The New India Assurance Company ... vs Smt. Renu And Ors.
2021 Latest Caselaw 11081 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 20
 

 
Case :- FIRST APPEAL FROM ORDER No. - 724 of 2018
 
Appellant :- The New India Assurance Company Ltd.Throu.Law Officer
 
Respondent :- Smt. Renu And Ors.
 
Counsel for Appellant :- Zafar Aziz,Paritosh Sharma
 
Counsel for Respondent :- Deshdeepak Bajpai,Ravindra Pratap Singh
 

 
Hon'ble Ravi Nath Tilhari,J.

1. Heard Sri Zafar Aziz, learned counsel for the appellant and Sri Ravindra Pratap Singh, learned counsel for claimant-respondent Nos. 1 to 8.

2. As per service report dated 07.05.2019, service upon respondent No. 9 is sufficient, but nobody appears on her behalf.

3. This appeal has been filed by the New India Assurance Company Limited under Section 173 of the Motor Vehicles Act, 1988 ( in short "the Act, 1988") challenging the judgment and award dated 31.07.2018 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 05, Barabanki (in short "the Tribunal") in Claim Petition No. 29/2013 in Re Smt. Renu and others Vs. Smt. Meena Dixit.

4. The claimant-respondent Nos. 1 to 8 filed claim petition, claiming compensation against the owner of the offending vehicle/opposite party No. 9 and the Insurance Company-the appellant, on account of death of Ayodhya Prasad Yadav, their predecessor, in the accident dated 05.10.2012 caused on account of rash and negligent driving of the offending vehicle Maruti Car No. U.P.32-CQ-0456.

5. After contest, the Tribunal vide judgment and award dated 31.07.2018 allowed the claim petition and awarded compensation amount of Rs. 42, 05,038/- in total, with interest @ 7 % thereon from the date of filing of the claim petition up to the date of payment.

6. The Tribunal recorded finding that the accident was caused due to rash and negligent driving of the offending vehicle, being driven by its driver. The offending vehicle, at the time of accident had valid and effective documents and was insured with the appellant herein. The driver at the time of accident, was having valid and effective driving licence. Accordingly, the compensation, as mentioned above, was awarded in favour of the claimants.

7. The appeal was filed challenging the award on different grounds, but at the time of arguments Sri Zafar Aziz, learned counsel for the appellant confines the challenge to the quantum of compensation awarded and that too without challenging the findings of the Tribunal on the age and income of the deceased. The multiplier as applied by the Tribunal has also not been challenged.

8. The only submission of Sri Zafar Aziz is that the Tribunal erred in making one- fifth (1/5th ) deduction towards the personal and living expenses of the deceased, which should have been one-fourth (1/4th); and the amount of Rs. 15,000/- under the head of "loss of love and affection" could not have been awarded at all, as in view of the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others, reported in 2017 (4) TAC 673 (SC); (2017) 16 SCC 680, any such head, for grant of compensation is not mentioned. The compensation could be awarded under the conventional heads of "loss of consortium", "loss of estate" and "funeral expenses" and the amount under those heads could only be awarded.

9. Sri Ravindra Pratap Singh, learned counsel for the claimant-respondents submits that the deduction of one- fifth (1/5th ) towards personal and living expenses of the deceased is perfectly justified, which is as per the law laid down by Hon'ble Supreme Court in the case of Pranay Sethi (supra), as there are 8 dependant family members of the deceased.

10. Sri Ravindra Pratap Singh further submits that the amount of Rs. 15,000/- has been rightly awarded, under the head of "loss of love and affection", as the amount of compensation under the head of "loss of consortium" has not been awarded to all the claimants but to only one claimant as the amount under the head of "loss of consortium" is only 40,000/-. The amount of Rs. 15,000/- awarded under the head of "loss of love and affection" is in fact also for "loss of consortium" to the claimants. He submits that all the claimants would be entitled for compensation for loss of consortium @ 40,000/- per head and considering this aspect, the award of Rs. 15,000/- though mentioned under the head of "loss of love and affection" need not be interfered.

11. I have considered the submissions advanced by the learned counsels for the parties and perused the record.

12. The points which arise for consideration are:

i) Whether the deduction of 1/5th made by the Tribunal towards the personal and living expenses of the deceased is legal or it should be one - fourth ( 1 / 4th ) ?

ii) Whether grant of compensation of Rs. 15,000/- under the head of "loss of love and affection" calls for any interference ?

13. So far as the first point is concerned, the Tribunal has made deduction of one - fifth ( 1 / 5th ) in view of the number of dependant family members of the deceased, being eight.

14. In the case of Pranay Sethi (supra) the Hon'ble Supreme Court has held as under, in paragraph 37 of SCC report:

"37. Before we proceed to analyse the principle for addition of future prospects , we think it seemly to clear the maze which is vividly reflectible from Sarla Verma , Reshma Kumari , Rajesh and Munna Lal Jain . Three aspects need to be clarified . The first one pertains to deduction towards personal and living expenses . In paragraphs 30 , 31 and 32 , Sarla Verma lays down :

"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, the general practice is to apply standardised deductions . Having considered several subsequent decisions of this (2003 ) 3 SLR (R) 601 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.".

15. It has thus been clearly laid down in Pranay Sethi (supra) that the deduction towards personal and living expenses of the deceased should be one-fifth (1/5th) where the number of dependent family members exceeds six.

