Andhra Pradesh High Court - Amravati

The Bajaj Allianz General ... vs Ragini Devi, on 8 July, 2021

           HON'BLE SRI JUSTICE JOYMALYA BAGCHI

                                       AND

             HON'BLE SRI JUSTICE K.SURESH REDDY

                       M.A.C.M.A.No. 332 OF 2021
                  (Taken up through video conferencing)

JUDGMENT: (Per Hon'ble Sri Justice Joymalya Bagchi)

     On the consent of the parties, the appeal is taken up for

hearing.

2.   The appellant insurance company has assailed the award

dated 30-09-2020 passed by the Chairman, Motor Accident Claims

Tribunal - cum - VI Additional District Judge, Visakhapatnam (for

short, 'the Tribunal'), in M.V.O.P.No. 280 of 2016, whereby the

claim petition was allowed in the following terms:

     "1.      that   the   petition   is   allowed   awarding   compensation    of
     Rs.71,07,840/- with interest @ 9% per annum from the date of filing
     petition till the date of deposit and 6% per annum from the date of
     deposit till the date of realization against R1 to R3 with joint and several
     liability.
     The awarded amount shall be apportioned among petitioners 1 to 3 and
     Respondents 4 and 5 (parents of the deceased) as follows:

2. that the 1st petitioner is awarded a sum of Rs.21,07,840/- and she is permitted to withdraw 50% of the amount and the remaining 50% shall be kept in Fixed Deposit for three years in any nationalized bank.

3. that the 2nd petitioner is awarded an amount of Rs.20,00,000/- and he is permitted to withdraw 1/4th of the amount if he already attained majority and the remaining 75% shall be kept in Fixed Deposit for three years in any nationalized bank.

4. that the 3rd petitioner is awarded an amount of Rs.20,00,000/- and the entire amount shall be kept in Fixed Deposit till he attains majority and on attaining majority he is permitted to withdraw 1/4th of the amount and the remaining 75% shall be kept in Fixed Deposit for three years thereafter in any nationalized bank.

5. that the 4th respondent (mother of the deceased) is awarded an amount of Rs.6,00,000/- and she is permitted to withdraw 50% of the amount and the remaining 50% shall be kept in Fixed Deposit for two years in any nationalized bank.

6. that the 5th respondent (father of the deceased) is awarded an amount of Rs.4,00,000/- and he is permitted to withdraw 50% of the amount and the remaining 50% shall be kept in Fixed Deposit for two years in any nationalized bank.

7. that the Respondents 1 to 3 are directed to deposit the entire compensation amount within two months from the date of this judgment.

8. that the respondents 1 to 3 do also pay to the petitioners a sum of Rs.1,24,493/- (Rupees One lakh twenty four thousand four hundred and ninety three only) towards proportionate costs of the petition.

9. Advocate fee is fixed at Rs.50,000/-."

3. The factual matrix giving raise to appeal is to the effect that

the deceased was working as a Petty Officer Cook in Naval

Dockyard in Logistics Department, Visakhapatnam, and was

receiving a salary of Rs.33,000/- per month. On 12-04-2015

around 13.35 hours, the deceased was proceeding on his

motorcycle bearing registration No. AP 31 CL 5272 from Yarada

junction towards Chinthalalova. En route, respondent No. 4 driving

an auto bearing registration No. AP 31 TB 8237 in a rash and

negligent manner dashed against the deceased. As a result, the

deceased fell down and sustained severe injuries. He was shifted

to INS Kalyani Hospital, Visakhapatnam, where he died on the

same day at 14.55 hours while undergoing treatment. Postmortem

was also conducted in the said hospital. A criminal case, being

crime No. 69 of 2015 under Sections 304-A and 279 IPC, was also

registered against the driver of the offending vehicle. Owing to the

sudden death of the deceased, respondent Nos. 1 to 3, being the

wife and the minor sons respectively of the deceased, filed claim

petition before the Tribunal seeking compensation to the tune of

Rs.75,00,000/-. In the course of the appellant/respondent filed his

counter denying the age, income and occupation of the deceased

and it was also denied that the deceased had died due to rash and

negligent driving. However, the appellant admitted that the

offending vehicle was covered under insurance policy issued by it

at the material point of time. The parents of the deceased were

also added as respondent Nos. 4 and 5 to the said petition. In the

course of the hearing, the claimants led evidence by examining

P.Ws.1 to 3 and also exhibited documents being Exs.A1 to A9

while the respondents examined R.W.1 (driver of the offending

vehicle) and exhibited documents being Exs.B1 to B3. In

conclusion, the Tribunal disposed of the application, as aforesaid.

