Ruhi Arora And Another vs Smt. Monika Arora And 4 Others
2023 Latest Caselaw 16992 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:135884
 
A.F.R.
 
Reserved.
 
In Chamber.
 

 
Case :- FIRST APPEAL FROM ORDER No. - 301 of 2020
 

 
Appellant :- Ruhi Arora And Another
 
Respondent :- Smt. Monika Arora And 4 Others
 
Counsel for Appellant :- Santosh Tripathi,Ajay Kumar Singh,Ashok Kumar Singh Bais,Ramesh Chandra Srivastava
 
Counsel for Respondent :- S.D. Ojha
 

 
Hon'ble Ashutosh Srivastava,J.

1. Heard Shri Dev Dutt Arora (appellant No. 2) In-person for the appellants and Shri S. D. Ojha, learned counsel for the claimant-respondent Nos. 1 to 3. No one appeared for respondent Nos. 4 & 5 despite service.

2. This First Appeal From Order dated 17.8.2013, at the instance of the unmarried sister and father of the deceased, has been filed seeking to modify the judgment/award of the Motor Accident Claims Tribunal, Saharanpur rendered in MACP No. 149 of 2011 (Smt. Monika Arora and others versus Vishnu Kumar Meena and others) by making re-apportionment of the share of the awarded compensation of Rs.52,80,328/- and grant appropriate share to appellant No. 1 (unmarried sister of the deceased) and to enhance the share of the appellant No. 2 from 10% of the award to 20% by making adjustment from the 60% share of claimant respondent No. 1-Smt. Monika Arora (widow of the deceased).

3. The appellant No. 2, In-person, submits that his only son Vikalp Arora died in a road accident which took place on 22.4.2011 at 3:30 PM near Chachura Nahar Thana Kakor District Gautam Budh Nagar on the Bulandshahr Noida Road. Vikalp was traveling in a Alto Car bearing registration No. UP-21-T-7739 along with his friends Ankit and Surjeet when a Truck bearing registration No. RJ-11-GA-2075 overturned over the Alto car crushing the occupant Vikalp Arora resulting in his death on the spot. Vikalp Arora was 33 years of age and employed as a Territory Sales Officer with Hindustan Unilever Ltd., and earning approx Rs.70,000/- per month. He was survived by his wife Monika Arora, a minor daughter Ananya Arora and minor son Luv Arora besides the appellants herein. A claim petition under Section 166 of the Motor Vehicles Act, being Claim Petition No. 149 of 2011 was filed before the MACT, Saharanpur by the claimant-respondent Nos. 1 to 3 along with the appellants herein claiming a compensation of Rs.1,57,10,000/- besides Rs.50,000/- immediately under Section 140 of the Motor Vehicles Act and 12% interest per annum from the date of accident upto the date of actual payment under Section 171 of the Act. The claims Tribunal under the impugned award dated 17.8.2013 awarded a sum of Rs.52,80,328/- as compensation with 6% simple interest from the date of institution of the claim petition. The claims Tribunal did not award any compensation to the appellant No. 1 herein (unmarried sister) on the ground that she could not be treated to be dependent upon the deceased brother during the life time of the father (appellant No. 2 herein). The Tribunal, however, apportioned 10% of the amount awarded as compensation in favour of the appellant No. 2 (father of deceased). 60% of the award was apportioned in favour of the wife of the deceased (claimant respondent No. 1 herein) while the dependent minor children of the deceased (claimant respondent Nos. 2 & 3 herein) were apportioned 15% each of the compensation awarded.

4. The wife of the deceased i.e. Monika Arora along with her two minor children i.e. the claimant-respondent Nos. 1 to 3 herein assailed the award dated 17.8.2013 passed by the Motor Accident Claims Tribunal, Saharanpur before this Court by means of FAFO (D) No. 290 of 2014. The appeal filed by the wife and minor children of the deceased (i.e. the claimant-respondent Nos. 1 to 3 herein) came to be decided in terms of a settlement arrived at before the National Lok Adalat held before this Court vide order dated 3.10.2021 wherein the Insurance Company (ICICI Lombard General Insurance Co. Ltd.) and the claimants amicably settled the appeal for a full and final consideration of Rs.26,25,000/- over and above the amount that had already been received by the claimants (if any). The settlement also contained a stipulation that nothing beyond the above amount settled would be payable to the claimants by the Insurance Company (ICICI Lombard General Insurance Co. Ltd.).

