Allahabad High Court

Dayal & Anr. vs Sanjeev Batra & Anr. on 10 November, 2021

Bench: Saurabh Lavania




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 17
 
Case :- FIRST APPEAL FROM ORDER No. - 71 of 2015
 

 
Appellant :- Dayal & Anr.
 
Respondent :- Sanjeev Batra & Anr.
 
Counsel for Appellant :- Balendu Shekhar,Prakash Chandra
 
Counsel for Respondent :- Vashu Deo Mishra
 

 
Hon'ble Saurabh Lavania,J.

Heard Sri Prakash Chandra, learned counsel for the appellants and Sri Vashu Deo Mishra, learned counsel for the respondents.

The present appeal has been filed for enhancement of compensation awarded by Motor Accident Claims Tribunal (in short "Tribunal"), vide judgment and order dated 22.10.2014 passed in Claim Petition No. 134 of 2013 (Dayal and Others Versus Sanjeev Batra and Others).

Facts, in brief, as pleaded in claim petition before the Tribunal, are that the deceased Heera Lal, who was 20 years old at the time of accident, on 07.03.2013 at about 06:30 AM while he was waiting for some vehicle to reach Lucknow at a place which is situated at Lucknow-Raebareli National Highway near village Mastipur, P.S.-Nigoha, Lucknow, was hit by Vehicle Tata Ace bearing Registration No. UP-32 CZ-5364 and he succumbed to the injuries sustained in the accident and the driver of the Tata Ace was driving it rash and negligently, are not in dispute. The plea that the deceased was earning Rs. 5,000/- per month was not accepted by the Tribunal. The Tribunal, on the basis of notional income i.e. Rs. 3,000/- per month, awarded the compensation. No amount towards future prospects was provided by the Tribunal. Under the head(s) of miscellaneous expenses and loss of estate, the Tribunal awarded Rs. 5000/- each.

For the purposes of adjudication of the claim, the Tribunal framed the following issues:-

"1- D;k fnukad 07&3&2013 dks le; djhc 06%30 cts lqcg y[kuÅ jk;cjsyh jktekxZ ij] xzke eLrhiqj ds lkeus Fkkuk fuxksgka] y[kuÅ essa VkVk ,sl okgu la[;k ;w0ih0&[email protected]&5364 ds pkyd us okgu ds bUrtkj esa [kM+s ghjk yky dks VDdj ekj nh ftlls mls dkQh pksVsa vkbZ ftlds QyLo:i ?kVukLFky ij gh mldh e`R;q gks x;h?

2- D;k nq?kZVuk ds le; VkVk ,sl okgu la[;k ;w0ih0&[email protected]&5364 foi{kh la[;k&2] chek dEiuh ls chfer Fkh?

3- D;k nq?kZVuk ds le; VkVk ,sl okgu la[;k ;w0ih0&[email protected]&5364 ds pkyd ds ikl oS/k ,oa izHkkoh pkyu vuqKfIr Fkh?

4- D;k ;kphx.k {kfriwfr ds :i esa /kujkf'k ikus ds vf/kdkjh gSa] ;fn gkWa rks fdruh vkSj fdlls ?"

There is no dispute regarding the findings recorded by the Tribunal on issue nos. 1 to 3. The issue no. 4 which relates to grant of compensation is in question before this Court.

While pressing the present appeal for enhancement of compensation, the first issue raised is to the effect that the Tribunal wrongly applied the multiplier. Elaborating on this aspect, learned Counsel for the appellants submitted that multiplier of 18 ought to have been applied after taking note of the age of the deceased i.e. 20 years at the time of accident, however, in the present case the multiplier of 11 has been applied by the Tribunal after considering the age of the father of the deceased. In this regard reliance has been placed on the judgment of Hon'ble Supreme Court passed in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Others; reported in (2017) 16 SCC 680: 2017 ACJ 2700. Relevant paragraph 59 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."

On the issue of multiplier, the learned Counsel for the Insurance company Sri Vashu Deo Mishra, submitted that the judgment passed in the case of Pranay Sethi (Supra), is of the year 2017 and it is not applicable in the present case as the accident in which Heeralal expired is of year 2013. However, he could not dispute the ratio of the judgment passed by the Hon'ble Supreme Court in the case of Pranay Sethi (Supra). The submission of learned Counsel for the Insurance Company Sri Vashu Deo Mishra, on the issue of applicability of law laid down by the Hon'ble Supreme Court in the judgment passed in the case of Pranay Sethi (Supra) is fallacious and unsustainable as law is otherwise.

