Delhi High Court

Mona Kumari Dokania vs Surender Kumar Singh & Anr. on 2 July, 2014

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                          Judgment reserved on: 9th May, 2014
%                         Judgment pronounced on: 2nd July, 2014

+     MAC.APP. 699/2007

      MONA KUMARI DOKANIA             ..... Appellant
                  Through: Ms.Radhika Chandrashekhar,
                           Adv.

                          versus

      SURENDER KUMAR SINGH & ANR.       ..... Respondents
                  Through: Mr.Sameer Nandwani, Adv.

+     MAC.APP. 711/2007

      MONA KUMARI DOKANIA (MINOR) ..... Appellant
                  Through: Ms.Radhika Chandrashekhar,
                           Adv.

                          versus

      SURENDER KUMAR SINGH & ANR.       ..... Respondents
                  Through: Mr.Sameer Nandwani, Adv.

+     MAC.APP. 712/2007

      MONA KUMARI DOKANIA             ..... Appellant
                  Through: Ms.Radhika Chandrashekhar,
                           Adv.

                          versus

      SURENDER KUMAR SINGH & ANR.       ..... Respondents
                  Through: Mr.Sameer Nandwani, Adv.

MAC.APP.Nos.699, 711, 712 and 728 of 2007               Page 1 of 16
 +     MAC.APP. 728/2007

      MONA KUMARI DOKANIA             ..... Appellant
                  Through: Ms.Radhika Chandrashekhar,
                           Adv.

                          versus

      SURENDER KUMAR SINGH & ANR.       ..... Respondents
                  Through: Mr.Sameer Nandwani,
                           Advocate

      CORAM:
      HON'BLE MS. JUSTICE DEEPA SHARMA

      JUDGMENT

1. The petitioner in this case is a minor and still waiting for just

and fair compensation for the loss of her family which included her

parents and two minor siblings in an accident. She had filed Suit Nos.

55/2006, 56/2006, 57/2005 and 58/2005 under Section 166 and 140 of

Motor Vehicle Act, 1988 (hereinafter referred to as the Act).

2. All the suits were disposed of by the tribunal vide its common

order dated 3rd November, 2007.

3. Since the appeals are resulted out of a common order of the

Tribunal, the same are disposed of vide this common order.

4. The brief facts in all these suits are that on 07.06.2002 at about

2.25 p.m. the family of the appellant, namely Ramesh Dokania

(father), Mrs.Sunita Devi Dokania (mother), Master Nikunj Dokania

and Master Vivek Dokania (both brothers) were going on a pilgrimage

tour 'Badri Ka Dham' and were travelling along with other passengers

in a Tata Sumo bearing no.UA-07C-9648. The driver of the said Tata

Sumo was driving the vehicle at a very high speed and in a rash and

negligent manner and as a result of which Tata Sumo fell down into

the Yamuna river at Saya Chatti, Barkot, Uttranchal. All the

occupants of the Tata Sumo along with its driver died in the said

accident either on account of injuries sustained or due to drowning.

The dead bodies of Mrs.Sunita Dokania and Master Vivek Dokania

could be recovered, whereas the dead bodies of Mr.Ramesh Dokania

and Master Nikunj Dokania could not be recovered. FIR bearing

no.27/02 under Sections 279/304A IPC was registered at Police

Station Barkot, Uttranchal. The respondent no.1 is the owner of the

vehicle and respondent no.2 is the insurance company. These petitions

had been filed by the minor Ms.Mona through her maternal uncle

Mr.Mukesh Kumar.

5. In the trial, it was deposed that all the occupants of Tata Sumo

including driver had died in the said accident. It is admitted fact that

the said Sumo was duly insured under a valid policy. The learned

Tribunal has reached to the conclusion, on the basis of the evidence on

record that accident was the result of the rash and negligent driving of

the driver of the Tata Sumo which has resulted into the death of all its

occupants including the parents and the brothers of the appellant. The

tribunal has also reached to the conclusion that primarily respondent

no.2 i.e. the insurance company is liable to pay the compensation.

There is no challenge to these findings of the Tribunal. The findings,

therefore, had attained finality.

MAC.APP.699/2007 in Suit no.58/2005

6. In this case the compensation of a sum of Rs.7,09,000/- along

with interest at the rate of 7 % was awarded on account of death of

Sh.Ramesh, the father of the appellant, out of which Rs.6,89,000/- was

awarded towards loss of dependency. It is submitted that it is not just

and fair compensation. It is submitted that the deceased, Mr.Ramesh

Kumar was 32 years of age and that the tribunal has not applied the

correct multiplier. It is argued that as per the findings in the case

(2009) 6 SCC 121 titled as Sarla Verma vs. Delhi Transport

Corporation, the Tribunal ought to have used the multiplier of 16. It

is argued that proper and just compensation under the head of loss of

love, company and affection etc. has not been awarded just by the

tribunal. It is prayed that award be enhanced along with interest at the

rate of 18% per annum.

