Smt. Anita And Ors. vs Iffco Tokio General Insurance Co. ...
2021 Latest Caselaw 11460 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 17
 

 
Case :- FIRST APPEAL FROM ORDER No. - 182 of 2019
 

 
Appellant :- Smt. Anita And Ors.
 
Respondent :- Iffco Tokio General Insurance Co. Ltd.Throu.Manager & Anr.
 
Counsel for Appellant :- Mukesh Singh
 
Counsel for Respondent :- Govind Chaturvedi,Vaibhav Raj
 

 
Hon'ble Saurabh Lavania,J.

Heard Sri Mukesh Singh, learned counsel for the appellants and Sri Govind Chaturvedi, learned counsel appearing for the Iffco Tokio General Insurance Co. Ltd.

The present appeal has been filed for enhancement of amount of compensation awarded/granted by Motor Accident Claim Tribunal/Additional District Judge/F.T.C. First, District- Balrampur vide judgment and award dated 18.12.2018 passed in Claim Petition No. 6 of 2014 (Smt. Anita and others v. Mahendra and another).

The issues framed by the Tribunal for the purposes of adjudication of claim on reproduction reads as under:-

"vo/kk;Z fcUnq

5- mHk;i{k ds vfHkoPkuksa ds vk/kkj ij izLrqr ;kfpdk ds fuLrkj.k gsrq fnukad 07-05-2016 dks fuEufyf[kr vo/kk;Z fcUnq fojfpr fd;s x;s%&

1- D;k fnukad 24-12-2012 dks le; djhc 04%20 cts 'kke jsgjk ckckxat jksM ij Hkqrgk rky ds ikl ogn xzke dsjkMhg Fkkuk{ks= jsgjk cktkj tuin cyjkeiqj esa eksVjlkbfdy iath;u la0 ;w0ih0 43,u0 4694 dk pkyd okgu dks rsth o ykijokgh&iwoZd pykrs gq, vk;k vkSj ihNs ls vfuy dqekj dh eksVjlkbfdy iath;u la[;k ,e0,p0 14 Mh0 ,l0 5308 esa VDdj ekj nh] ftlls vfuy dqekj dks XkEHkhj ,oa izk.k?kkrd pksVsa vk;h rFkk nq?kZVuk esa vk;h pksVksa ds dkj.k nkSjku bykt fnukad 25-12-2012 dks esfMdy dkyst y[kuÅ esa mldh e`R;q gks x;h\ ;fn gka rks izHkko

2- D;k mDr nq?kZVuk ds le; nq?kZVuk dkjd okgu eksVjlkbZfdy iath;u la0 ;w0ih0 43,u0 4694 foi{kh la0 2 bQdks Vksfd;ks tujy bU';ksjsUl da0 fy0 ds }kjk fof/kor chfer Fkh vkSj okgu dk ifjpkyu chek dh 'krksZa ds vuq:i fd;k tk jgk Fkk\ ;fn gka rks izHkko\

3- D;k mDr nq?kZVuk ds le; nq?kZVukdkjd okgu eksVjlkbZfdy iath;u la0 ;w0ih0 43,u0 4694 ds pkyd ds ikl okgu pykus dh oS/k ,oa izHkkoh pkyu vuqKfIr Fkh] ;fn gka rks izHkko\

4- D;k ;kphx.k fdlh izdkj dk izfrdj izkIr djus ds vf/kdkjh gSa\ ;fn gka] rks fdruh /kujkf'k vkSj fdl foi{kh ls\"

The findings of fact recorded by the Motor Accident Claim Tribunal (in short "Tribunal") regarding age of deceased i.e. 23 years at the time of accident, date of accident i.e. 24.12.2012, place of accident i.e. Village- Karodi, P.S.- Rehra Bazar, District- Balrampur, date of death i.e. 25.12.2012, negligence of driver of Motorcycle bearing Registration No. U.P 43N9694, validity of insurance policy and validity of driving licence, are not in dispute, meaning thereby that there is no dispute regarding findings recorded by the Tribunal on the issue Nos. 1, 2 & 3. There is also no dispute on the issue of multiplier of 18, which was applied by the Tribunal for computing the compensation. As per the pleadings on record, the deceased-Anil Kumar expired leaving behind his wife-Anita, son-Harshverdhan, daughter-Km. Pratima, mother-Smt. Geeta Devi, father-Chandrika Prasad and brother-Mukesh Kumar and after considering the number of dependants, the Tribunal applied multiplicand of 1/4. This multiplicand is also not in dispute. However, while awarding the total amount of compensation, the Tribunal rejected the claim of Mukesh Kumar, brother of the deceased.

As the present appeal relates to enhancement of amount of compensation, the issue No. 4 is under consideration.

After recording the findings on issue Nos. 1, 2 and 3, the Tribunal awarded compensation vide judgment and award, under appeal, dated 18.12.2018. The relevant portion of the same on reproduction reads as under:-

"31- &%vo/kk;Z fcUnq la0 4 dk fuLrkj.k%&

4& D;k ;kphx.k fdlh izdkj dk izfrdj izkIr djus ds vf/kdkjh gSa\ ;fn gka] rks fdruh /kujkf'k vkSj fdl foi{kh ls\

32- mijksDr leLr ifjppkZ ds vk/kkj ij ;g Li"V gks pqdk gS fd fnukad 24-12-2012 dks 'kke 04%20 ij jsgjk ckckxat jksM ij Hkqrgk rky ds ikl dsjkMhg xkao ds ikl eksVjlkbZfdy iath;u la0 ;w0ih0 43,u0 4694 pkyd okgu dks rhozxfr o ykijokgh ls pykdj vfuy dqekj dh eksVjlkbZfdy esa VDdj ekj fn;k] ftllds vfuy dqekj dks xEHkhj o izk.k&?kkrd pksVsa vk;h]a ftlds QyLo:i vfuy dqekj dh e`R;q gks x;hA rnuqlkj ;kphx.k izfrdj ikus ds vf/kdkjh gSaA ;kphx.k ds i{k esa fudys x;s fu"d"kZ ,oa miyC/k lk{; ds vk/kkj ij ;kphx.k izfrdj e; C;kt izkIr djus ds vf/kdkjh gSaA

33- dfFkr nq?kZVuk ds le; eksVjlkbZfdy iath;u la- ;w0ih0 43,u0 4694 bQdks Vksfd;k tujy bU';ksjsUl d0fy0 ls chfer Fkh vkSj okgu dk ifjpkyu foi{kh la0 1 egsUnz dqekj }kjk chek dh 'krksZ ds vuqikyu esa fd;k tk jgk Fkk blfy, leLr izfrdj vnk djus dh ftEesnkjh foi{kh la0 2 bQdks Vksfd;k tujy bU';ksjsUl d0fy0 dh gksxhA

34- izfrdj dh /kujkf'k fdruh gksxh bl fcUnq dk fuLrkj.k djus ls iwoZ U;k;kf/kdj.k }kjk nq?kZVuk ds le; e`rd vfuy dh vk;q] ekfld vkSj okf"kZd vk; dk vadyu fd;k tkuk U;k;ksfpr gksxkA