5. Shri S. D. Ojha, learned counsel for respondent Nos. 1 to 3 submits that the settlement arrived at on 3.10.2021 has already been given effect to and the claimants have received the amount of the compensation in the same proportion as has been awarded by the Tribunal under the impugned award. The appellant No. 2 Dev Dutt Arora has been released 10% of the awarded amount i.e. Rs.2,62,500/-.

6. This Court in the aforesaid backdrop is required to decide the present appeal.

7. Shri Dev Dutt Arora, the appellant No. 2, who has appeared in person has made the following submissions:-

the Claims Tribunal manifestly erred in law in denying the compensation to the appellant No. 1 (sister of the deceased) on the ground that she could not be treated to be dependent upon her deceased brother during the life time of her father (Appellant No. 2). She was also liable to be awarded compensation to the extent of 15% of the amount of compensation awarded.

the Claims Tribunal wrongly apportioned 10% amount for the appellant No. 2 whereas he ought to have been awarded 20% as he lost his only son.

the compensation amount is not just and proper and is not commensurate with the loss suffered by the claimants/appellants on the accidental death of Vikalp Aora, the only brother/son of the appellant Nos. 1 & 2.

refusing compensation to the appellant No. 1 is based on no evidence and the appellant No. 1 cannot be treated to be financially dependent upon her father (appellant No. 2) specially when the appellant No. 2 himself was dependent upon the income of his deceased son Vikalp Arora.

8. It is accordingly prayed that the appeal is liable to be allowed and the award of the Motor Accident Claims Tribunal is liable to be modified accordingly as prayed.

9. Shri S. D. Ojha, learned counsel for claimant/respondent Nos. 1 to 3, however, submits that the award of the Motor Accident Claims Tribunal, Saharanpur is just and proper and needs no interference by this Court. The Tribunal has found that the appellant No. 1, Ruhi Arora was dependent upon her father (appellant No. 2) who was running a general merchant shop. He, thus, submits that the appeal warrants rejection.

10. I have heard the respective parties and have perused the record.

11. So far as the denial of the compensation consequent to the death of Vikalp Arora to the appellant No. 1, Juhi Arora (unmarried sister) on the ground that she could not be held to be dependent upon the deceased during the life time of her father (appellant) appears to be justified in the absence of any evidence that the deceased had been contributing towards the fee etc., for the education of the appellant No. 1. No evidence was led before the Claims Tribunal in this regard and no evidence to this effect has been led before this Court. It has come in evidence that the appellant No. 2 had been running his Kirana shop which fact has not been denied. In such view of the matter,the Court is not inclined to interfere in the finding of the Tribunal in this regard.

12. The Apex Court in the case of Sarla Verma and others versus Delhi Transport Corporation & another, reported in 2009 (6) SCC 121, has held that where the deceased was married the deduction towards personal and living expenses should be 1/3rd if the number of dependent family members is two to three; 1/4th if the number of dependent family member is four to six; and 1/5th if the number of dependent family members exceeds six. If the deceased was a bachelor and the claim was filed by the parents, the deductions would normally be 50% as personal and living expenses of the bachelor. Subject to the evidence to the contrary the father was likely to have his own income and would not be considered to be a dependent. Hence, the mother alone will be considered to be a dependent. In the absence of any evidence to the contrary, brothers and sisters of the deceased bachelor would not be considered to be dependents because they would usually either be independent and earning, or married, or dependent on the father.

13. The above view taken in the case of Sarla Verma (supra) has been upheld by a three Judges Bench in Reshma Kumari and others versus Madan Mohan and another reported in 2013 (9) SCC 65 as also by a subsequent constitutional Bench in the case of National Insurance Co. Ltd., versus Pranay Sethi reported in 2017 (16) SCC 680.

14. Now, coming to the quantum of the compensation determined by the Claims Tribunal under the impugned award and the apportionment of the same in favour of the appellant No. 2 (father of the deceased) the Court finds that the Tribunal has followed the principles for assessment of compensation in case of death as evolved by judicial dicta i.e. Sarla Verma (supra) in particular and has arrived at just compensation by applying the correct multiplier and making deductions for personal and living expenses following the standards prescribed in Para 30, 31 & 32 of the decision in the case of Sarla Verma (supra). This Court finds that the Tribunal proceeded to compute the compensation payable to the claimants as under:-

i)

Income

Rs. 4,19,562/- p.a.

ii)

Deduction towards personal expenses (1/3)

Rs.1,39,854/-

iii)