All the judgments apply retrospectively except otherwise provided. It is well established principle of law that the principle of prospective operation of over ruling of judgment, does not apply except where it is specifically mentioned. The law declared by the Hon'ble Supreme Court is normally assumed to be the law from inception. Prospective operation is only exception to this general rule. It is trite law that where the question of law has been settled by the Courts, then it has to held that the said question of law was in existence right from the first day.

The Hon'ble Supreme Court in the case of Sarwan Kumar vs. Madan Lal Aggarwal; reported in (2003) 4 SCC 147 , observed as under:-

"15. For the first time this Court in Golak Nath v. State of Punjab accepted the doctrine of "prospective overruling". It was held: (AIR p. 1669, para 51)

"51. As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances, we would like to move warily in the beginning. We would lay down the following propositions: (1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by the highest court of the country i.e. the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India; (3) the scope of the retroactive operation of the law declared by the Supreme Court superseding its ''earlier decisions' is left to its discretion to be moulded in accordance with the justice of the cause or matter before it."

The doctrine of "prospective overruling" was initially made applicable to the matters arising under the Constitution but we understand the same has since been made applicable to the matters arising under the statutes as well. Under the doctrine of "prospective overruling" the law declared by the Court applies to the cases arising in future only and its applicability to the cases which have attained finality is saved because the repeal would otherwise work hardship on those who had trusted to its existence. Invocation of the doctrine of "prospective overruling" is left to the discretion of the Court to mould with the justice of the cause or the matter before the Court. This Court while deciding Gian Devi Anand case did not hold that the law declared by it would be prospective in operation. It was not for the High Court to say that the law laid down by this Court in Gian Devi Anand case would be prospective in operation. If this is to be accepted then conflicting rules can supposedly be laid down by different High Courts regarding the applicability of the law laid down by this Court in Gian Devi Anand case or any other case. Such a situation cannot be permitted to arise. In the absence of any direction by this Court that the rule laid down by this Court would be prospective in operation, the finding recorded by the High Court that the rule laid down in Gian Devi Anand case by this Court would be applicable to the cases arising from the date of the judgment of this Court cannot be accepted being erroneous."

The Hon'ble Supreme Court in the case of M.A. Murthy vs. State of Karnataka; reported in (2003) 7 SCC 517, observed as under:-

"8. The learned counsel for the appellant submitted that the approach of the High Court is erroneous as the law declared by this Court is presumed to be the law at all times. Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. The doctrine of prospective overruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in L.C. Golak Nath v. State of Punjab. InManaging Director, ECIL v. B. Karunakar the view was adopted. Prospective overruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases. (See Ashok Kumar Gupta v. State of U.P. and Baburam v. C.C. Jacob.) It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs. That being the position, the High Court was in error by holding that the judgment which operated on the date of selection was operative and not the review judgment in Ashok Kumar Sharma case No. II. All the more so when the subsequent judgment is by way of review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of the High Court are, therefore, set aside."

The Hon'ble Supreme Court in the case of K. Madhava Reddy vs. State of Andhra Pradesh; reported in (2014) 6 SCC 537, observed as under:-

"10. We have heard the learned counsel for the parties at length. The doctrine of prospective overruling has its origin in American jurisprudence. It was first invoked in this country in Golak Nath v. State of Punjab, with this Court proceeding rather cautiously in applying the doctrine, was conscious of the fact that the doctrine had its origin in another country and had been invoked in different circumstances. The Court sounded a note of caution in the application of the doctrine to the Indian conditions as is evident from the following passage appearing in Golak Nath case wherein this Court laid down the parameters within which the power could be exercised. This Court said: (AIR p. 1669, para 51)

11. It is interesting to note that the doctrine has not remained confined to overruling of earlier judicial decision on the same issue as was understood in Golak Nath case. In several later decisions, this Court has invoked the doctrine in different situations including in cases where an issue has been examined and determined for the first time. For instance in India Cement Ltd. v. State of T.N., this Court not only held that the levy of the cess was ultra vires the power of the State Legislature brought about by an amendment to the Madras Village Panchayat Amendment Act, 1964 but also directed that the State would not be liable for any refund of the amount of that cess which has been paid or already collected. In Orissa Cement Ltd. v. State of Orissa, this Court drew a distinction between a declaration regarding the invalidity of a provision and the determination of the relief that should be granted in consequence thereof. This Court held that it was open to the Court to grant, mould or restrict the relief in a manner most appropriate to the situation before it in such a way so as to advance the interest of justice."