35- &%e`rd dh vk;q dk fu/kkZj.k%&

;kphx.k us ;kfpdk esa e`rd dh vk;q 27 o"kZ gksuk vafdr dh gS] ijUrq e`rd dh vk;q ds lEcU/k esa 'kSf{kd izi= i=koyh esa nkf[ky ugha fd;k gSA ;kph }kjk nkf[ky iksLV ekVZe fjiksVZ esa e`rd vfuy dqekj dh vk;q 29 o"kZ vafdr gS vkSj e`rd vfuy pfUnzdk oekZ iq= pfUnzdk fgrbZ oekZ dk vk;dj foHkkx }kjk tkjh isudkMZ ua0 AKHPV1686L esa e`rd vfuy oekZ dh tUefrfFk 12-09-1989 vafdr gSA ;gh tUefrfFk egkjk"Vª jkT; eksVj Mªkbfoax ykbZlsal }kjk vfuy oekZ ds i{k esa tkjh pkyu vuqKfIr&i= esa vafdr gSA ,slh fLFkfr esa ;kfpdk ,oa iksLVekVZe vk[;k esa e`rd dh vk;q dze'k 27 ,o 29 o"kZ xyr lkfcr gksrh gS] D;ksafd ?kVuk fnukad 24-12-2012 dks isudkMZ o Mh0,y0 esa vafdr tUefrfFk ds vk/kkj ij e`rd dh vk;q nq?kZVuk ds le; yxHkx 23 o"kZ 03 ekg 13 fnu gksuk lkfcr gksrh gSA ;kfpdk esa nkf[ky izi=ksa ds vk/kkj ij U;k;kf/kdj.k dh jk; esa e`rd vfuy dqekj dh vk;q nq?kZVuk ds le; 23 o"kZ vo/kkfjr fd;k tkuk U;k;ksfpr izrhr gksrk gSA

36- &%ekfld vk;%&

;kfpdk esa ;kphx.k us e`rd dks [email protected]& :i;s izfr ekg dh vkSlr vk; ih0vks0ih0 ds dkjksckj ls dekuk dgk gS vkSj mldh ekfld vk; eq0 [email protected]& :i;s izfr ekg ;kfpdk esa vafdr dh gSA ;kfpdk esa e`rd dks ih0vks0ih0 dk csgrjhu dkjhxj o Bsdk ysdj yscj ls dk;Z djokuk dgk gSA e`rd Bsdsnkj Fkk vkSj og Bsdk ysdj yscj ls dk;Z djokrk Fkk bl lEcU/k esa e`rd dk Bsdsnkjh dk iathd`r ykbZlsal i=koyh ij nkf[ky ugha fd;k x;k gSA e`rd }kjk [email protected] dke dk Bsdk ysus ds lEcU/k esa vuqcU/k&i= i=koyh esa nkf[ky ugha fd;k x;k gS] ftlls ;g Li"V gks lds fd e`rd Bsdk ysdj fu/kkZfjr /kujkf'k izkIr djds Lo;a vFkok yscj ds ek/;e ls fofHkUu LFkkuksa ij ih0vks0ih0 dk dk;Z Bsds ij djokrk FkkA ;kph us ejkBh Hkk"kk esa vius ,oa Jh }kfjdk izlkn ekyk jke oekZ ds e/; uksVjh }kjk izekf.kr bdjkjukek nkf[ky fd;k gS] ftlls e`rd dh vk; fu/kkZfjr fd;s tkus esa dksbZ lgk;rk ugha feyrh gSA ;kphx.k us LVsV cSad vkQ bf.M;k esa fofHkUu frfFk;ksa ij vfuy oekZ ds [kkrk la0 20112343726 ,oa itkac us'kuy cSad ds [kkrk la- 4518000100023321 eq0 99][email protected]&] 99][email protected]&] 29][email protected]&] 1]98][email protected]& tek djus dh jlhnksa dh Nk;k izfr;ka nkf[ky dh gS] ijUrq mu [kkrk la[;kvksa dh iklcqd nkf[ky ugha dh gS vkSj muesa tek rFkk fudkyh x;h /kujkf'k dk dksbZ fooj.k ;kfpdk esa nkf[ky ugha fd;k gSA dsoy o"kZ 2012&13 dk Vh0Mh0,l0 fooj.k i= nkf[ky fd;k gSA foRrh; o"kZ 2012&13 dk vkbZ0Vh0vkj0 nkf[ky fd;k gS] ftlesa dqy vk; 1]78][email protected]& :i;s iznf'kZr fd;k gS] ijUrq mDr vkbZ0Vh0vkj0 ds leFkZu esas iwjs o"kZ dk vk;&O;; fooj.k] leLr cpr] [email protected],Q0Mh0vkj0 vkfn dh iklcqd i=koyh esa nkf[ky ugha dh gSA o"kZ 2012&13 ds vfrfjDr vU; fdlh o"KZ dk bUde VSDl fjVuZ i=koyh esa nkf[ky ugha fd;k gSA ,slh fLFkfr esa ;kph dh okf"kZd vk; dsoy ,d o"kZ ds vk;dj fooj.k ds vk/kkj ij fu/kkZfjr ugha dh tk ldrh gSA ;kphx.k }kjk e`rd vfuy dqekj dh ekfld vk; eq0 25][email protected]& :i;s fu/kkZj.k djus ds fy, vU; dksbZ lk{; ugha nh x;h gS vkSj u gh dksbZ lk{kh vk; fu/kkZj.k ds lEcU/k esa ijhf{kr djk;k x;k gSA ,slh fLFkfr esa e`rd dh ekfld vk; ekuuh; mPpre U;k;ky; }kjk fu.khZr y{eh nsoh o vU; cuke eksgEen rOoj o vU; 2008 ¼2½ Vh-,-lh- 394 ¼,l-lh-½ esa ;g vo/kkfjr fd;k x;k gS fd orZeku le; esa ,d LoLFk vf'kf{kr ,oa vizf'kf{kr etnwj Hkh U;wure [email protected]& jkstkuk vFkok [email protected]& :0 ekgokj vFkok [email protected]& :0 okf"kZd dek ysrk gSA vr% ,slh ifjfLFkfr;ksa esa mDr nq?kZVuk ds le; e`rd vfuy dqekj dh ekfld vk; ekkuh; mPpre U;k;ky; dh mijksDr fof/k O;oLFkk es izfrikfnr fl}kUrksa ds vuqlkj [email protected]& :- izfrekg vFkok 36][email protected]& :0 izfro"kZ vo/kkfjr dj fn;k tk;s rks blls U;k; dh ea'kk iwjh gks tk;sxhA rnuqlkj nq?kZVuk ds le; e`rd dh ekfld vk; [email protected]& :0 vo/kkfjr dh tkrh gSA

