Jagdish Prasad Sharma And Another vs Nazimulla And Others
2021 Latest Caselaw 4533 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 21
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1146 of 2020
 

 
Appellant :- Jagdish Prasad Sharma And Another
 
Respondent :- Nazimulla And Others
 
Counsel for Appellant :- Nigamendra Shukla,Anju Shukla
 
Counsel for Respondent :- .,Pawan Kr Singh
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajit Singh,J.

1. Heard Sri Nigamendra Shukla, learned counsel for the appellants, Sri Arvind Kumar, learned counsel for respondent-Insurance Company and perused the judgment and order impugned.

2. This appeal, at the behest of the claimants who are the parents of the deceased, challenges the judgment and award dated 22.4.2010 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.4, Ghaziabad (hereinafter referred to as 'Tribunal') in MACP No.492 of 2006 awarding a sum of Rs.3,92,000/-with interest at the rate of 6% in favour of the claimants for the death of Deepak Sharma.

3. Parents of the deceased were ordered to be paid 1,92,000/- with 6% rate of interest out of the said award. As far as the widow is concerned, she has felt happy with the amount ordered to be paid to her by the Tribunal and, therefore, she has not come up before this Court.

4. The accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The Insurance Company has not challenged the liability imposed on them. The only issue to be decided is, the quantum of compensation awarded.

5. At the outset, Sri Nigamendra Shukla, learned counsel for the appellants has contended that the Income Tax Return Report, the oral testimony of the widow and the payslip have been erroneously not believed by the Tribunal just because there is no seal or signature of the employee. It is also submitted that the Tribunal has not believed photocopy of income tax certificate and the salary slip of the deceased and has held that claimants have failed to proof that the deceased was a salaried person. The Tribunal, according to learned counsel for the appellant, has erred in assessing the income of the deceased to be Rs.3,000/- on the date of accident namely on 1.8.2006.

6. Learned counsel for the appellant has further submitted that the Tribunal has not granted any amount towards future loss of income which requires to be added in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and that the amount awarded under non-pecuniary heads is very less namely Rs.8000/- which requires enhancement. It is further submitted that the rate of interest should be 12% and not 6% as awarded by the Tribunal.

7. Per contra, Sri Arvind Kumar, learned counsel for the respondent-Insurance Company has contended that no evidence which could be taken in evidence were produced by the claimants and, therefore, no fault can be found with the finding of the Tribunal as far as assessment of income is concerned.

8. It is further submitted by learned counsel for the respondent that the compensation and the rate of interest awarded by the Tribunal is just and proper and does not call for any interference of this Court.

9. Having heard the counsel for the parties and considered the factual data, this Court found that the accident occurred on 1.8.2006 causing death of Deepak Sharma who was 30 years of age and was survived by his parents and widow. The deceased was working as Sales Executive in Team Lease Services Pvt. Limited. Even if we go by the strict pleadings which the learned Tribunal has gone with. There are semblance of proof to show that the deceased was an educated person even in the year 2006. In Income Tax Return for the year 2006-07, the deceased had shown his income to be Rs.1,24,186 per annum plus Rs.13,600/- from other sources namely from tuition.

10. Even if we did not consider all these aspects and the fact that the Income Tax Certificate did no have stamp on it, we would oblige to believe two things namely; the deceased was having his own vehicle and was also continuing life insurance policies from Bajaj Allianze, L.I.C & Aviva Life Insurance. These are all facts which can be considered while assessing the the income of the deceased.

11. Decision in Mohammed Siddique and another Vs. National Insurance Company Limited and others, (2020) 3 SCC 57 would apply to the facts of this case. Looking to the ratio laid down in the said decision, even if we opine that there is semblance of certificates produced by the claimants, we can safely take the average income to be Rs.9,000/-. Even if we do not believe the Income Tax Return, the appellant was having his own income also and in that view of the matter, the said decision would apply.

12. We would also fall back of the judgment of the Apex Court in Kirti Vs. Oriental Insurance Co. Ltd., 2021 (1) T.A.C. 1 (S.C.) wherein the Apex Court has held notional income for non earning victims. Grant of compensation on pecuniary basis even for home maker is proposition which laid down by the Apex Court in the said decision.

13. We also feel that when the deceased was maintaining his family, was maintaining his vehicle and was paying huge premium towards life insurance policies of private companies, it can be safely presumed that he was earning minimum Rs.9,000/- per month.

14. Looking to all these facts, even if we accept the submission of Sri Arvind Kumar, learned counsel for the appellant, we consider the income of the deceased to be Rs.9,000/- per month. To which 40% will have to be added in view of the decision of the Pranay Sethi (Supra) as the deceased was below 40 years. Looking to the age of the deceased, the applicable multiplier would be 17 in view of the decision of the Apex Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. Finding of the Tribunal on deduction towards personal expences of the deceased is not disturbed.

15. The parents have lost their son at a very young age, the Tribunal has awarded meagre amount under the head of filial consortium. The Apex Court while awarding filial consortium in Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram & Ors (2018) 18 SCC 130 has held as under:

"8.7 A Constitution Bench of this Court in Pranay Sethi (Supra) 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.3

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, co-operation, affection, and aid of the other in every conjugal relation."4

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."

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.

Consortium is a special prism reflecting changing norms about the status and worth of actual relationship. Modern jurisdictions world over have recognized 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 jurisdiction therefore permit parents to be awarded compensation under the loss of consortium on the death of a child. The amount awarded to the parent is a compensation for loss of the love, affection, care and companionship of the child.

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 loss their parents in motor vehicle accidents under the Act.

A few High Courts have awarded compensation on this count5. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of consortium filial consortium.

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 Prany Sethi (Supra).

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."

(Emphasis Added)

16. In view of the above, we award Rs.50,000/- towards filial consortium and Rs.30,000/- under other non-pecuniary heads.

17. Hence, the total compensation payable to the appellants as discussed herein above would be:

i. Income Rs.9,000/-

ii. Percentage towards future prospects : 40% namely Rs.3600/-

iii. Total income : Rs. 9,000 + 3600 = Rs.12,600/-

iv. Income after deduction of 1/3rd : Rs.8400/-

v. Annual income : Rs.8400 x 12 = Rs.1,00,800/-

vi. Multiplier applicable : 17

vii. Loss of dependency: Rs.1,00,800 x 17 = Rs.17,13,600/-

viii. Amount towards filial consortium : Rs.50,000/-

ix. Amount towards loss of estate : Rs.30,000/-

x. Total compensation : 17,93,600/-

18. 11. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under :

"13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."

19. No other grounds are urged orally when the matter was heard.

20. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. The amount once deposited be distributed between the parents. The amount already deposited by the Insurance Company arising out of the death of Deepak Sharma, be deducted from the amount to be deposited.

Order Date :- 24.3.2021

DKS