the percentage for calculating the income for the purpose of future prospectus of the deceased should be 40% and not 50% as stated by the Tribunal. In this regard, the relevant paragraph is extracted hereunder:

                   “59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.”

7. It is seen that the deceased worked in a private concern and was earning a sum of Rs.14,256/- as salary and therefore, taking into consideration the above, the calculation is reworked as follows:-

40% of the monthly income of Rs.14,256/- is Rs.5702.40 which is rounded off to Rs.5703/- adding this to the monthly income, the amount arrived at is Rs.19,959/- which is rounded off to Rs.20,000/-. Since the deceased was a bachelor and the dependants are his parents, keeping in mind the directions issued by the Hon’ble Supreme Court in the case mentioned above, half of the income is deducted towards his personal expenses. Therefore, the monthly income after the above deduction comes to Rs.10,000/-. With that in mind, the modified calculation would be Rs.10,000/- x 12 x 17= Rs.20,40,000/-

8. Insofar as the transportation is concerned, taking into consideration of the fact that the deceased had incurred multiple grievous injuries and necessary steps were taken to transport him to the hospital for his treatment, the amount towards transportation is increased from Rs.5000/- to Rs.10,000/-.

9. Insofar as the damages to clothing and belongings are concerned, taking into consideration severity of the accident, the compensation towards the said head is increased from Rs.1000/- to Rs.5000/-.

10. It was reported that the deceased had died immediately after the accident, which reveals that there was no pain and sufferings to the victim and as per the decision of the Hon’ble Apex Court in the case of Sarala Verma and Others Vs. Delhi Transport Corporation and Another reported in 2009 (6) SCC 121, no amount is awarded to legal representatives under the heading ‘pain and sufferings’ in a fatal accident case because the victim has to be compensated for his own sufferings and in this case, the claimants’ son is the victim and therefore, no amount shall be paid to the legal heirs under this head.

11. Insofar as the loss of consortium and compensation for love and affection headings are concerned, it is relevant to note that the Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd. v. Nanu Ram, reported in 2018 (18) SCC 113 has held that in legal parlance, “consortium” is a compendious term which encompasses “spousal consortium”, “parental consortium” and “filial consortium”. In the said judgment, the Hon’ble Supreme Court has also observed that “ Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit”.

12. At this juncture, it is also pertinent to look into the observations of the Hon’ble Supreme Court in United India Insurance Co. Ltd. v. Satinder Kaur, reported in 2021 (11) SCC 780 more specifically in Paragraphs 34 and 35 which are extracted hereunder:

                   “34. At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and the High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi, has recognised only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses. In Magma General, this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium.

                   35. The Tribunals and the High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head.”

13. In the light of the above, we hold that there is no necessity to have two heads, i.e., loss of consortium and loss of compensation for love and affection. Therefore, the said two heads can be taken as a single category and the claimants are entitled for a sum of Rs.88,000/- towards the head “compensation for love and affection”. The rest of the categories require no further modification.

14. In light of the above modification of the award of the Tribual, the break-up details of the amount of compensation awarded by this Court is as follows:

                   S.I.No. Heads Amount

                   1 Loss of Earning Rs.20,40,000/-

                   2 Transport to Hospital Rs. 10,000/-

                   3 Funeral Expenses Rs. 16,500/-

                   4 Loss of Estate Rs. 16,500/-

                   5 Compensation for Love and Affection Rs. 88,000/-

                   6 Damages to Clothing and articles and vehicle Rs. 5,000/-

                   Total Rs.21,76,000/-

15. In the result, the Civil Miscellaneous Appeal is allowed in part to the extent as mentioned above. The impugned award is reduced from Rs.24,58.168/- to Rs.21,76,000/-. The Appellant Insurance Company and the third respondent are jointly and severally liable to pay the award of Rs.21,76,000/- towards compensation with costs and accrued interest thereon with 7.5% p.a. interest from the date of filing the claim petition i.e., 01.11.2018 to till the date of deposit of the compensation amount, within a period of eight weeks from the date of receipt of a copy of this order, less the amount already deposited if any. On such deposit being made, the claimants being the parents of the deceased are each entitled to a sum of Rs.10,88,000/- [Rs.10,88,000/- x 2 = Rs.21,76,000/-] with proportionate interest. There shall be no order as to costs.