&Hkkoh izR;k'kkvksa esa o`f}&

37- fo}ku vf/koDrk ;kphx.k }kjk viuh cgl ds nkSjku esjs le{k ;g rdZ izLrqr fd;k x;k fd ;fn e`rd thfor jgrk rks og viuh vk; esa c<+ksRrjh djrkA ,slh fLFkfr esa mldh ekfld vk; esa 50% dh c<[email protected] izR;k'kk dks tksM+rs gq, ;kphx.k dks gqbZ vkfJrk dk uqdlku fu/kkZfjr djus ds fy, tksM+k tkuk pkfg,A

38- bl lEcU/k esa eSaus ekuuh; mPpre U;k;ky; dh uthj Jherh ljyk oekZ o vU; cuke fnYYkh ifjogu fuxe ,oa ,d vU; 2009 ¼2½ n0 eq0 n 161 ¼lq0 dks0½ dk lE;d~ voyksdu fd;kA ekuuh; mPpre U;k;ky; }kjk mDr uthj ds iSjk 10] 11 esa eqvkots dh ifjx.kuk dks vkjEHk djus ds fy;s vk;dj dks de dj e`rd dh okLrfod vk; fu/kkkZfjr fd;s tkus gsrq Hkkoh izR;k'kkvksa dk mYys[k dj dksbZ /kujkf'k tksM+h tkuh pkfg, vFkok ugha] bl iz'u ij ekuuh; U;k;ky; us fopkj fd;k gS rFkk ;g vo/kkfjr fd;k gS fd e`rd dh okLrfod vk; dks fu/kkZfjr fd;s tkus gsrq Hkkoh izR;k'kkvkss dks thouo`Rr c 39- vr% ekuuh; mPPkre U;k;ky; }kjk izfrikfnr fl}kUr o m0 iz0 eksVj ;ku ¼X;kjgok la'kks/ku½ fu;ekoyh] 2011 fu;e 220&d ds mi fu;e&3 esa fn;s x;s izkfo/kku ds ifjizs{; esssa mDr ekeys esa eqvkots dh ifjx.kuk djus ds fy, e`rd dh Hkkoh izR;k'kkvksa ds :i esa mldh izfr ekfld vk; esa 40 izfr'kr dh o`f} fd;k tkuk U;k;ksfpr izrhr gksrk gSA mijksDr of.kZr fof/k O;oLFkkvksa esa izfrikfnr fl}kUr ds vuqlkj 23 o"kZ vk;q dh fLFkfr esa e`rd dh okLrfod vk; esa 40 izfr'kr dh o`f} Hkkoh lEHkkouk ds :i esa dh tk;sxhA e`rd vfuy dqekj dh 3][email protected]& :0 ekfld vk; dk 40 izfr'kr Hkkoh izR;k'kk [email protected]& :0 gksrk gSA bl izdkj Hkkoh lEHkkoukvksa dh o`f} djrs gq, ekfld vk; ¼3]000 +1200½ = 4][email protected]& :0 izfrekg fu/kkZfjr dh tkrh gSA

40- m0iz0 eksVj ;ku ¼X;kjoka la'kks/ku½ fu;ekoyh&2011 ds fu;e 220&d ,oa fof/k O;oLFkk f=yksd pUnz ¼UPSRTC Vs. TRILOK CHANDRA, 1996 Vol 4 SCC 362½& esa dgk x;k gS fd ;fn e`rd fookfgr gks rks mldh O;fDrxr vkSj thou ds [kpsZ [email protected] gksxas tgka ikfjokfjd lnL;ksa dh la[;k 4 ls 6 gSaA izLrqr izdj.k esa e`rd dh okf"kZd vk; esa ls e`rd ds Lo;a ds [kpsZ ds fy, ,d pkSFkkbZ /kujkf'k dh dVkSrh ekuuk mfpr gksxkA blfy, ;fn e`rd thfor jgrk rks og vius Åij ekfld vk; 4][email protected]& dk [email protected] Hkkx ;kfu [email protected]& :i;s Lo;a ij [kpZ djrk rFkk 'ks"k 3][email protected]& :i;s ekfld vk; vFkkZr~ 3,150 x 12 = 37,800/- :i;s okf"kZd vk; ij ;kphx.k vkfJr gksrsA

&xq.kkad ,oa izfrdj fu/kkZj.k&

41- vc gesa ;g ns[kuk gS fd bl ekeys esa dkSu&lk xq.kkad ykxw gksxkA i=koyh ij miyC/k vfHkys[kksa ds vuqlkj e`rd dh vk;q nq?kZVuk ds le; 23 o"kZ vk;h gSA ljyk oekZ o vU; cuke fnYyh VªkaliksVZ dkWiksZjs'ku o vU; ,0vkbZ0vkj0 2009 lqizhe dksVZ ist&3104 esa ekuuh; mPpre U;k;ky; us iSjk&21 esa ;g vfHkfu/kkZfjr fd;k gS fd%&

"42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Trilok Chandra [(1996) 4 SCC 362] and Charlie [(2005) 10 SCC 720 : 2005 SCC (Cri) 1657] ), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

42- vr% ekuuh; mPpre U;k;ky; }kjk vfHkfu/kkZfjr fl)kUrksa ds vk/kkj ij 23 o"kZ dh vk;q ds fy, 18 dk xq.kkad yxk;k tkuk mfpr gksxkA bl /kujkf'k 37][email protected]& :0 esa 18 ds xq.kkad dk xq.kk djus ij ;g /kujkf'k 6]80][email protected]&:0 ¼N% yk[k vLlh gtkj pkj lkS½ :i;s gksrh gSA bl izdkj e`rd vfuy dqekj dh e`R;q ds dkj.k ;kphx.k dks dqy vkfFkZd {kfr eq0 6]80][email protected]&:i;s dh gqbZA mRrj izns'k eksVj ;ku ¼X;kjgoka la'kks/ku½ fu;ekoyh&2011 ds fu;e 220 d ¼4½ ¼rhu½ ds vuqlkj ;kphx.k }kjk e`rd vfuy dqekj dks bykt gsrq jsgjk cktkj ls xks.Mk] xks.Mk ls y[kuÅ esfMdy dkyst y[kuÅ vkokxeu esa gqvk O;; eq0 5][email protected]&:i;k] fdz;kdeZ esa gqvk O;; eq0 5][email protected]& :i;k] ekufld d"[email protected]+k ,oa ifr lq[k ls oafpr gksus gsrq eq0 10][email protected]& :i;s fnykrs gq, ;kphx.k dqy /kujkf'k eq0 6,80,400 + 5,000 + 5,000 + 10,000= 7,00,400 @& ¼lkr yk[k pkj lkS½ :i;s izfrdj izkIRk djus ds vf/kdkjh gSaA e`rd ds nok bykt ds lEcU/k esa dksbZ nok [email protected] fcy nkf[ky ugha fd;k x;k gS blfy, bykt ds lEcU/k esa dksbZ izfrdj ugha fn;k tk jgk gSA