12. Reference may also be made to the decision of this Court in Union of India v. Mohd. Ramzan Khan where non-furnishing of a copy of the enquiry report was taken as violative of the principles of natural justice and any disciplinary action based on any such report was held liable to be set aside. The declaration of law as to the effect of non-supply of a copy of the report was, however, made prospective so that no punishment already imposed upon a delinquent employee would be open to challenge on that account."

13. In Ashok Kumar Gupta v. State of U.P., a three-Judge Bench of this Court held that although Golak Nath case regarding unamendability of fundamental rights under Article 368 of the Constitution had been overruled in Kesavananda Bharati v. State of Kerala yet the doctrine of prospective overruling was upheld and followed in several later decisions. This Court further held that the Constitution does not expressly or by necessary implication provide against the doctrine of prospective overruling. As a matter of fact Articles 32(4) and 142 are designed with words of width to enable the Supreme Court to declare the law and to give such directions or pass such orders as are necessary to do complete justice. This Court observed: (Ashok Kumar Gupta case, SCC pp. 246-47, para 54)

"54. ... So, there is no acceptable reason as to why the Court in dealing with the law in supersession of the law declared by it earlier could not restrict the operation of law, as declared, to the future and save the transactions, whether statutory or otherwise, that were effected on the basis of the earlier law. This Court is, therefore, not impotent to adjust the competing rights of parties by prospective overruling of the previous decision in Rangachari ratio. The decision in Mandal case postponing the operation for five years from the date of the judgment is an instance of, and an extension to the principle of prospective overruling following the principle evolved in Golak Nath case."

14. Dealing with the nature of the power exercised by the Supreme Court under Article 142, this Court held that the expression "complete justice" are words meant to meet myriad situations created by human ingenuity or because of the operation of statute or law declared under Articles 32, 136 or 141 of the Constitution. The Hon'ble Supreme Court observed: (Ashok Kumar Gupta case, SCC pp. 250-51, para 60)

"60. ... The power under Article 142 is a constituent power transcendental to statutory prohibition. Before exercise of the power under Article 142(2), the Court would take that prohibition (sic provision) into consideration before taking steps under Article 142(2) and we find no limiting words to mould the relief or when this Court takes appropriate decision to mete out justice or to remove injustice. The phrase ''complete justice' engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of statute law or law declared under Articles 32, 136 and 141 of the Constitution and cannot be cribbed or cabined within any limitations or phraseology. Each case needs examination in the light of its backdrop and the indelible effect of the decision. In the ultimate analysis, it is for this Court to exercise its power to do complete justice or prevent injustice arising from the exigencies of the cause or matter before it. The question of lack of jurisdiction or nullity of the order of this Court does not arise. As held earlier, the power under Article 142 is a constituent power within the jurisdiction of this Court. So, the question of a law being void ab initio or nullity or voidable does not arise."

15. In Somaiya Organics (India) Ltd. v. State of U.P., this Court held that the doctrine of prospective overruling was in essence a recognition of the principle that the court moulds the relief claimed to meet the justice of the case and that the Apex Court in this country expressly enjoys that power under Article 142 of the Constitution which allows this Court to pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before this Court. The Hon'ble Court observed: (SCC p. 532, para 27)

"27. In the ultimate analysis, prospective overruling, despite the terminology, is only a recognition of the principle that the court moulds the reliefs claimed to meet the justice of the case -- justice not in its logical but in its equitable sense. As far as this country is concerned, the power has been expressly conferred by Article 142 of the Constitution which allows this Court to ''pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it''. In exercise of this power, this Court has often denied the relief claimed despite holding in the claimants' favour in order to do ''complete justice'."

16. The "doctrine of prospective overruling" was, observed by this Court as a rule of judicial craftsmanship laced with pragmatism and judicial statesmanship as a useful tool to bring about smooth transition of the operation of law without unduly affecting the rights of the people who acted upon the law that operated prior to the date of the judgment overruling the previous law."

The Hon'ble Supreme Court in the case of B.A. Linga Reddy vs. Karnataka State Transport Authority; reported in (2015) 4 SCC 515, observed as under:-

34. The view of the High Court in Ashrafulla has been reversed by this Court. The decision is of retrospective operation, as it has not been laid down that it would operate prospectively; more so, in the case of reversal of the judgment. This Court in P.V. George v. State of Kerala held that the law declared by a court will have a retrospective effect if not declared so specifically. Referring to Golak Nath v. State of Punjab it had also been observed that the power of prospective overruling is vested only in the Supreme Court and that too in constitutional matters. It was observed: (P.V. George case, SCC pp. 565 & 569, paras 19 & 29) "19. It may be true that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the interest of the citizens. The doctrine of prospective overruling although is applied to overcome such a situation, but then it must be stated expressly. The power must be exercised in the clearest possible term. The decisions of this Court are clear pointer thereto.

