Bombay High Court
Smt. Jyoti Wd/O Ishwarda Sawarkar ... vs Ramesh S/O Harichandra Khedkar ... on 21 August, 2021
Bench: Pushpa V. Ganediwala
207FA 863.2018.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 863 OF 2018
1. Smt. Jyoti wd/o Ishwarda Sawarkar,
age 36 years, Occ. Household.
2. Ku. Unnati d/o Ishwardas Sawarkar,
age Major, Occ. Education.
3. Ku. Priya d/o Ishwardas Sawarkar,
age Major, Occ. Education.
4. Smt. Umabai wd/o Devidas Sawarkar,
age 70 years, Occ. Household.
All are R/o Shrinagar, City Borda, Warora,
Tah. Warora, District Chandrapur.
...APPELLANTS
Versus
1. Ramesh s/o Harichandra Khedkar,
aged about major, Occupation Business,
R/o Plot No.4, First Bus Stop of Gopal Nagar,
Nagpur, Tah. & District Nagpur.
2. The New India Assurance Co. Ltd.
Through its Branch Manager,
New India Assurance Co. Ltd.
Kasturba Road, Chandrapur,
Tahsil and District Chandrapur.
...RESPONDENTS
Ms. Niharika Chandak, Advocate h/f Shri Rohit Joshi, Advocate for
the appellants.
Shri S.N. Dongre, Advocate for respondent No.1.
Shri A.W. Paunikar, Advocate for respondent No.2.
.....
CORAM : PUSHPA V. GANEDIWALA, J.
DATED : AUGUST 21, 2021.
ORAL JUDGMENT :
This is the claimants' appeal against the judgment
and award dated 21/09/2017 passed by the Member, Motor
Accident Claims Tribunal, Chandrapur in Motor Accident Claim
Petition No. 99/2011.
2. The issue involved in this Appeal is only with
regard to enhancement of compensation in accordance with
the parameters laid down by the Hon'ble Supreme Court in the
case of National Insurance Company Limited Vs. Pranay Sethi
And Others, (2017) 16 SCC 680, so also in the case of Magma
General Insurance Company Limited Vs. Nanu Ram Alias
Chuhru Ram And Others, (2018) 18 SCC 130. Appellant No.1
is the widow, appellant Nos.2 and 3 are the daughters and
appellant No.4 is the mother of the deceased Ishwardas
Devidas Sawarkar, who, at the relevant time, was aged around
46 years.
3. The short point arises for consideration of this
Court is whether the appellants/ claimants are entitled for
enhancement in compensation ?
4. Shortly stated, on 04/05/2011, the deceased was
coming by auto-rickshaw along with other passengers on
Warora Nagpur highway. At the same time, i.e., around 11:00
am, the offending pickup van bearing No.MH-31-CB-6955 was
coming from Nagpur towards Warora on the same road behind
the auto-rickshaw.
5. It is alleged that the driver of the offending vehicle
was driving the vehicle in a rash and negligent manner and
gave a violent dash to the auto-rickshaw as a result of which
the deceased along with the other passengers were thrown out
of the auto-rickshaw and received fatal injuries. That
thereafter, the deceased was admitted to the Rural Hospital,
where he died. The aforesaid offending vehicle was owned by
respondent No.1 and was insured by respondent No.2. The
legal representatives of the deceased filed Claim Petition under
Section 166 of the Motor Vehicles Act, 1988 ("MV Act") thereby
claimed Rs.19,79,173/- towards compensation. It is stated that
the deceased was a permanent employee of Videocon company
at Warora and was earning Rs.13,883/- per month at the
relevant time.
6. In response, respondent No.2 - Insurance Company,
in its written statement (Exh.17) denied the contents in the
petition and raised statutory defences as available to it under
Section 149(2) of the MV Act. Respondent No.1 - owner of the
vehicle, in his separate written statement, also denied the
contents in the petition and his liability to pay compensation.
7. The Tribunal framed necessary issues and recorded
evidence as adduced by the parties. The claimants examined
claimant No.1 Smt. Jyoti Sawarkar and one Bandu Katore - an
employee of the Videocon company, on the point of the income
of the deceased. While respondent No.2 - Insurance Company
examined the driver of pickup van below Exh.62 and one
Bharat - Assistant Manager of the Insurance Company below
Wxh.65.