43- izLrqr ;kfpdk fnukad 28-01-2014 dks nkf[ky dh x;h vkSj i=koyh esa ;kph us viuh lk{; fnukad 03-03-2017 dks vR;ar foyEc ls izzLrqr dh gSA ,slh fLFkfr esa ;kphx.k bl izfrdj dh /kujkf'k ij ;kfpdk esa lk{; izLrqr djus dh frfFk 03-03-2017 ls N% izfr'kr okf"kZd lk/kkj.k c;kt Hkh rk vnk;xh izkIr djus ds vf/kdkjh gSaA

44- iwoZ foospu ls ;g Li"V gks pqdk gS fd nq?kZVuk dh frfFk o le; ij nq?kZVuk dkjd eksVjlkbZfdy iath;u la0 ;w0ih0 43 ,u0 4694 foi{kh la0 2 bQdks Vksfd;ks tujy bU';ksjsUl dEiuh fyfeVsM ds ;gka chfer FkhA vr% ;kphx.k dks izkIr gksus okyh leLr izfrdj dh /kujkf'k e; C;kt vnk djus dh ftEesnkjh foIk{kh la0 2 bQdks Vksfd;ks tujy bU';ksjsUl dEiuh fyfeVsM dh gksxhA

45- ;kph la0 6 eqds'k dqekj ukckfyx Jh pfUnzdk izlkn oekZ dk iq= gSA og e`rd ij fdl izdkj vkfJr gS ;g ;kphx.k us viuh lk{; ls lkfcr ugha fd;k gS] tcfd mlds izkd`frd ekrk&firk thfor gSaA eqds'k dqekj ds [kkuiku o jgu&lgu dh leLr ftEesnkjh mlds firk dh gS] u fd mlds cM+s HkkbZ e`rd vfuy dqekj dhA lk{; ds vHkko esa ;kph la0 6 eqds'k dqekj izLrqr ;kfpdk ds ek/;e ls dksbZ izfrdj izkIr djus dk vf/kdkjh ugh gSA

46- bl izdkj ;kphx.k Jherh vuhrk] g"kZo/kZu oekZ] dq0 izfrek] Jherh xhrk nsoh] pfUnzdk izlkn oekZ dh izfrdj ;kfpdk eq0 7]00][email protected]& ¼lkr yk[k pkj lkS½ :i;s izfrdj ,oa mlesa lk{; izLrqr djus ds fnukad 03-03-2017 ls N% izfr'kr okf"kZd lk/kkj.k C;kt dh vnk;xh gsrq foi{kh la0 2 ds fo:) Lohdkj fd;s tkus ;ksX; gSA

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47- ;kphx.k }kjk izLrqr izfrdj ;kfpdk vkaf'kd :i ls Lohdkj dh tkrh gS rFkk ;kphx.k ds i{k esa ,oa foi{kh la0 2 bQdks Vksfd;ks tujy bU';ksjsUl dEiuh fyfeVsM ds fo:}] vadu eq0 7]00][email protected]&¼lkr yk[k pkj lkS½ :i;s dk [email protected]/kfu.kZ; ikfjr djrs gq, foi{kh la0 2 bQdks Vksfd;ks tujy bU';ksjsUl dEiuh fyfeVsM dks vknsf'kr fd;k tkrk gS fd og mDr /kujkf'k dks bl vkns'k dh frfFk ls ,d ekg ds vUnj ;kphx.k dks vnk djs vU;Fkk ;kphx.k dks vf/kdkj gksxk fd og izfrdj dh mDr /kujkf'k foi{kh la0 2 ls fof/k vulqkj U;k;ky; ds ek/;e ls olwy dj ysaA ;kphx.k ;kfpdk esa lk{; izLrqr djus dh fnukad 03-03-2017 ls okLrfod Hkqxrku gksus dh frfFk rd lEiw.kZ izfrdj dh /kujkf'k ij N% izfr'kr okf"kZd lk/kkj.k C;kt izkIr djus ds vf/kdkjh gksaxsA

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While pressing the present appeal for enhancement of amount of compensation, learned counsel for the appellants submitted that before the Tribunal, it was specifically pleaded that the deceased was earning Rs. 25,000/- per month by performing POP work and on this aspect, evidence was also placed before the Tribunal i.e. a document showing income tax return of the financial year 2012-13, however, the Tribunal ignored the documentary evidence placed before it so as the oral evidence and considered it appropriate to grant amount of compensation taking note of notional income of Rs. 3,000/- per month, as such, the amount of compensation is liable to be enhanced.

Opposing the prayer of the learned counsel for the appellants, Sri Govind Chaturvedi, learned counsel appearing for the Iffco Tokio General Insurance Co. Ltd. (in short "Company") submitted that the finding of the Tribunal on the aforesaid issue is not liable to be interfered with by this Court as the appellants, claimants before the Tribunal, filed their income tax returns only of one year i.e. financial year 2012-13. There are several Authorities in this regard, as such, the finding on this issue is just and proper.

In response to above, learned counsel for the appellants submitted that justice would suffice, if this Court after taking note of pronouncements on the issue of notional income, enhances the compensation awarded by the Tribunal.

Elaborating his arguments, learned counsel for the appellants submitted that in the case of Magma General Insurance Company Ltd. vs. Nanu Ram and Others; reported in 2018 SCC Online SC 1546, wherein, the accident took place in the year 2013, the Hon'ble Apex Court affirmed the notional income at Rs. 6,000/- per month and enhanced the compensation in relation to other heads.

He further submitted that in the case of Chameli Devi and Others vs. Jivrail Mian and Others; reported in 2019 (4) TAC 724 (S.C.), wherein, the accident took place on 02.01.2001, the Hon'ble Apex Court considered the notional income at Rs. 200/- per day, meaning thereby that the Hon'ble Apex Court while considering the case of Chameli Devi (supra) considered it appropriate to grant compensation after taking note of notional income at Rs. 200/- per day i.e. Rs. 6,000/- per month. The relevant paras on reproduction read as under:-

"Keeping in view the fact that the accident took place in 2001 and the deceased was a carpenter, it would not be unjustified to assess his income at Rs.200/- per day. It is true that carpenter may not get per work every day, hence, we access the income at Rs.5000/- per month. Adding 40% for future prospects Rs.2,000/-, the total income works out to Rs.7,000/-. Deducting 1/5 for personal expenses, keeping in view a large number of dependents, the datum figure comes out to Rs.5,600/- per month or Rs.67,200/- per year. Applying multiplier of 16, the compensation works out to Rs.10,75,200/-. Rs.70,000/- is added towards other non-conventional heads as laid down in National Insurance Co. Ltd. v. Pranay Sethi & Ors. (2017) 16 SCC 680 : 2017 (4) T.A.C. 673. The total compensation comes out to Rs.11,45,200/-."

On the issue of notional income, further reliance has also been placed on the judgment dated 10.12.2014 passed in F.A.F.O. (D) No. 748 of 2011 (Smt. Sheela Pandey W/O Late Surendra Kumar Pandey & 4 Others. vs. The New India Insurance Co. Ltd. Bena Ghabar Branch & 2 Others). In this case, this Court, for granting compensation, assessed the notional income of the deceased, who was doing business of selling milk/ diary business, at Rs. 6,500/- per month.