* **

29. Moreover, the judgment of the Full Bench has attained finality. The special leave petition has been dismissed. The subsequent Division Bench, therefore, could not have said as to whether the law declared by the Full Bench would have a prospective operation or not. The law declared by a court will have a retrospective effect if not otherwise stated to be so specifically. The Full Bench having not said so, the subsequent Division Bench did not have the jurisdiction in that behalf."

35. In Ravi S. Naik v. Union of India, it has been laid down that there is retrospective operation of the decision of this Court. The interpretation of the provision becomes effective from the date of enactment of the provision. In M.A. Murthy v. State of Karnataka, it was held that the law declared by the Supreme Court is normally assumed to be the law from inception. Prospective operation is only exception to this normal rule. It was held thus: (M.A. Murthy case, SCC pp. 520-21, para 8)

"8. The learned counsel for the appellant submitted that the approach of the High Court is erroneous as the law declared by this Court is presumed to be the law at all times. Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. The doctrine of prospective overruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in Golak Nath v. State of Punjab. InECIL v. B. Karunakar the view was adopted. Prospective overruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases. (See Ashok Kumar Gupta v. State of U.P. and Baburam v. C.C. Jacob.) It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs. That being the position, the High Court was in error by holding that the judgment which operated on the date of selection was operative and not the review judgment in Ashok Kumar Sharma case. All the more so when the subsequent judgment is by way of review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of the High Court are, therefore, set aside."

The Hon'ble Supreme Court in the case of P.V. George vs. State of Kerala; reported in (2007) 3 SCC 557 has held as under:-

"27. The rights of the appellants were not determined in the earlier proceedings. According to them, merely a law was declared which was prevailing at that point of time; but the appellants were not parties therein. Thus, no decision was rendered in their favour nor any right accrued thereby."

Thus, it is clear that the principle of prospective overruling would not apply in respect of the judgment passed by the Supreme Court unless and until it is expressly so mentioned in the judgment. Furthermore, there cannot be an estoppel against the statute.

The Hon'ble Supreme Court in the case of Bengal Iron Corpn. vs. CTO; reported in 1994 Supp (1) SCC 310 has held as under:-

"18. ... ............ There can be no estoppel against the statute. ... ............... Law is what is declared by this Court and the High Court -- to wit, it is for this Court and the High Court to declare what does a particular provision of statute say, and not for the executive. Of course, the Parliament/Legislature never speaks or explains what does a provision enacted by it mean. (SeeSanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd.)"

Thus, where the question of law has been settled by the Courts, then it has to be held that the said question of law was in existence right from day one.

However, where the rights of a party have been considered and declared, then the said proceedings cannot be reopened on the ground that the judgment on the basis of which, the rights were declared, has been overruled. The Hon'ble Supreme Court in the case of Union of India v. Madras Telephone SC & ST Social Welfare Assn., reported in (2006) 8 SCC 662; has held as under:-

"21. Having regard to the above observations and clarification we have no doubt that such of the applicants whose claim to seniority and consequent promotion on the basis of the principles laid down in the Allahabad High Court's judgment inParmanand Lal case have been upheld or recognised by the Court or the Tribunal by judgment and order which have attained finality will not be adversely affected by the contrary view now taken in the judgment in Madras Telephones. Since the rights of such applicants were determined in a duly constituted proceeding, which determination has attained finality, a subsequent judgment of a court or tribunal taking a contrary view will not adversely affect the applicants in whose cases the orders have attained finality. We order accordingly."

Thus, it is clear that the judgment passed by the Hon'ble Supreme Court in the case of Pranay Sethi (supra) would apply in the present case as the order passed by the Tribunal has been challenged. It is not a case where the claimants have tried to reopen a case which has already been finalized. It goes without saying that it is settled proposition of law that an appeal is continuation of original proceedings.