7. Admittedly, the age of the deceased at the time of accident was

32 years. The multiplier used by the Tribunal was 13. The Tribunal

ought to have used multiplier of 16 in this case as per Sarla Verma's

case (supra). There is no challenge to the multiplicand which the

Tribunal has used. The tribunal has arrived at a multiplicand of

Rs.53,000/-.

The total loss of dependency, therefore, comes to

Rs.53,000/- x 16 = 8,48,000/-

8. The appellant has also prayed a sum of Rs.1,00,000/- towards

loss of love and affection Rs.10,000/-, towards loss of estate.

9. In a recent judgment in case (2013) 9 SCC 54 titled as Rajesh

and others V. Rajbir Singh & Ors, the hon'ble Supreme Court has

dealt with the grant of compensation towards loss love and affection,

funeral charges and non pecuniary damages and has observed as

under:

"...17. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santhosh Devi.. We may therefore, revisit the practice of awarding compensation under conventional heads : loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs.2,500 to Rs.10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case, it was held that compensation for loss of consortium should be in the range of Rs.5,000 to Rs.10,000. In legal parlance, "consortium" is the right of the spouse to the company, care, help , comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non- pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc. , the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement by loss of consortium, the courts have made an

attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.

10. I, thus, award a sum of Rs.1,00,000/- towards loss of love and

affection, and Rs. 10,000/- towards Loss of Estate.

11. I award total compensation as under:

Loss of dependency                             Rs.8,48,000/-

Loss of love and affection                     Rs.1,00,000/-

Loss of Estate                                 Rs. 10,000/-
                                               ___________

Total                                          Rs.9,58,000/-

12. I also enhance the interest from 7% to 9% per annum.

13. No funeral expenses are granted in this case since the dead body

of the deceased could not be recovered and cremated.

14. In view of the above discussion, I award a total compensation

of Rs.9,58,000/- with interest at the rate of 9% per annum from the

date of filing of the petition till its realization.

MAC APP 712/2007 in Suit no.55/05

15. In this case the compensation of a sum of Rs.7,62,000/- along

with interest at the rate of 7 % was awarded out of which

Rs.7,42,000/- was awarded towards loss of dependency. It is submitted

that it is not just and fair compensation. It is submitted that the

deceased, Ms. Sunita Dokania was 28 years of age and that the

tribunal has not applied the correct multiplier. It is argued as per the

findings in Sarla Verma's case (supra), the Tribunal ought to have

used the multiplier of 17. It is argued that proper and just

compensation under the head of loss of love, company and affection

etc. has not been awarded just by the tribunal. It is prayed that award

be enhanced along with interest at the rate of 18% per annum.

16. Admittedly, the age of the deceased at the time of accident was

28 years. The multiplier used by the Tribunal was 14. The Tribunal

ought to have used multiplier of 17 in this case as per Sarla Verma's

case (supra). There is no challenge to the multiplicand which the

Tribunal has used. The tribunal has arrived at a multiplicand of

Rs.53,000/-.

The total loss of dependency comes to Rs.53,000 x 17 = 9,01,000/-

17. The appellant has also prayed a sum of Rs.1,00,000/- towards

loss of love and affection, Rs.10,000/-, towards loss of estate and Rs.

25000/- towards funeral expenses.

18. With respect to the issue of funeral expenses the hon'ble

Supreme Court has dealt with the grant of compensation towards

funeral expenses in Rajesh's case (Supra) and has observed as under:

18. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses'. The "price index", it is a fact has gone up in that regard also. The head "funeral expenses" does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses to award at least an amount of Rs. 25,000/-."

19. In view of the above Rajesh's case (supra) judgment of the

Apex Court, I award a sum of Rs.1,00,000/- towards loss of love and

affection, Rs.10,000/- towards Loss of Estate and Rs.25,000/- towards

funeral expenses.

20. I award total compensation as under:

Loss of dependency                                 Rs.9, 01,000/-
Loss of love and affection                         Rs.1,00,000/-
Loss of Estate                                     Rs. 10,000/-
Funeral expenses                                   Rs. 25,000/-
                                                   __________
Total                                              Rs.10,36,000/-

21. I also enhance the interest from 7% to 9% per annum.

22. In view of the above discussion, I award a total compensation

of Rs.10,36,000/- with interest at the rate of 9% per annum from the

date of filing of the petition till its realization.

MAC APP No.711/2007 in Suit 56/2005

23. The contention of the appellant in this case is that the

compensation of a sum of Rs.1,60,000/-. It is submitted that it is not

just and fair compensation. It is submitted that the deceased, Master

Nikunj Dokania was 2 ½ years of age and that the tribunal has not

applied the correct multiplier. It is argued that proper and just

compensation under the head of loss of love, company and affection

etc. has not been awarded just by the tribunal. It is prayed that award

be enhanced along with interest at the rate of 18% per annum.