He further submitted that in the judgment passed in the case of Syed Sadiq And Others vs. Divisional Manager, United India Insurance Company Limited; reported in (2014) 2 SCC 735, the deceased was Vegetable Vendor and the Hon'ble Apex Court, for the purposes of granting of compensation, after considering the state of economy and

rising prices in agricultural products observed that a vegetable vendor is reasonably capable of earning Rs. 6,500/- per month. Para 9 of the same is as under:-

"9. There is no reason in the instant case for the Tribunal and the High Court to ask for evidence of monthly income of the appellant claimant. On the other hand, going by the present state of economy and the rising prices in agricultural products, we are inclined to believe that a vegetable vendor is reasonably capable of earning Rs 6500 per month.".

On the issue of notional income at Rs. 6,000/-, learned counsel for the appellants further submitted that in the case of New India Assurance Co. Ltd. Vs. Resha Devi and Others; reported in 2017 (4) T.A.C. 288 (All.), this Court, in para 8, observed that "there can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations. Obviously award of damages would depend upon the particular facts and circumstances of the case but the element of fairness in the amount of compensation so determined is the ultimate guiding factor. In such view of the matter, presumption of Rs. 100/- per day as notional income even for a unskilled labour in the year 2014 appears to us to be frugal and by no stretch of imagination to be just even the minimum wages fixed by the State Government is much higher than that looking to the rise in cost index. We are of the considered upon that notional income of an unskilled labour could not be less than Rs. 200/- per day."

In continuation, learned counsel for the appellants submitted that in the instant case, the deceased was earning Rs. 25,000/- by carrying out POP work at Mumbai, as such, considering the inflation & devaluation of rupee and increase in cost of living, particularly at Mumbai, the compensation be enhanced considering the notional income of deceased at Rs. 6,000/- per month.

Learned counsel for the Company vehemently opposed the issue of notional income raised by the learned counsel for the appellants, however, he could not place any judgment, wherein, anything otherwise has been held.

Considering the date of accident i.e. 24.12.2012 and the fact that the deceased was earning Rs. 25,000/- per month by performing POP work was not proved by placing required documentary evidence as also the law settled on the issue of notional income, this Court is of the view that the notional income of the deceased, in the instant case, for the purposes of computing the compensation is liable to be considered at Rs. 6,000/- per month.

Learned counsel for the appellants also stated that the claimants are also entitled to amount(s) under other heads including the conventional heads i.e. funeral expenses, loss of estate and loss of consortium, as held by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Others; reported in (2017) 16 SCC 680: 2017 ACJ 2700 and New India Assurance Company Limited vs. Smt. Somwati and Others; (2020) 9 SCC 644.

Relevant paragraph 59 of the judgment passed in the case of Pranay Sethi (supra) reads as under:-

59. In view of the aforesaid analysis, we proceed to record our conclusions:

59.1. The two-Judge Bench in Santosh Devi [Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma[Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.

59.2. As Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] has not taken note of the decision in Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] , which was delivered at earlier point of time, the decision in Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] is not a binding precedent.

59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

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.

59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] which we have reproduced hereinbefore.

59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] read with para 42 of that judgment.

59.7. The age of the deceased should be the basis for applying the multiplier.

59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

At this stage, considering para 59 of the judgment passed in the case of Pranay Sethi (supra), this Court feel that it would be appropriate to refer the relevant paras of the judgment passed by the Hon'ble Apex Court in the case of Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002 : 2009 SCC OnLine SC 797, which are as under:-

"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra [(1996) 4 SCC 362] , the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.

31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.

32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.

33............

34............

35............

36............

37............

38............

39............

40............

41............

42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Trilok Chandra [(1996) 4 SCC 362] and Charlie [(2005) 10 SCC 720 : 2005 SCC (Cri) 1657] ), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

In the case of Smt. Somwati (supra), relied upon by the learned counsel for the appellants, the Hon'ble Apex Court observed as under:-

"30. The next judgment which needs to be noted is Magma General Insurance Co. Ltd. v. Nanu Ram [Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 : (2019) 3 SCC (Civ) 146 : (2019) 3 SCC (Cri) 153] , the concept of consortium was explained in paras 21, 22 and 23, which are as follows : (SCC pp. 136-37)

"21. A Constitution Bench of this Court in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149]

21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of ''company, society, cooperation, affection, and aid of the other in every conjugal relation.' [Black's Law Dictionary (5th Edn., 1979).]

21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of ''parental aid, protection, affection, society, discipline, guidance and training.'

21.3. 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.

22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world over have recognised that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions, therefore, permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.

23. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count [ Rajasthan High Court in Jagmala Ram v. Sohi Ram, 2017 SCC OnLine Raj 3848 : (2017) 4 RLW 3368; Uttarakhand High Court in Rita Rana v. Pradeep Kumar, 2013 SCC OnLine Utt 2435 : (2014) 3 UC 1687; Lakshman v. Susheela Chand Choudhary, 1996 SCC OnLine Kar 74 : (1996) 3 Kant LJ 570] . However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium."

31. A two-Judge Bench in Magma General Insurance Co. Ltd. [Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 : (2019) 3 SCC (Civ) 146 : (2019) 3 SCC (Cri) 153] awarded the amount of Rs 40,000 to father and sister of the deceased. Para 24 is as follows : (SCC p. 137)

"24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under "loss of consortium" as laid down in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] . In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs 40,000 each for loss of filial consortium."

32. A three-Judge Bench in United India Insurance Co. Ltd. v. Satinder Kaur [United India Insurance Co. Ltd. v. Satinder Kaur, (2021) 11 SCC 780 : 2020 SCC OnLine SC 410] , had reaffirmed the view of the two-Judge Bench in Magma General Insurance Co. Ltd. [Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 : (2019) 3 SCC (Civ) 146 : (2019) 3 SCC (Cri) 153] The three-Judge Bench from paras 53 to 65, dealt with three conventional heads. The entire discussion on three conventional heads of the three-Judge Bench is as follows:

"53.InPranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] , the Constitution Bench held that in death cases, compensation would be awarded only under three conventional heads viz. "loss of estate", "loss of consortium" and "funeral expenses".

54. The Court held that the conventional and traditional heads, cannot be determined on percentage basis, because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified, which has to be based on a reasonable foundation. It was observed that factors such as price index, fall in bank interest, escalation of rates, are aspects which have to be taken into consideration. The Court held that reasonable figures on conventional heads, namely, "loss of estate", "loss of consortium" and "funeral expenses" should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The Court was of the view that the amounts to be awarded under these conventional heads should be enhanced by 10% every three years, which will bring consistency in respect of these heads.

(a) Loss of estate -- Rs 15,000 to be awarded

(b) "Loss of consortium"

55. Loss of consortium, in legal parlance, was historically given a narrow meaning to be awarded only to the spouse i.e. the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads for awarding compensation in various jurisdictions such as the United States of America, Australia, etc. English courts have recognised the right of a spouse to get compensation even during the period of temporary disablement.

56.InMagma General Insurance Co. Ltd. v. Nanu Ram [Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 : (2019) 3 SCC (Civ) 146 : (2019) 3 SCC (Cri) 153] , this Court interpreted "consortium" to be a compendious term, which encompasses spousal consortium, parental consortium, as well as filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.