Sri Mishra on the issue of multiplier also submitted that multiplier has correctly been applied by the Tribunal. In this regard he placed reliance upon the judgment passed by the Hon'ble Supreme Court in the case of Shakti Devi Vs. New India Insurance Company Limited And Another; reported in 2011 (1) TAC 4 (SC). On this aspect the view of this Court is that the latest view of Constitution Bench of Hon'ble Supreme Court would prevail over the view taken in the judgment passed in the case of Shakti Devi (Supra) as such also the argument of the Counsel for the Company on the issue of multiplier has no force.

Considering the aforesaid, on the issue of multiplier, this Court after taking note of age of deceased i.e. 20 years at the time of accident, is of the view that in the instant case for grant of compensation the multiplier of 18 is the correct multiplier and has to be applied and the Tribunal based upon the age of father of the deceased has wrongly applied the multiplier of 11.

It is next submitted by the learned Counsel for the appellants that notional income of Rs. 3,000/- per month i.e. Rs. 36,000/- per annum of deceased, who was black smith (yksgkj) and at the time of death was earning about Rs. 5,000/- per month as pleaded in the claim petition, has wrongly been considered by the Tribunal for grant of compensation. He submitted that accident took place on 07.03.2013 and on account of injury sustained the son of the appellant no. 1 expired on spot. As such, considering the date of death of the son of the appellant no. 1 as also the law on this issue, the notional income of the deceased should be considered as Rs. 6,000/- per month.

Opposing the aforesaid, Sri Mishra learned Counsel for the Insurance Company, submitted that in the claim petition the income of the deceased, per month, has been shown as Rs. 5,000/-, as such, beyond this amount the income cannot be enhanced.

The Hon'ble Apex Court in the judgment passed in the case of Magma General Insurance Company Ltd. vs. Nanu Ram and Others; reported in 2018 SCC Online SC 1546; observed as under:-

"8.3 With respect to the income of the deceased, as the family could not produce any evidence to show that the income of the deceased was Rs 15,000 per month, as claimed, the High Court took his income to be Rs 6000, which is marginally above the minimum wage of an unskilled worker at Rs 5342.

This finding is also not being interfered with.

8.4. The Insurance Company has submitted that the father and the sister of the deceased could not be treated as dependents, and it is only a mother who can be dependent of her son. This contention deserves to be repelled. The deceased was a bachelor, whose mother had pre-deceased him. The deceased's father was about 65 years old, and an unmarried sister. The deceased was contributing a part of his meagre income to the family for their sustenance and survival. Hence, they would be entitled to compensation as his dependents.

8.5. The Insurance Company has contended that the High Court had wrongly awarded Rs. 1,00,000 towards loss of love and affection, and Rs. 25,000 towards funeral expenses.

The judgment of this Court in Pranay Sethi (supra) has set out the various amounts to be awarded as compensation under the conventional heads in case of death. The relevant extract of the judgment is reproduced herein below :

"(54)....Therefore, we think it seemly to fix reasonable sums. It seems to us 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 principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years." (Emphasis supplied)

As per the afore-said judgment, the compensation of Rs. 25,000 towards funeral expenses is decreased to Rs. 15,000.

The amount awarded by the High Court towards loss of love and affection is, however, maintained.

8.6 The MACT as well as the High Court have not awarded any compensation with respect to Loss of Consortium and Loss of Estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognized by the Constitution Bench in Pranay Sethi (supra).

The Motor Vehicles Act is a beneficial and welfare legislation. The Court is duty-bound and entitled to award "just compensation", irrespective of whether any plea in that behalf was raised by the Claimant.

In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs. 15,000 towards Loss of Estate to Respondent Nos. 1 and 2.

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. Rajesh v. Rajbir Singh, (2013) 9 SCC 54.

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."Black's Law Dictionary (5th ed. 1979).

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 relationships. 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 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.

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 @ Jagmal Singh v. Sohi Ram 2017 (4) RLW 3368 (Raj); Uttarakhand High Court in Smt. Rita Rana v. Pradeep Kumar 2014 (3) UC 1687; Karnataka High Court in Lakshman v. Susheela Chand Choudhary, (1996) 3 Kant LJ 570 (DB).

However, there was no clarity with respect to the principles on which compensation could be awarded on loss of 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 Pranay 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.

