Smt. Kusum Devi And Others vs Ram Chandra Kesarwani And Another
2023 Latest Caselaw 1390 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 6							Reserved
 
Case :- FIRST APPEAL FROM ORDER No. - 1648 of 2008
 

 
Appellant :- Smt. Kusum Devi and others
 
Respondent :- Ram Chandra Kesarwani And Another
 
Counsel for Appellant :- Ms. Deepali Srivastava Sinha, Advocate
 
Counsel for Respondent :- Mr. Rajeev Ojha, Advocate
 
Hon'ble J.J. Munir,J.

This is a claimants appeal, arising out of the award of the Motor Accident Claims Tribunal/ Additional District Judge, Court No.12, Allahabad dated 12.02.2008 passed in MACP No. 365 of 2005.

2. Heard Ms. Deepali Srivastava Sinha, learned Counsel for the claimant-appellants and Mr. Rajeev Ojha, learned Counsel for respondent No. 2/Insurance Company. No one appears on behalf of respondent No. 1.

3. According to the claimant-appellants (for short, 'the claimants'), Vijay Singh Kushwaha was travelling on board Jeep, bearing registration No. UP-70S/9177 on the 23rd of May, 2005. The vehicle was moving between Karari and Allahabad (now Prayagraj). At about 2:30 in the afternoon, on account of the driver of the said vehicle driving it rashly and negligently, it collided with a Mahua tree. In consequence, Kushwaha sustained grievous injuries and died on the spot. At the time of his demise, Kushwaha was about 28 years. He was engaged in dairy business and agriculture. He would earn, according to the claimants, a sum of Rs. 10,000/- per mensem. A First Information Report about the accident was lodged with Police Station Sarai Akil, District Kaushambi. On the basis of the said report, Case Crime No. 77 of 2005, under Sections 279, 304A IPC was registered. The deceased's body was sent for autopsy to Allahabad on 25.05.2005. The deceased has left behind him his wife, Smt. Kusum Devi, aged 28 years, two sons, Shubham and Sukesh, aged 7 years and 6 years, respectively, besides his mother, Smt. Sharda Devi, aged 70 years. Each of the aforesaid heirs of the deceased were dependent upon him. The claimants, therefore, instituted this claim petition before the Tribunal, seeking compensation in the sum of Rs. 20,00,000/- under Section 166 of the Motor Vehicles Act, 1988 (for short, 'the Act') and a sum of Rs. 50,000/- separately under Section 140 of the Act. Interest at the rate of 12% per annum was claimed from the date of accident.

4. A written statement was filed by Ram Chandra Kesarwani, opposite party No. 2 to the claim petition, who is the owner of the Jeep. He shall hereinafter be referred to as 'the owner'. The owner is impleaded as respondent No. 1 to this appeal. In his written statement, the owner has generally denied the claimants' allegations and asserted that the Jeep in question was not involved in any accident on 23.05.2005 at 2:30 p.m. nor was the deceased travelling on board the same. It has been averred that a false First Information Report has ben lodged with the Police by the claimants. It has, however, been pleaded that the Jeep in question was insured with the National Insurance Company from 27.07.2004 to 26.07.2005, regarding which Insurance Cover Note No. G-3/35912 was issued. At the time of the accident, the driver of the Jeep held a valid and effective driving licence. The other papers of the vehicle were also in order. It was the owner's stand that in case his vehicle is found involved in the accident, liability to pay compensation would fall on the Insurance Company's shoulder.

5. A separate written statement was filed on behalf of the National Insurance Company (for short, 'the Insurers') denying the claimants' allegations. It was said that the claimants had to prove their case pleaded in the petition. It was averred further that the deceased was not travelling on board the Jeep in question and he did not die in consequence of the accident involving the driver's negligence. It is also the Insurance Company's case that the deceased was himself negligent. The claimants have not filed copies of the FIR, the charge-sheet, the site plan, the postmortem report, the Jeep's permit, Registration Certificate, the Insurance Policy and the driver's driving licence. The Insurers also asserted that they are not answerable for the loss sustained on account of a motor accident by a vehicle, that is driven in breach of the policy.

6. On the pleadings of parties, four issues were framed. Since this appeal is by the claimants alone with no challenge to the award by the Insurers or the owner, the only issue that arises for consideration is the quantum of compensation payable and the person liable to pay it. This question is the subject matter of Issue No. 4.

7. The claimants and the owner have filed documentary evidence. The claimants' documents being large in number, these are summarized in the judgment of the Tribunal and no useful purpose would be served by recapitulating the list of document. However, relevant evidence would be dealt with during the course of this judgment. The claimants examined Smt. Kusum Devi as PW-1, Ashutosh as PW-2, besides Arvind Kumar as PW-3. The Insurers did not produce any oral or documentary evidence.