57. Parental consortium is granted to the child upon the premature death of a parent, for loss of parental aid, protection, affection, society, discipline, guidance and training.

58. 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 and affection, and their role in the family unit.

59. Modern jurisdictions world over have recognised that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is the compensation for loss of love and affection, care and companionship of the deceased child.

60. The Motor Vehicles Act, 1988 is a beneficial legislation which has been framed with the object of providing relief to the victims, or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium.

61. Parental consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents.

62. The amount to be awarded for loss of consortium will be as per the amount fixed in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] .

63. 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 High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench inPranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] , has recognised only three conventional heads under which compensation can be awarded viz. "loss of estate", "loss of consortium" and "funeral expenses".

64.InMagma General [Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 : (2019) 3 SCC (Civ) 146 : (2019) 3 SCC (Cri) 153] , 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.

65. The Tribunals and 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.

(c) Funeral expenses -- Rs 15,000 to be awarded."

(emphasis supplied)

33. The three-Judge Bench in the above case approved the comprehensive interpretation given to the expression "consortium" to include spousal consortium, parental consortium as well as filial consortium. The three-Judge Bench, however, further laid down that "loss of love and affection" is comprehended in "loss of consortium", hence, there is no justification to award compensation towards "loss of love and affection" as a separate head.

34. 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 also not, under conventional head, included any compensation towards "loss of love and affection" which have been now further reiterated by 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] . It is thus now authoritatively well settled that no compensation can be awarded under the head "loss of love and affection".

35. The word "consortium" has been defined in Black's Law Dictionary, 10th Edn. The Black's Law Dictionary also, simultaneously, notices the filial consortium, parental consortium and spousal consortium in the following manner:

"Consortium1. The benefits that one person, esp. A spouse, is entitled to receive from another, including companionship, cooperation, affection, aid, financial support, and (between spouses) sexual relations a claim for loss of consortium.

- Filial consortium A child's society, affection, and companionship given to a parent.

- Parental consortium A parent's society, affection and companionship given to a child.

- Spousal consortium A spouse's society, affection and companionship given to the other spouse."

36. In Magma General Insurance Co. Ltd. [Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 : (2019) 3 SCC (Civ) 146 : (2019) 3 SCC (Cri) 153] as well as United India Insurance Co. Ltd. [United India Insurance Co. Ltd. v. Satinder Kaur, (2021) 11 SCC 780 : 2020 SCC OnLine SC 410] , the three-Judge Bench laid down that the consortium is not limited to spousal consortium and it also includes parental consortium as well as filial consortium. In para 87 of United India Insurance Co. Ltd. [United India Insurance Co. Ltd. v. Satinder Kaur, (2021) 11 SCC 780 : 2020 SCC OnLine SC 410] , "consortium" to all the three claimants was thus awarded. Para 87 is quoted below:

"87. Insofar as the conventional heads are concerned, the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] and Magma General [Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 : (2019) 3 SCC (Civ) 146 : (2019) 3 SCC (Cri) 153] , the following amounts are awarded under the conventional heads:

(i) Loss of estate : Rs 15,000

(ii) Loss of consortium:

(a) Spousal consortium : Rs 40,000

(b) Parental consortium : 40,000 × 3 = Rs 1,20,000

(iii) Funeral expenses : Rs 15,000"

37. The learned counsel for the appellant has submitted 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.

39. We, thus, found the impugned judgments [Somwati v. Dharmendra Kumar, 2019 SCC OnLine All 3897] , [Sangita Devi v. New India Assurance Ltd., 2019 SCC OnLine Del 10877] , [New India Assurance Co. Ltd. v. Azmati Khatoon, 2019 SCC OnLine Del 10530] , [Cholamandalam MS General Insurance Co. Ltd. v. Umarani, 2019 SCC OnLine Mad 29630] , [Pinki v. Rajeev, 2019 SCC OnLine Del 11882] , [Nanak Chand v. New India Assurance Co. Ltd., 2020 SCC OnLine Del 62] , [Oriental Insurance Co. Ltd. v. Rinku Devi, 2019 SCC OnLine Del 10493] of the High Court awarding consortium to each of the claimants in accordance with law which does not warrant any interference in this appeal. We, however, accept the submissions of the learned counsel for the appellant that there is no justification for award of compensation under separate head "loss of love and affection". The appeal filed by the appellant deserves to be allowed insofar as the award of compensation under the head "loss of love and affection".

40. We may also notice the three-Judge Bench judgment of this Court relied upon by the learned counsel for the appellant i.e. Sangita Arya v. Oriental Insurance Co. Ltd. [Sangita Arya v. Oriental Insurance Co. Ltd., (2020) 5 SCC 327 : (2020) 3 SCC (Civ) 254 : (2020) 2 SCC (Cri) 905] The counsel for the appellant submits that this Court has granted only Rs 40,000 towards "loss of consortium" which is an indication that "consortium" cannot be granted to children. In the above case, Motor Accidents Claims Tribunal has awarded Rs 20,000 to the widow towards loss of consortium and Rs 10,000 to the minor daughter towards "loss of love and affection". The High Court has reduced [Oriental Insurance Company Ltd. v. Sangita Arya, 2016 SCC OnLine Utt 970] the amount of consortium from Rs 20,000 to Rs 10,000. Para 16 of the judgment is to the following effect : (Sangita Arya case [Sangita Arya v. Oriental Insurance Co. Ltd., (2020) 5 SCC 327 : (2020) 3 SCC (Civ) 254 : (2020) 2 SCC (Cri) 905] , SCC p. 330, para 10)

"10. The consortium payable to the widow was reduced [Oriental Insurance Company Ltd. v. Sangita Arya, 2016 SCC OnLine Utt 970] by the High Court from Rs 20,000 (as awarded by MACT) to Rs 10,000; the amount awarded towards loss of love and affection to the minor daughters was reduced from Rs 10,000 to Rs 5000. However, the amount of Rs 5000 awarded by MACT towards funeral expenses was maintained."

41. This Court in the above case confined its consideration towards the income of the deceased and there was neither any claim nor any consideration that the consortium should have been paid to other legal heirs also. There being no claim for payment of consortium to other legal heirs, this Court awarded Rs 40,000 towards consortium. No such ratio can be deciphered from the above judgment that this Court held that consortium is only payable as a spousal consortium and consortium is not payable to children and parents.

42. It is relevant to notice the judgment of this Court in United India Insurance Co. Ltd. [United India Insurance Co. Ltd. v. Satinder Kaur, (2021) 11 SCC 780 : 2020 SCC OnLine SC 410] which was delivered shortly after the above three-Judge Bench judgment of Sangeeta Arya [Sangita Arya v. Oriental Insurance Co. Ltd., (2020) 5 SCC 327 : (2020) 3 SCC (Civ) 254 : (2020) 2 SCC (Cri) 905] specifically laid down that both spousal and parental consortium are payable which judgment we have already noticed above.