8. The Tribunal, on the basis of oral and documentary
evidence on record, partly allowed the claim of the claimants,
thereby granted compensation of Rs.15,46,000/- with interest
@ 6% per annum from the date of petition, i.e., 29/06/2011
and directed the respondents to pay the said amount jointly
and severally to the claimants within a period of 60 days from
the date of passing of that order. The said compensation was
bifurcated by the Tribunal as under :
Sr. No. Particulars Amount
1 Monthly income of the 13,000/-
deceased (13,000/- X 12 = 1,56,000/-)
(Yearly income)
2 1/4th deduction towards 39,000/-
personal expenses
1,56,000/- - 39,000/- = 1,17,000/-
3 Multiplier of 13 1,17,000/- X 13 = 15,21,000/-
4 Funeral expenses 25,000/-
5 Love and affection 50,000/-
15,21,000/- + 25,000/- + 50,000/- =
15,96,000/-
Claimants have already 15,96,000/- - 50,000/- = 15,46,000/-
received Rs.50,000/-
towards no fault liability
Total 15,46,000/-
This judgment is impugned in this Appeal.
9. Ms. Chandak, learned counsel h/f Shri Joshi,
learned counsel for the appellants/ claimants, relied on the
judgments of the Hon'ble Supreme Court in the case of Pranay
Sethi (supra) so also in the case of Magma General Insurance
Company Limited Vs. Nanu Ram (supra) and submits that the
appellants are entitled to receive enhanced compensation
towards love and affection, funeral expenses and loss of estate.
10. The constitution Bench of the Hon'ble Supreme
Court in the case of Pranay Sethi (supra) concluded that in
case the deceased was self-employed or on a fixed salary, an
addition of 40% of the established income should be the
warrant where the deceased was between the age of 40 to 50
years. It is further 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.
11. With regard to compensation towards loss of
consortium, the Hon'ble Supreme Court in the case of Magma
General Insurance Company Limited Vs. Nanu Ram (supra) in
para 21, 22 and 23 has held as under :
"21. A constitution Bench of this Court in National
Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC
680 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.
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.
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.
23. The Motor Vehicles Act is a beneficial
legislation aimed at providing relief to the victims
or their families, in cases of genuine claims. In case
where a parent has lost their minor child, or
unmarried son or daughter, the parents are entitled
to be awarded loss of consortium under the head of
filial consortium. Parental consortium is awarded to
children who lose their parents in motor vehicle
accidents under the Act. XXXX"
The Hon'ble Supreme Court in this case has granted
Rs.40,000/- each to the father and sister of the deceased
towards loss of filial consortium.
12. Considering the judgments cited as above, which
are holding the field, the appellants/ claimants would be
entitled to compensation in accordance with the ratio laid
down in the said judgments.
13. In this view of the matter, the Appeal is partly
allowed. The impugned judgment and award dated
21/09/2017 passed by the Member, Motor Accident Claims
Tribunal, Chandrapur in Motor Accident Claim Petition No.
99/2011 stands modified as under :
Sr. No. Particulars Amount
1 Monthly income of the 13,000/-
deceased (13,000/- X 12 = 1,56,000/-)
(Yearly income)
2 25% towards future 39,000/-
prospects
(1,56,000/- + 39,000/- = 1,95,000/-)
3 1/4th deduction towards 48,750/-
personal expenses
1,95,000/- - 48,750/- = 1,46,250/-
4 Multiplier of 13 1,46,250/- X 13 = 19,01,250/-
5 Funeral expenses 15,000/-
6 Loss of consortium 1,60,000/-
7 Loss of estate 15,000/-
19,01,250/- + 15,000/- + 1,60,000/-
+ 15,000/- = 20,91,250/-
Total compensation 20,91,250/-
entitled
Total compensation 15,46,000/-
awarded
Enhancement claimed 20,91,250/- - 15,46,000/- =
5,45,250/-
Total 5,45,250/-
14. The respondents are directed to deposit the
enhanced amount of compensation, i.e., Rs.5,45,250/- with
interest @ 6% per annum from the date of application till its
realisation with the Registry of this Court within a period of 60
days. Thereafter, the appellants/ claimants shall be entitled to
withdraw the same.
15. The Appeal stands disposed of.
JUDGE
******
Sumit