4. Mr. Naresh Byrapaneni, learned senior counsel appearing for

the appellant, submits that the Tribunal had failed to calculate the

compensation as per the ratio in National Insurance Company

Limited Vs. Pranay Sethi1. In elaborating his submission, learned

senior counsel contended that salary of the deceased was not

correctly calculated by deducting tax and the finding with regard to

the future prospects of the deceased was also contrary to the

evidence on record. It is further contended that loss of consortium

awarded at the rate of Rs.1,00,000/- was contrary to law and that

loss of love and affection for petitioner Nos. 2 and 3 could not have

been awarded in law. Funeral expenses were also assessed at a

(2017) 16 SCC 680

higher rate. Learned senior counsel further contends that the rate

of interest awarded is on the higher side. Learned senior counsel

further submits that there was delay in preparing the award as

deficit Court fee had not been paid by the respondents-claimants

and thus, interest may be charged for that period.

5. In response thereto, learned counsel appearing for the

respondents-claimants submits that the salary as well as the future

prospects were correctly assessed by the Tribunal taking into

consideration the evidence of P.W.2, an officer attached to the

Naval Dockyard where the deceased was an employee. She

further submits that the amounts awarded on the score of loss of

consortium as well as love and affection and funeral expenses

were in accordance with law in view of the law declared in Magma

General Insurance Company Limited Vs. Nanu Ram Alias

Chuhru Ram and others2 and New India Assurance Company

Limited Vs. Somwati and others3.

6. We have considered the rival submissions in the light of the

materials on record. None of the parties dispute that the deceased

had died in a road accident due to the rash and negligent driving of

the offending vehicle bearing registration No. AP 31 TB 8237 by

respondent No. 4 and that the vehicle was covered under a valid

insurance policy issued by the appellant company at the material

point of time. The appellant company has disputed the quantum of

compensation on the score of incorrect assessment of salary and

(2018) 18 SCC 130

(2020) 9 SCC 644

future prospects as well as excessive amounts been awarded on

the score of loss of consortium, love and affection and funeral

expenses.

7. Let us consider the issues raised by the appellant company in

seriatim.

(a) With regard to the salary of the deceased and non-

deduction of income tax therefrom, we find that the Tribunal had

correctly analyzed the evidence of P.W.2 who deposed that the

deceased used to earn a sum of Rs.33,989/- per month and in the

light of Ex.X2 i.e. salary certificate which shows that there was no

tax deduction from his income, there was no question of deduction

on account of income tax from his income. Hence, we are of the

opinion that the salary assessed by the Tribunal does not call for

interference.

(b) On the score of future prospects also, evidence is

forthcoming from the mouth of P.W.2 that there was a possibility of

further extension of service for another ten years and the deceased

would have attained the post of Honorary LT if his service is

extended up to 35 years depending on eligibility. On the basis of

such evidence, the Tribunal came to a finding that there was scope

for further career growth and more earnings upon future promotion.

Hence, we are unable to accede to the submission of learned

senior counsel that there was no scope for further growth in the

career of the deceased who was only 40 years at the time of the

accident. Thus, the amount awarded on the score of future

prospects does not also call for any adjustment.