43. We may also notice one more three-Judge Bench judgment of this Court in M.H. Uma Maheshwari v. United India Insurance Co. Ltd. [M.H. Uma Maheshwari v. United India Insurance Co. Ltd., (2020) 6 SCC 400 : (2020) 3 SCC (Cri) 274 : (2020) 3 SCC (Civ) 744] decided on 12-6-2020. In the above case, the Tribunal had granted the amount of rupees one lakh towards loss of consortium to the wife and rupees three lakhs for all the appellants towards loss of love and affection. The High Court in the above case had reduced the amount of compensation in the appeal filed by the insurance company. The High Court held [United India Insurance Co. Ltd. v. M.H. Uma Maheshwari, 2017 SCC OnLine Kar 6258] that by awarding the amount of rupees one lakh towards loss of consortium to the wife, the Tribunal had committed error while awarding rupees one lakh to the first appellant towards the head of "loss of love and affection". Allowing the appeal filed by the claimant, this Court maintained the order of MACT.

44. In the above judgment although rendered by the three-Judge Bench, there was no challenge to award of compensation of rupees one lakh towards the consortium and rupees three lakhs towards the loss of love and affection. The appeal was filed only by the claimants and not by the insurance company. The Court did not pronounce on the correctness of the amount awarded under the head "loss of love and affection".

45. We may also notice the additional submission advanced in Civil Appeal No. 3099 of 2020 [arising out of SLP (C) No. 8250 of 2020], Oriental Insurance Co. Ltd. v. Rinku Devi & Others. As noted above, we have taken the view that the order [Oriental Insurance Co. Ltd. v. Rinku Devi, 2019 SCC OnLine Del 10493] of the High Court awarding compensation towards "loss of love and affection" @ Rs 50,000 to each of the claimants is unjustified which is being set aside in this appeal. We, further, in the above appeal also set aside the directions of the High Court in para 9 by which statutory amount along with interest accrued thereon was directed to be deposited in Aasra fund.

46. In result, all the appeals are partly allowed. The award of compensation under the conventional head "loss of love and affection" is set aside. Motor Accidents Claims Tribunals shall recompute the amount payable and take further steps in accordance with law.

47. All the appeals are partly allowed accordingly. No costs."

On the issue of compensation under other heads including the conventional heads, learned counsel for the Company submitted that the judgment of Hon'ble Apex Court rendered in Pranay Sethi (supra) was pronounced on 31.10.2017 and subsequent to the same, the judgment was pronounced in the case of Smt. Somwati (supra), however, the present case relates to the accident which took place on 24.12.2012, as such, the law settled by the Hon'ble Apex Court in this regard would not apply in the present case. The submission of learned counsel for the appellants is fallacious because all the judgments operate retrospectively except provided otherwise, as held by the Hon'ble Apex Court in a catena of judgments.

After the above, it is submitted that under different heads including the conventional heads, compensation has been awarded after considering the Rule 220-A of U.P. Motor Vehicle Rules, 1998 (in short "Rules of 1998") and as such, the appellants are not entitled to any enhancement.

On the aforesaid aspects, it would be appropriate to refer the judgment passed by the Apex Court in the case of New India Assurance Co. Ltd. v. Urmila Shukla and Others; 2021 SCC Online 822, wherein, the Hon'ble Apex Court after considering the judgment passed by it in the case of Pranay Sethi (supra) and Rule 220-A of the Rules of 1998, observed as under:-

"8. It is submitted by Mr. Rao that the judgment in Pranay Sethi does not show that the attention of the Court was invited to the specific rules such as Rule 3(iii) which contemplates addition of 20% of the salary as against 15% which was stated as a measure in Pranay Sethi. In his submission, since the statutory instrument has been put in place which affords more advantageous treatment, the decision in Pranay Sethi ought not to be considered to limit the application of such statutory Rule.

9. It is to be noted that the validity of the Rules was not, in any way, questioned in the instant matter and thus the only question that we are called upon to consider is whether in its application, sub-Rule 3(iii) of Rule 220A of the Rules must be given restricted scope or it must be allowed to operate fully.

10. The discussion on the point in Pranay Sethi was from the standpoint of arriving at "just compensation" in terms of Section 168 of the Motor Vehicles Act, 1988.

11. If an indicia is made available in the form of a statutory instrument which affords a favourable treatment, the decision in Pranay Sethi cannot be taken to have limited the operation of such statutory provision specially when the validity of the Rules was not put under any challenge. The prescription of 15% in cases where the deceased was in the age bracket of 50-60 years as stated in Pranay Sethi cannot be taken as maxima. In the absence of any governing principle available in the statutory regime, it was only in the form of an indication. If a statutory instrument has devised a formula which affords better or greater benefit, such statutory instrument must be allowed to operate unless the statutory instrument is otherwise found to be invalid.

12. We, therefore, reject the submission advanced on behalf of the appellant and affirm the view taken by the Tribunal as well as the High Court and dismiss this appeal without any order as to costs."

From the above quoted paras of the judgment of the Hon'ble Apex Court, it appears to this Court that if a "formula" or "provision" in a statute provides "better or greater benefit" then in that event, such "formula" or "provision" of a statute must be allowed to operate.

The Rule 220-A of the Rules of 1998, being relevant, as has been pressed upon by the learned counsel for the respondents, is quoted below for ready reference:-

"220-A. Determination of compensation--(1) The multiplier for determination of loss of income payable as compensation in all the claim cases shall be applied as per Second Schedule provided in the Act.

(2) Deduction for personal and living expenses of a deceased, shall be as follows--

(i) The deduction towards personal expenses of a deceased unmarried shall be 50% where the family of a bachelor is large and dependent on the income of the deceased, the deduction shall be 1/3 (33.33%).

(ii) The deduction towards personal and living expenses of a married person deceased shall be 1/3rd where dependent family members are 2 to 3 in number, 1/4th where dependent family members are 4 to 6 in number and 1/5th where dependent family members are more than 6 in number.

(iii) For the purpose of calculation of number of family members in Clause (ii), a minor dependent will be counted as half.

(3) The future prospects of a deceased, shall be added in the actual salary or minimum wages of the deceased as under--

(i) Below 40 years of age :             50% of the salary.
 
(ii) Between 40-50 years of age :   30% of the salary.
 
(iii) More than 50 years of age :   20% of the salary.
 
(iv) When wages not sufficiently Proved : 50% towards inflation and price index.
 
(4) The non-pecuniary damages shall also be payable in the compensation as follows--
 
(i) Compensation for loss of estate : Rs. 5,000 to Rs. 10,000
 
(ii) Compensation for loss of consortium : Rs. 5,000 to 10,000
 
(iii) Compensation for loss of love and affection : Rs. 5,000 to 15,000
 
(iv) Funeral expenses, costs of transportation of body : Rs. 5,000 or actual expenses whichever is less
 
(v) Medical expenses : actual expenses proved to the satisfaction of the Claims Tribunal.
 