Multiplicand and bonus

Rs.2,79,708/- + Rs.50,000/- =Rs.3,29,708/-

= (Rs.4,19,562 - Rs.1,39,854 + Rs.50,000)

iv)

Loss of dependency

Rs.3,29,708 x 16 = Rs.52,75,708/-

v)

Funeral expenses

Rs.2,500/-

vi)

Loss of spousal consortium

Rs.2,500/-

Total compensation

Rs.52,80,328/-

15. The Claims Tribunal thus proceeded to award a sum of Rs.52,80,328/- to the claimants. The appellant No. 1 has not been awarded any compensation. The appellant No. 2 has been awarded 10% of the compensation computed i.e. Rs.5,23,032.80 or Rs.5,28,033/-. The wife and minor children of the deceased have been awarded 60%, 15% and 15% of the compensation along with 6% interest per annum.

16. A perusal of the impugned award of the Claims Tribunal reflects that a sum of Rs. 2,500/- has been awarded towards loss of spousal consortium and Rs.2500/- towards funeral expenses.

17. In National Insurance Company Ltd. versus Pranay Sethi reported in (2017) SCC 680 the Constitution Bench of the Apex Court held that the conventional and traditional heads (i.e. loss of estate, loss of consortium and funeral expenses) 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 of 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 of the Courts and Tribunals are likely to be unguided. Therefore, the reasonable figures on the conventional heads namely, loss of estate, loss of consortium  and funeral expenses should be 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. The Apex Court observed that it would be condign that the amounts that has quantified as above should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a spam of three years which will bring in consistency in respect of those heads.

18. In Santosh Devi v. Mahaveer Singh [(2018) 9 SCC 146] a Three-Judge Bench of the Apex Court granted compensation on conventional heads, in terms of the figures standardized by the Constitution Bench in the year 2017, in Pranay Sethi, (supra) to the wife and children of one Puran Chand, who died in a motor accident, which occurred on 30.12.1992.

19. In Sureshchandra Bagmal Doshi v. New India Assurance Company Limited [(2018) 15 SCC 649] the Apex Court granted the figures on conventional heads standardised by the Constitution Bench in the year 2017, in Pranay Sethi, i.e., Rs.15,000/- as loss of estate; Rs.40,000/- towards loss of consortium; and Rs.15,000/- as funeral expenses to the parents [appellants before the Apex Court], who lost their only daughter in a motor accident which occurred on 16.08.1998. In the said decision, Rs.40,000/- granted in Pranay Sethi towards loss of consortium was granted to the appellants, who are the parents of the deceased, towards loss of love and affection. Paragraphs 1 and 14 of the said decision read thus;

"1. Fate can be cruel. This is a tragic case where the only daughter of a lawyer husband and a doctor wife, who got married early and unfortunately became a widow also at a young age, died in a vehicular accident, which took place on 16.8.1998. The claim of the parents (appellants herein) in respect of this unfortunate demise forms the subject matter of the present appeal.

xxx xxx xxx

14. Now coming to the last aspect, i.e., the conventional heads, in National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], it has been standardised at Rs.15,000 for loss of estate; Rs.40,000 towards loss of consortium (in the present case loss of love and affection) and Rs.15,000 towards funeral expenses. The total amount, thus, would be Rs.70,000, which as per the said judgment is capable of being enhanced @ 10 per cent in the span of every three years. However, we are still within the window of three years." "underline supplied"

20. In Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram [(2018) 18 SCC 130], after referring to the decision in Pranay Sethi (supra), the Apex Court held that 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. 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'. 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.

21. In the case of Magma General Insurance (supra), the Apex Court held that 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 a case where parents have 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 Motor Vehicles Act. The Apex Court held further that, 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).