8. The Tribunal has held on the issue of involvement and negligence of the Jeep in question in favour of the claimants while deciding Issue No. 1. Also, the Tribunal has held in favour of the claimants on the issue about the driver holding a valid driving licence on the date of accident. Likewise, on Issue No. 3, the Tribunal has held that the Jeep in question was validly insured with the Insurers on the date of accident. Now, this takes us to the fourth issue, which is the subject of this appeal.

9. The learned Counsel for the claimants has submitted that the compensation awarded is far on the lower side and there is ample evidence on record to establish that the deceased had a monthly income of Rs. 10,000/-. The Tribunal has ignored documentary evidence on record to conclude that the deceased had a monthly income of Rs. 4000/-. Deduction of a one-thirds towards the deceased's personal expenses has also been criticized by the learned Counsel. The learned Counsel has also submitted that a sum of Rs. 5000/- awarded towards loss of consortium for the wife alone is grossly inadequate. She submits that no compensation for the loss of consortium to the children has been awarded, besides that nothing has been awarded under the heads of loss of estate and funeral expenses. The learned Counsel for the claimants has particularly said that the quantum of compensation is deficient because nothing has been awarded towards future prospects.

10. The learned Counsel for the Insurers, on the other hand, has submitted that the Tribunal has passed a just award considering the deceased's income, age and other circumstances.

11. The Tribunal in order to determine the deceased's monthly income has looked into the various documents produced in evidence by the claimants. A receipt by the Zila Panchayat, Kaushambi, paper No. 21-Ga/13 dated 21.01.2005, besides a book of accounts relating to the business of supply of milk, bearing paper No. 21-Ga/21 has also been considered. Some papers of transactions relating to the cattle market and the cattle fare from Muratganj, Kaushambi were also on record, which show through some receipts trade in cattle by the deceased. A Kisan Bahi filed relating to the deceased's agricultural holding has also been considered by the Tribunal. The Tribunal has remarked that the documents on record do not include a document about proof of the deceased's income.

12. The Tribunal has taken note of the testimony of Smt. Kusum Devi, the deceased's wife, who has said that the deceased had a monthly income of Rs. 10,000/-. In her cross-examination, the Tribunal has noticed that Smt. Kusum Devi has acknowledged the fact that the deceased had four buffaloes and four cows, that yielded about 40-45 litrs of milk per day. While cows' milk would fetch Rs.16/- a litre, the buffaloes' would fetch Rs. 17/-. The Tribunal has also taken note of the fact that some of the deceased's customers still buy milk from his wife, who has 5-6 cattle heads. The Tribunal has also taken note of documents relating to the deceased's bank accounts and term deposits, for the purpose of determination of the deceased's income.

13. This Court notices that the Kisan Bahi on record shows that the deceased does not have a very large holding. He has a one-sixth share in his ancestral property with a total area of 0.260 hectare, which converts to 2600 square meters. The said land area is hardly substantial for agriculture. So far as the documents relating to milk trade are concerned, they do reflect receipt of revenue and also show trade. There is a running account about supply of milk to various customers, written on old papers, which appear to show sale to a number of customers, whose names are mentioned at the top of the book in various columns. The daily sale per customer is expressed in litres. This document shows that the deceased was indeed into the business of milk supply, that would yield him income. There is on record a term deposit receipt dated 04.02.2004, bearing paper No. 21-Ga/20 issued by the Allahabad Kshetriya Gramin Bank with a face value of Rs. 1 lakh and a term of 24 months carrying interest @ 8%. The maturity value has been shown as Rs. 1,17,166/-. There are three Kisan Vikas Patra, bearing paper Nos. 21-Ga/17, 21-Ga/18 and 21-Ga-/19, each worth Rs. 10,000/-. The saving bank account passbook issued by the Allahabad Kshetriya Gramin Bank shows that the deceased held a joint saving bank account with his wife. There is just one page of the passbook on record from 08.05.2005 to 09.06.2006. Deposits made during this period are sums of Rs. 80,000/-, 918/-, 565/-, 12,000/-, 10,000/- and 5,000/-. The aforesaid deposit do show receipts and deposit in the saving bank account, and certainly, the deceased had a reasonable income from his business in supply of milk, which he utilized to support his family. The Tribunal has estimated it at a sum o Rs. 4,000/-.

14. There is no reason for this Court to take a different view. The reason is that the agricultural holding of the deceased is hardly extensive enough to support a rewarding yield and whatever proof of income has been annexed from the supply of milk does not on the overall figures of it support a monthly income higher in sum than that estimated by the Tribunal. It is, accordingly, held that the deceased had a monthly income of Rs. 4000/-. The annual income of the deceased would, therefore, be Rs. 48,000/-.