9. In light of the abovementioned discussion, Respondents 1 and 2 are entitled to the following amounts:

Head

Compensation awarded

(i)

Income

Rs 6000

(ii)

Future prospects

Rs 2400 (i.e. 40% of the income)

(iii)

Deduction towards personal expenditure

Rs 2800 i.e. ⅓rd of (Rs 6000 + Rs 2400)

(iv)

Total income

Rs 5600 i.e. ⅔rd of (Rs 6000 + Rs 2400)

(v)

Multiplier

(vi)

Loss of future income

Rs 12,09,600 (Rs 5600 × 12 × 18)

(vii)

Loss of love and affection

Rs 1,00,000 (Rs 50,000 each)

(viii)

Funeral expenses

Rs 15,000

(ix)

Loss of estate

Rs 15,000

(x)

Loss of filial consortium

Rs 80,000 (Rs 40,000 payable to each of Respondents 1 and 2)

Total compensation awarded

Rs 14,25,600 along with interest @ 12% p.a. from the date of filing of the claim petition till payment.

Out of the amount awarded, Respondent 1 is entitled to 60% while Respondent 2 shall be granted 40% along with interest as specified above."

In the case of Chameli Devi and Others vs. Jivrail Mian and Others; reported in 2019 (4) TAC 724 (S.C.), the Hon'ble Supreme Court observed 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/-."

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 Supreme Court, for the purposes of granting of compensation, after considering the state of economy and rising prices in agriculture products held that a vegetable vendor is reasonably capable of earning Rs. 6,500/- per month.

"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."

In 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), 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.

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."

This Court feels that reference to the judgment of the Hon'ble Supreme Court passed in the case of New India Assurance Company Limited vs. Smt. Somwati and Others; reported in 2020 (3) T.A.C. 711 (S.C.), is also relevant. In this case, the Hon'ble Supreme Court considered the issue as to whether both consortium and loss of love and affection could have been awarded. The Hon'ble Supreme Court on the issue aforesaid observed as under:-

"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."

Considering the date of accident i.e. 07.03.2013, monthly income of the deceased mentioned in the claim petition as also observations of the Hon'ble Supreme Court and this Court in the judgments referred above, this Court is of view that notional income of the deceased for the purpose of calculating compensation should be considered as Rs. 5,000/- per month.

Learned Counsel for the appellants next submitted that the future prospects were demanded in the claim petition, which has not been disputed by the other side, however, the Tribunal failed to grant any amount towards future prospect and as such, as per law laid down by the Hon'ble Supreme Court in the case of Pranay Sethi (Supra), the amount towards future prospect is also liable to be granted.

Learned Counsel for the respondents could not dispute the settled position of law as also the fact that the Tribunal did not granted any amount towards future prospects. Accordingly, this Court is of the view that claimant/appellant no. 1 is entitled for future prospect as held by the Hon'ble Apex Court in the judgment passed in the case of Pranay Sethi (Supra).

Learned Counsel for the appellants further stated that under the conventional head(s) i.e. miscellaneous expenses and loss of Estate, the Tribunal has awarded Rs. 5,000/- each. Thus this amount is also liable to be enhanced in view of the judgment passed in the cases of Pranay Sethi (Supra) and Magma General Insurance Company Ltd. (Supra).

Considering the amount awarded by the Tribunal in the light of judgment referred hereinabove, this Court is of the view that appellants are entitled to the enhanced amount under conventional heads such as loss of estate, funeral expenses, loss of consortium.

In view of the aforesaid, this Court is of the view that appellants are entitled to an amount to the tune of Rs. 8,66,000/- as detailed hereinunder, with interest @ 7%, as awarded by the Tribunal, from the date of filing of claim petition till realization.

Calculation Chart

Sl. No.

Heads

Compensation awarded

Income-Rs. 5,000/- P.M. X 12

Rs. 60,000/- P.A.

Deduction towards personal expenses in case of Bachelor

50%

Dependency

Rs. 30,000/-

Multiplier as per age of the deceased i.e. 20 years

Future Prospect at 40%

Rs. 12,000/-

Total income 30,000 + 12,000

Rs. 42,000/-

Compensation Total = 42,000 X 18

Rs. 7,56,000/-

Loss of Estate

Rs. 15,000/-

Loss of Funeral expenses

Rs. 15,000/-

10.

Loss of Consortium to both appellants

Rs. 40,000 + Rs. 40,000 =Rs. 80,000/-

Total Compensation

Rs. 8,66,000/-

It is made clear that this Court has modified the judgment and award dated 22.10.2014, under appeal, passed by the Tribunal, with respect to the amount awarded by the Tribunal as also that out of above amount awarded to the appellant No.2, Priti, sister of the deceased, would be entitled to Rs. 40,000/-, which is the amount awarded to her under the head of loss of consortium. 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 disposed of finally in above terms.

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

Order Date :- 10.11.2021

Jyoti/-