(5) For determination of compensation in case of injuries, partial or permanent disability provisions of second schedule of the Act shall apply:
 
Provided that the Claims Tribunal may also award compensation for future prospects according to sub-rule (3) in case of permanent disability depending upon the nature, extent and its effect on the future of disabled claimants.
 
(6) The rate of interest shall be 7% pendente lite and future till the actual payment."
 

From the Rules of 1998, it is evident that the Rule 220-A was inserted in the Rules of 1998 vide U.P. Motor Vehicles (Eleventh Amendment) Rules 2011 published in U.P. Gazette Extraordinary dated 26.09.2011 and this Rule has not been amended till date though more than 10 years have elapsed.

Considering the date i.e. 26.09.2011 of insertion of Rule 220-A in the Rules of 1998 as also that the same has not been amended till date and inflation, devaluation of rupee, increase in cost of living and increase in cost of expenses towards funeral etc. and the law propounded/ declared by the Hon'ble Apex Court in the judgments passed in the cases of Pranay Sethi (supra) and Smt. Somwati (supra), in the matter of determination of amount of compensation under the Motor Vehicle Act, 1988 (in short "Act of 1988"), provides "better benefits" and also keeping in mind the observation of the Apex Court in the judgment passed in the case of Urmila Shukla (supra), this Court is of the opinion that the provisions of Rule 220-A should be allowed to operate only upto the extent that it provides "better benefits" to the claimant(s) under the Act of 1988, which is a beneficial legislation on the aspect of grant of compensation.

Thus, for the above reasons, in the opinion of this Court, for the purposes of awarding compensation in each head, the judgments of the Hon'ble Apex Court in which principles have been settled on the issue of providing/awarding compensation and the Rules of 1998, both should be considered and whichever provides "better benefits" should be applied.

At this juncture, it would be appropriate to refer a judgment delivered in the case of Kirti & Another vs. Oriental Insurance Company Limited reported in (2021) 2 SCC 166, wherein three Judges Bench of Hon'ble Apex Court after relying upon the observation made in earlier judgment passed in the case of Hem Raj vs. Oriental Insurance Co. Ltd. reported in (2018) 15 SCC 654, observed as under:-

"13. Given how both deceased were below 40 years and how they have not been established to be permanent employees, future prospects to the tune of 40% must be paid. The argument that no such future prospects ought to be allowed for those with notional income, is both incorrect in law [Sunita Tokas v. New India Insurance Co. Ltd., (2019) 20 SCC 688 : (2020) 4 SCC (Cri) 436] and without merit considering the constant inflation-induced increase in wages. It would be sufficient to quote the observations of this Court in Hem Raj v. Oriental Insurance Co. Ltd. [Hem Raj v. Oriental Insurance Co. Ltd., (2018) 15 SCC 654 : (2019) 1 SCC (Civ) 293 : (2019) 2 SCC (Cri) 864], as it puts at rest any argument concerning non-payment of future prospects to the deceased in the present case: (Hem Raj case [Hem Raj v. Oriental Insurance Co. Ltd., (2018) 15 SCC 654 : (2019) 1 SCC (Civ) 293 : (2019) 2 SCC (Cri) 864] , SCC p. 656, para 7)

"7. We are of the view that there cannot be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of a case. Both the situations stand at the same footing. Accordingly, in the present case, addition of 40% to the income assessed by the Tribunal is required to be made."

From the aforesaid, it is evident that in a case of notional income also, the compensation should be calculated/ awarded after considering the "future prospects".

On the issue of awarding the compensation towards future prospects as also under conventional heads, this Court considered the submissions of learned counsel for the parties, the judgment passed in the case of Pranay Sethi (supra), which was delivered after considering the various pronouncements on the issue of granting compensation under the Act of 1988 and other judgments on the issue referred above as also the Rule 220-A of the Rules of 1998 and upon due consideration of aforesaid, this Court is of the opinion that the claimants-appellants are entitled to compensation under these heads.

From the judgment and award dated 18.12.2018, relevant portion of which is quoted above, this Court finds that under the head(s) i.e. medical expenses and funeral expenses, the Tribunal has awarded Rs. 5,000/- under each head and Rs. 10,000/- towards consortium and towards future prospects no amount has been awarded.

Considering the aforesaid facts as also the reasons recorded hereinabove, the award of the Tribunal dated 18.12.2018, so far it relates to grant of compensation towards future prospects and under conventional heads, such as, loss of estate, loss of consortium and funeral expenses etc. is concerned, in view of this Court, is not in consonance with the judgment passed by the Hon'ble Apex Court in the cases of Pranay Sethi (supra) and Smt. Somwati (supra) as also Rule 220-A of the Rules of 1998 as also the law laid down by the Hon'ble Apex Court in the judgment passed in the case of Kirti & Another vs. Oriental Insurance Company Limited reported in (2021) 2 SCC 166. Accordingly, this Court holds that the claimants-appellants are entitled to compensation towards future prospects and enhancement under conventional heads, such as, loss of estate, loss of consortium and funeral expenses etc.

In regard to rate of interest, for the reasons recorded by the Tribunal, this Court is not inclined to interfere in the rate of interest awarded by the Tribunal i.e. 6% per annum.

In view of the aforesaid, this Court is of the view that appellants are entitled to an amount to the tune of Rs. 16,10,800/- as detailed hereinunder, with interest @ 6%, as awarded by the Tribunal, from the date of filing of claim petition till realization.

Calculation Chart

Sl. No.

Heads

Compensation awarded

1.

Income

Rs. 6,000/-

2.

Future Prospects

Rs. 2,400/- (i.e. 40% of the income)

3.

Deduction towards personal expenditure

Rs. 2,100/- [i.e. 1/4th of (6,000 + 2,400)]

4.

Total Income

Rs. 6,300/- [i.e. 3/4th of (6,000 + 2,400)]

5.

Multiplier as per the age of the deceased i.e. 23 years

6.

Loss of future income

Rs. 13,60,800/- (Rs. 6,300 x 12 x 18)

7.

Loss of love and affection for entire family (As per Rule 220-A (4) (iii) of the Rules of 1998)

Rs. 15,000/-

8.

Funeral expenses

Rs. 15,000/-

9.

Loss of Estate

Rs. 15,000/-

10.

Loss of Consortium

Rs. 2,00,000/- [Rs. 40,000 x 5 (wife, son, daughter, mother and father)

11.

Medical Expenses

Rs. 5,000/-

Total Compensation

Rs. 16,10,800/- along with interest @ 6% per annum from the date of filing of claim petition till payment.

It is made clear that this Court has modified the judgment and award dated 18.12.2018, under appeal, passed by the Tribunal, in above terms only. The Tribunal in its judgment and award dated 18.12.2018 has apportioned the amount awarded by it and this Court also deems it appropriate that the enhanced amount awarded by this Court in this judgment shall also be disbursed in the same manner by the Tribunal. Ordered accordingly. The Tribunal while providing the amount in terms of this judgment shall adjust the amount, if any, already paid/ provided to the appellants.

The appeal is allowed in above terms.

Let records, if any, be returned to the Court concerned along with the copy of this judgment for necessary compliance.

Order Date :- 13.12.2021

Arun/-