16. The number of the dependents being 8, has not been disputed by the learned counsel for the appellant.

17. In view of the aforesaid, I do not find any illegality in the judgment of the Tribunal in making deduction of one - fifth ( 1 / 5th ), towards personal and living expenses of the deceased, which is as per the settled law.

18. Point No. 1 is answered accordingly in terms of paragraph 17.

19. Now I proceed to consider Point No. 2 i.e. whether grant of compensation of Rs. 15,000/- under the head of "loss of love and affection" calls for any interference.

20. The above aspect on the point "loss of consortium" has been considered by Hon'ble Supreme Court, inter alia, in the following cases.

21. In Pranay Sethi (supra), in paragraph 52, Hon'ble Supreme Court has held as under:-

"52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh Vs. Rajbir Singh (2013) 9 SCC 54. It has granted Rs 25.000 towards. funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh (supra) refers to Santosh Devi Vs National Insurance Co. Ltd (2012) 6 SCC 421, it does not seem to follow the same. The conventional and traditional heads, needless to say, 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. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. 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. We are disposed to hold so because that will bring in consistency in respect of those heads.

22. Paragraph Nos. 59 and 59.8 of Pranay Sethi (supra) are also being reproduced as under :

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

"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."

23. In the case of New India Assurance Company Limited Versus Smt. Somwati and others (2020) 9 SCC 644, the Hon'ble Supreme Court after considering Pranay Sethi (supra) and United India Insurance Company Limited Vs. Satinder Kaur alias Satvinder Kaur and others (2020) SCC online 410, held 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. Paragraph Nos. 32 and 33 of Smt. Somwati (supra) are being reproduced as under:

"32. A three-Judge Bench in United India Insurance Company Ltd. versus Satinder Kaur alias Satvinder Kaur and others, (2020) SCC Online 410, had reaffirmed the view of two-Judge Bench in Magma General insurance Company Ltd. Three-Judge Bench from paragraph 53 to 65, dealt with three conventional heads. The entire discussion on three conventional heads of three-Judge Bench is as follows: -

"53. In Pranay Sethi (supra), 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 nonpecuniary 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. In Magma General Insurance Co. Ltd. V. Nanu Ram and Ors (supra) 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 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 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 consortium will be as per the amount fixed in Pranay Sethi (supra).

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 in Pranay Sethi (supra), has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses.

64. In Magma General (supra), 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"

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. 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."

24. In Smt. Somwati (supra), the Hon'ble Supreme Court found the impugned judgments of High Court awarding consortium to each of the claimants in accordance with the law but found no justification for award of compensation under separate head "loss of love and affection". It would be appropriate to refer paragraph Nos. 37, 38 and 39 of Smt. Somwati (supra), which are as under:

"37. Learned counsel for the appellant has submitted that Pranay Sethi has only referred to spousal consortium and no other consortium was referred to in the judgment of Pranay Sethi, hence, there is no justification for allowing the parental consortium and filial consortium. The Constitution Bench in Pranay Sethi 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 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 Company Ltd. (Supra) has categorically laid down that apart from spousal consortium, parental and filial consortium is payable. We feel ourselves bound by the above judgment of 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 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 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'."

25. In view of the aforesaid judgments it is clear that:

i) Reasonable figure 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, which amounts should be enhanced at the rate of 10 % in every three years. [para 59.8 of Pranay Sethi (supra)].

(ii) Consortium, in legal parlance 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. "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 which causes great shock and agony to the parents and family of the deceased. [Satinder Kuar alias Satvinder Kaur (supra)].

(iii) The judgment of Pranay Sethi (supra) cannot be read to mean that it lays down the proposition that the consortium is payable only to the wife. [para 37 of Smt. Somwati (supra)]

(iv) Grant of compensation under the head of "loss of consortium" to all the claimants @ 40,000/- each, was held as according to law. [Satinder Kuar alias Satvinder Kaur (supra)]

(v) "loss of love and affection" is comprehended in "loss of consortium" and hence there is no justification to award compensation towards "loss of love and affection" as a separate head.

26. In Smt. Somwati (supra), each of the claimants were awarded compensation under the head of loss of consortium @ 40,000/- each and also compensation under separate head of "love and affection". While maintaining the grant of compensation to each claimant for loss of consortium, the compensation granted under separate head for "loss of love and affection" was set aside.

27. In the present case, each of the claimants has not been awarded compensation under the head "loss of consortium". Grant of Rs. 40,000/- only, under the head "loss of consortium" would be only for one dependent member of the deceased. The compensation for "loss of consortium" to all the claimants has not been awarded. In view of the judgments in Pranay Sethi (supra), Smt. Somwati (supra) and Satinder Kaur @ Satvinder Kaur (supra) if the compensation @ 40,000/- to all the 8 claimants had been awarded, the total amount of compensation would have been on the much higher side than the awarded amount. Although the claimants have not filed any appeal for enhancement of the amount of compensation by grant of compensation to all the claimants under "loss of consortium" but considering the aforesaid fact and also that Motor Vehicles Act is a beneficial legislation, the total awarded amount deserves not be reduced and the amount of Rs. 15,000/- awarded under the head of loss of love and affection is held to be also towards "loss of consortium".

28. If, all the claimants had been awarded compensation under "loss of consortium" and also under separate head of "loss of love and affection" the matter would have been otherwise.

29. On point No.2 it is held that the grant of compensation of Rs. 15,000/- shall also be towards "loss of consortium". The award does not call for interference with respect to that amount of Rs. 15,000/-.

30. The appeal is dismissed.

Order Date :- 13.9.2021

Arvind