22. In the case of Magma General Insurance (supra), the deceased was aged 24 years, who was engaged in the business of manufacturing 'namkeen products', who died in a motor accident which occurred on 01.12.2013. The father, brother and sister of the deceased filed claim petition under Section 166 of the Motor Vehicles Act. The Claims Tribunal did not award any compensation to the brother of the deceased, as he could not be considered to be a dependent. Compensation was awarded to the father and unmarried sister of the deceased, who were held to be dependents. The father and sister of the deceased filed appeal before the Punjab and Haryana High Court for enhancement of the compensation awarded by the Claims Tribunal. The High Court found that the Claims Tribunal used the wrong principle for application of multiplier. The multiplier ought to have been taken on the basis of the age of the deceased and not that of his father. The High Court, while re-assessing the compensation granted a sum of Rs.1,00,000/- (Rs.50,000/- x 2) towards loss of love and affection to the father and unmarried sister of the deceased. The insurer filed S.L.P. before the Apex Court contending, inter alia, that the father and sister of the deceased could not be considered as dependents, and were not entitled to compensation. In case of death of bachelor, only the mother could be considered to be a dependent. The grant of Rs.1,00,000/- on account of loss of love and affection, and Rs.25,000/- towards funeral expenses is erroneous. It was contended that only Rs.30,000/- could have been awarded as per the judgment in Pranay Sethi (supra). [i.e., loss of estate - Rs.15,000/- and funeral expenses - Rs.15,000/-] The Apex Court held that, considering that the deceased was living in a village, where he was residing with his aged father, who was about 65 years old, and an unmarried sister, the High Court correctly considered them to be dependents of the deceased, and made a deduction of 1/3 rd towards personal expenses of the deceased. [Para.16 @ page 135 of SCC] The Apex Court found that the deceased was a bachelor, whose mother had pre-deceased him. The father of the deceased was about 65 years old and his sister was unmarried. The deceased was contributing a part of his meager income to the family for their sustenance and survival. Therefore, the Apex Court held that the father and unmarried sister of the deceased would be entitled to compensation under his dependents. [Para.18 @ page 136 of SCC] Dealing with the contention of the insurer 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 Apex Court, after quoting Para 52 of the decision in Pranay Sethi (supra), decreased the compensation under the head funeral expenses from Rs.25,000/- to Rs.15,000/-. However, the amount awarded under the head loss of love and affection was maintained. After explaining the concept of spousal consortium, parental consortium and filial consortium, the Apex Court deem it appropriate to award the father and unmarried sister of the deceased, an amount of Rs.40,000/- each for loss of filial consortium.

23. In view of the law laid down by the Constitution Bench of the Apex Court in Pranay Sethi (supra), which was followed in Santhosh Devi and Suresh Chandra Bagmaldoshi referred to supra, the compensation payable under the conventional heads of loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, 40,000/- and Rs.15,000/- respectively. The aforesaid figures quantified by the Apex Court should be enhanced on percentage basis, at the rate of 10%, in a span of every three years.

24. In view of the law laid down by the Apex Court in Magna General Insurance Company Ltd (Supra) after referring to the decision in Pranay Sethi (Supra) the surviving spouse (respondent no. 1 herein) is entitled for spousal consortium to the extent of 40,000/- instead of Rs. 2,500/- awarded. Likewise the funeral expenses are liable to be increased to Rs. 15,000/- from Rs. 2,500/- awarded by the Claims Tribunal. The appellants herein being the unmarried sister and father of the deceased are entitled to a sum of Rs. 40,000/- each on account of loss of filial consortium.

25. Learned counsel for the respondent nos. 1 to 3 has vehemently argued that the respondent nos. 1 to 3 settled the claim with the Insurance Company in the Appeal filed by them and the settlement has already been given effect to and now the Appellants herein may not be entitled to any further compensation. In the opinion of the Court the above submission does not merit consideration in as much as the present appellants were not party to the settlement arrived at with the Insurance Company and the decision rendered in the FAFO (D) No. 290 of 2014 dated 03.10.2021 shall not bind the present appellants. Ideally both the Appeals ought to have been decided/ settled together. This having not been done the present Appeal has been considered on its own merits. Since this Court has upheld the 10% apportionment of the impugned award dated 17.08.2013 in favour of the Appellant no. 2, the Appellant having already received a sum of Rs.5,28,033/- (being 10% of the award) and Rs.2,62,500/- (on account of the enhancement in the compensation in FAFO (D) No. 290 of 2014), the appellant No. 2 shall stand entitled to Rs. 40,000/- on account of loss of filial consortium only. The appellant no. 1 shall stand entitled to a sum of Rs. 40,000/- on account of loss of filial consortium. All payments to the appellants shall carry an interest of 6% per annum from the date of the claim petition till the date of actual payment/realization. The 5th respondent/ Insurer/ ICICI Lombard General Insurance Company through Branch Manager Parsvanath Plaza Court Road, Saharanpur (Insurer of Truck No. RJ-11GA-2075) shall satisfy the additional compensation granted in this Appeal together with interest, within a period of two months from the date of service of certified copy of this judgment.

26. The Appeal is partly allowed to the extent above. The impugned award shall stand modified accordingly. No order as to costs.

Order Date : 10.7.2023

Ravi Prakash