15. The deceased has left behind three dependents. In Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121, it has been held by the Supreme Court:

"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."

16. Here, the deceased has left behind three heirs, which would place them in the bracket of dependent family members being 2-3. In that case, deduction towards personal expenses would be one-third. The Tribunal is, therefore, right in deducting a one-third of the deceased's income towards personal expenses.

17. In order to determine the total loss of dependency, the Tribunal has applied a multiplier of '18'. The deceased has been found by the Tribunal to be aged 25-30 years. Going by the Table set out in Paragraph No. 40 of the report in Sarla Verma (supra) for the age bracket of 26-30 years, the appropriate multiplier is '17'; not 18.

18. The Tribunal has not awarded any sum of money towards future prospects. This is an issue, which requires consideration. The question, whether future prospects are to be considered in cases where the deceased was self-employed or working on fixed wages, fell for consideration of the Supreme Court in National Insurance Company v. Pranay Sethi and others, (2017) 16 SCC 680. In Pranay Sethi (supra), it has been held:

"56. The seminal issue is the fixation of future prospects in cases of deceased who are self-employed or on a fixed salary. Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] has carved out an exception permitting the claimants to bring materials on record to get the benefit of addition of future prospects. It has not, per se, allowed any future prospects in respect of the said category.

57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardisation, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardisation on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.

58. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] thinks it appropriate not to add any amount and the same has been approved inReshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] . Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self-employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts."

19. Another issue that arises for consideration is whether future prospects to which the claimants are entitled would be governed by the law laid down in Pranay Sethi or Rule 220-A (3) of the U.P. Motor Vehicles Rules, 1998 (for short, the Rules of 1998). This issue was considered by the Supreme Court in New India Assurance Co. Ltd v. Urmila Shukla and others, 2021 SCC OnLine SC 822, where it was held:

"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.T he discussion on the point inPranay Sethiwas 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 inPranay Sethicannot 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 inPranay Sethicannot 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."

20. It is, thus, settled that the future prospects in the State of Uttar Pradesh have to be determined in accordance Rule 220-A(3) of the Rules of 1998 and not the decision in Pranay Sethi.

21. The next issue which arises is: whether Rule 220-A(3) of the Rules of 1998, that was introduced by Notification No. 777/XXX-4-2011-4(3)-2010 dated 26 September, 2011 i.e. The Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011, would apply retrospectively to an accident that took place much before the amendment? This question fell for consideration of a Division Bench of this Court in Sushil Kumar and others v. M/s. Sampark Lojastic Private Limited and others, 2017 (35) LCD 1311. In Sushil Kumar (supra), it has been held:

"31. Rule 220-A was inserted in the Uttar Pradesh Motor Vehicles Rules, 1998 in view of the various decisions of the law courts for providing benefit on account of future prospects of the injured/deceased. It provides for addition of certain percentage of the income of the injured/deceased in his actual income depending upon the age of the injured/deceased for the purposes of determination of the compensation. The aforesaid Rule came into effect on 26.09.2011 after the decision of the claim petition but before filing of the appeal though the accident took place on 08.05.2010 much before the enforcement of the above Rule.

32. It is in view of the above that an argument is being raised that Rule 220-A of the Rules which came into effect on 26.09.2011 would not apply to the accident which had taken place on 08.05.2010.

33. In Ram Sarup Vs. Munshi AIR 1963 SC 553 it was laid down that a change in law during the pendency of an appeal has to be taken into account and will cover the rights of the parties.

34. The view expressed above was followed by the Supreme Court in Mula Vs. Godhu AIR 1971 SC 89.

35. In Dayawati Vs. Inderjit AIR 1966 SC 1423 the court had observed as under:-If the new law speaks in language, which expressly or by clear intendment, takes in even pending matters, the court of trial as well as the court of appeal must have regard to an intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance.

36. In Amarjit Kaur Vs. Pritam Singh AIR 1974 SC 2068 effect was given to the change in law during the pendency of an appeal as the hearing of an appeal under the procedural law of this country is in the nature of rehearing of the suit by superior court.

37. It was in the light of the above decisions that in Lakshmi Narayan Guin and others Vs. Niranjan Modak AIR 1985 SC 111 it was held that a change in law during the pendency of an appeal has to be taken into account and will cover the right of the parties.

38. The aforesaid decision was followed by a Division Bench of this court in U.P. State Road Transport Corporation Vs. Smt. Madhu Sharma and others, 2003 (4) AWC 2620 which was a case in relation to the provisions of the Motor Vehicles Act and it was observed that it is apparent that the change in law during the pendency of the original proceedings has to be taken into account so as to cover the rights of the parties.