each on the scores of loss of consortium and loss of love and

affection for petitioners 2 and 3 i.e. minor sons of the deceased, it

is argued that once amount is awarded on score of consortium, no

amount could be awarded for loss of love and affection. In this

regard, learned senior counsel relied on the Constitution Bench in

the case of Pranay Sethi (1st supra). He further submitted that the

loss of consortium fixed at Rs.1,00,000/- is also not in consonance

with the direction in Pranay Sethi (1st supra). In Pranay Sethi (1st

supra), a Constitution Bench of the Apex Court inter alia held that in

death cases, compensation would awarded only under three

conventional heads i.e. loss of estate, loss of consortium and

funeral expenses. In paragraph 61 of the said report, it further

proceeded to hold that the reasonable figures on the 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. Pranay Sethi (1st supra) also clarified that

compensation under the aforesaid conventional heads included any

compensation "towards loss of love and affection" and therefore, no

compensation on such head may be granted. Relying on the

aforesaid ratio, learned senior counsel for the insurance company

argued that the compensations awarded on the heads of loss of

consortium, loss of love and affection for the petitioners and funeral

charges were contrary to law. On the other hand, learned counsel

for the respondents-claimants submits that the directions in Pranay

Sethi (1st supra) were clarified by subsequent Benches of the Apex

Court in the cases of Magma General Insurance Company

Limited (2nd supra) and Somwati and others (3rd supra). We have

considered the ratios in the aforesaid subsequent decisions

explaining the directives in Pranay Sethi (1st supra). In Magma

General Insurance Company Limited (2nd supra), the Apex Court

explained the concept of consortium and held in paragraph Nos. 21

and 22 as follows:

"21. A Constitution Bench of this Court in National Insurance Company Limited Vs. Pranay Sethi 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.

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".

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.

22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world- over have recognised 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."

Subsequently, the view was accepted and further elucidated by a

three judge Bench of the Supreme Court in United India

Insurance Company Limited Vs. Satinder Kaur4 and it was held

that in Magma General Insurance Company Limited (2nd supra),

the Court gave a comprehensive interpretation to consortium to

include spousal consortium, parental consortium as well as filial

consortium. Similar view was adopted by the Court in Somwati

and others (3rd supra). On analysis of the aforesaid decisions, we

are of the view the award for loss of consortium is not restricted of

Rs.40,000/- only for spousal consortium. In addition thereto, similar

amounts of consortium may be extended under the heads of filial

consortium i.e. consortium for the parents as well as parental

consortium i.e. consortium for the minor children of the deceased.

It is apposite to note the deceased in the present case had been

survived not only by his wife but his parents as well as two minor

children. Hence, in the light of the aforesaid ratios of the Apex

Court, the claimants are entitled to loss of consortium to the

following extent: (a) loss of spousal consortium i.e. Rs.40,000/-, (b)

loss of parental consortium i.e. Rs.40,000/- x 2 = Rs.80,000/- and

Rs.2,00,000/- in all. Hence, the grant of Rs.1,00,000/- each on the

grounds of loss of consortium and loss of love and affection for

petitioner Nos. 2 and 3 at the rate of Rs.50,000/- each by the

(2021) 11 SCC 780

Tribunal may be modified as Rs.40,000/- as loss of spousal

consortium, Rs.40,000/- each for both the parents i.e. Rs.80,000/-in

all as filial consortium and parental consortium for the minor

children at the rate of Rs.40,000/- each for two children i.e.

Rs.80,000/- in all. Funeral expenses awarded at the rate of

Rs.25,000/- may however be reduced to Rs.15,000/-. To that

extent, the award may be accordingly modified.

8. In the light of the aforesaid discussion, we propose to modify

the compensations awarded in the following manner by setting out

a comparative chart:

Compensation awarded as per the Modified compensation impugned judgment Loss of consortium =Rs.1,00,000/- Loss of consortium:

                                         (a) Spousal consortium        =Rs.40,000/-
                                         (b) Filial consortium
                                            (2xRs.40,000/-)            =Rs.80,000/-
                                         (c) Parental consortium
                                           (2xRs.40,000/-)             =Rs.80,000/-
                                                                       ---------------
                                                                   =Rs.2,00,000/-
                                                                       ---------------

Loss of love and affection for Loss of love and affection for petitioners petitioners 2 and 3 @ Rs.50,000/- 2 and 3 = Nil each =Rs.1,00,000/-

Funeral expenses =Rs.25,000/- Funeral expenses =Rs.15,000/-