39. In view of above decision the view expressed by the Division Bench of this court in ICICI Lombard (Supra) is not of good law as it does not takes into account the decisions referred to above in holding that the Rule 220-A of the Rules which came into effect on 26.09.2011 would not apply to the accident that took place prior to the said date only for the reason that the Rule was not specifically stated to be retrospective in nature."

22. According to the law laid down by the Division Bench in Sushil Kumar (supra), which apparently binds this Court, the award of future prospects is to be made in accordance with Rule 220-A(3) of the Rules of 1998, notwithstanding the fact that accident happened prior to the amendment. Now, going by Rule 220-A(3), considering the age of the deceased, which is much less than 40 years, 50% is to be added to his income towards future prospects.

23. Still another matter which requires consideration is that about the claimants' entitlement under the conventional heads. Here again, the principle in Pranay Sethi is relevant, where it has been held:

"48. This aspect needs to be clarified and appositely stated. The conventional sum has been provided in the Second Schedule to the Act. The said Schedule has been found to be defective as stated by the Court in Trilok Chandra [UP SRTC v. Trilok Chandra, (1996) 4 SCC 362] . Recently, in Puttamma v. K.L. Narayana Reddy [Puttamma v.K.L. Narayana Reddy, (2013) 15 SCC 45 : (2014) 4 SCC (Civ) 384 : (2014) 3 SCC (Cri) 574] it has been reiterated by stating : (SCC p. 80, para 54)

"54. ... we hold that the Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy."

49. As far as multiplier or multiplicand is concerned, the same has been put to rest by the judgments of this Court. Para 3 of the Second Schedule also provides for general damages in case of death. It is as follows:

"3. General damages (in case of death):

The following general damages shall be payable in addition to compensation outlined above:

(i)

Funeral expenses

Rs 2000

(ii)

Loss of consortium, if beneficiary is the spouse

Rs 5000

(iii)

Loss of estate

Rs 2500

(iv)

Medical expenses -- actual expenses incurred before death supported by bills/vouchers but not exceeding

Rs 15,000"

50. On a perusal of various decisions of this Court, it is manifest that the Second Schedule has not been followed starting from the decision in Trilok Chandra [UP SRTC v.Trilok Chandra, (1996) 4 SCC 362] and there has been no amendment to the same. The conventional damage amount needs to be appositely determined. As we notice, in different cases different amounts have been granted. A sum of Rs 1,00,000 was granted towards consortium inRajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] . The justification for grant of consortium, as we find fromRajesh [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 founded on the observation as we have reproduced hereinbefore.

51. On the aforesaid basis, the Court has revisited the practice of awarding compensation under conventional heads.

52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed 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] . 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. ThoughRajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] refers to 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] , 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."

(emphasis by Court)

24. The award of compensation for loss of consortium is a matter that engaged attention of the Supreme Court in Magma General Insurance Company Ltd. v. Nanu Ram alias Chuhru Ram and others, (2018) 18 SCC 130. In Magma General Insurance Company Ltd. (supra), it has been held:

"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.

(emphasis by Court)

25. In view of the aforesaid conclusions, the compensation payable to the claimants in this appeal would have to be revised in the following manner:-

(i)

Monthly Income (of the deceased)

=

4000/-

(ii)

Monthly Income+Future Prospects (monthly income x 50%) = 4000+2000

=

6000/-

(iii)

Annual Income (of the deceased) = 6000x12

=

72,000/-

(iv)

Annual Dependency = Annual Income - one-third deduction towards personal expenses of the deceased = 72000-24000

=

48,000/-

(v)

Total Dependency = Annual Dependency x Applied Multiplier = 48,000x17

=

8,16,000/-

(vi)

Claimants' entitlement towards conventional heads = Loss of Estate + Funeral Expenses + dependents' Consortium =15000+15000+40000x3

=

1,50,000/-

The total compensation would therefore, work out to a figure of Rs. 8,16,000+ Rs. 1,50,000

=

9,66,000/-

26. In the result, this appeal is allowed in part. The impugned award passed by the Tribunal is modified and the compensation awarded enhanced to Rs. 9,66,000/-. The aforesaid sum of money shall carry simple interest at the rate of 7% per annum from the date of institution of the claim petition, until realization. Any sum of money already deposited with the Tribunal by the Insurer, pursuant to the impugned award or the interim orders passed by this Court, shall be adjusted against the award. The other directions of the Tribunal in the award shall remain intact. Costs easy.

Order Date :- 13.1.2023

Anoop