24. Admittedly, the age of the deceased at the time of accident was

2 ½ years. The multiplier used by the Tribunal was 15 as per second

schedule provide under section 163A. There is no challenge to the

multiplicand which the Tribunal has used. The tribunal has arrived at

a multiplicand of Rs.15,000/-.

25. It is argued on behalf of the appellant that the Apex court has in

a recent judgment in the case 2009 ACJ 1924 titled as R.K.Malik and

another vs. Kiran Pal and others granted Rs.75,000/- towards non

pecuniary damages. It is submitted that in view of the findings of the

apex court the appellant is entitled to the said sum. It is urged that this

court in the case II (2010) ACC 9 titled as National Insurance

Company Ltd. vs. Farzana and others has awarded a sum of

Rs.2,25,000/- towards loss of dependency and compensation of

Rs.75,000/- for the future prospects. It is now a settled law as laid

down in the judgment of R.K.Malik's case (supra) as well as the case

of Farzana's case (supra) that while calculating the loss of income in

case of a person who has no income prior to the accident, notional

income provided under section 163A read with Second Schedule, item

no.6 which is Rs.15,000/- per month has to be reckoned for calculating

the loss of dependency.

Therefore, loss of dependency comes to

Rs.15000 x 15 = Rs.2,25,000/-.

26. As already discussed above, in Rajesh's case (supra), the

hon'ble Supreme Court has dealt with the grant of compensation

towards loss love and affection and in R.K.Malik's case (Supra) with

the grant of non pecuniary damages.

27. Therefore, I also award Rs.1,00,000/- towards love and affection

and Rs.75,000/- towards non pecuniary damages.

28. I award total compensation as under:

Loss of dependency                                 Rs.2,25,000/-
Loss of love and affection                         Rs.1,00,000/-
Non pecuniary damages                              Rs. 75,000/-

Total                                              Rs 4,00,000/-

29. I also enhance the interest from 7% to 9% per annum.

30. No funeral expenses are granted in this case since the dead body

of the deceased could not be recovered and cremated.

31. In view of the above discussion, I award a total compensation

of Rs.4,00,000/- with interest at the rate of 9% per annum from the

date of filing of the petition till its realization.

MAC.APP. 728/2007 in Suit no.57/2005

32. The contention of the appellant in this case is the compensation

of a sum of Rs.1,90,000/-. It is submitted that it is not just and fair

compensation. It is submitted that the deceased, Master Vivek

Dokania was 9 years of age and that the tribunal has not applied the

correct multiplier. It is argued that proper and just compensation

under the head of loss of love, company and affection etc. has not been

awarded just by the tribunal. It is prayed that award be enhanced

along with interest at the rate of 18% per annum. Admittedly, the age

of the deceased at the time of accident was 9 years. The multiplier

used by the Tribunal was 15 as per second schedule provide under

section 163A. There is no challenge to the multiplicand which the

Tribunal has used.

33. As argued and discussed above, it is now a settled law as laid

down in the judgment of R.K.Malik (supra) as well as the case of

Farzana (supra) that while calculating the loss of income in case of a

person who has no income prior to the accident, notional income

provided under section 163A read with Second Schedule, item no.6

which is Rs.15,000/- per month has to be reckoned for calculating the

loss of dependency.

Therefore, loss of dependency comes to

Rs.15000 x 15 = Rs.2,25,000/-.

34. As already discussed above, in Rajesh's case (supra), the

hon'ble Supreme Court has dealt with the grant of compensation

towards loss love and affection, funeral charges and in R.K.Malik's

case (Supra) the Hon'ble Supreme Court has dealt with grant of

compensation towards non pecuniary damages.

35. Therefore, I also award Rs.1,00,000/- towards love and affection

Rs.25,000/- towards funeral expenses and Rs.75,000/- towards non

pecuniary damages.

36. I award total compensation as under:

Loss of dependency                             Rs.2,25,000/-
Loss of love and affection                     Rs.1,00,000/-
Loss of pecuniary loss                         Rs. 75,000/-
Funeral expenses                               Rs. 25,000/-
Total                                          Rs. 4,25,000/-

37. I also enhance the interest from 7% to 9% per annum.

38. In view of the above discussion, I award a total compensation

of Rs.4,25,000/- with interest at the rate of 9% per annum from the

date of filing the petition till its realization.

RELIEF

MAC.APP.699/2007 in Suit no.58/2005

39. Compensation of Rs.9,58,000/- with interest at the rate of 9%

per annum from the date of filing of the petition till its realization.

MAC APP 712/2007 in Suit no.55/05

40. Compensation of Rs.10,36,000/- with interest at the rate of 9%

per annum from the date of filing of the petition till its realization.

MAC APP No.711/2007 in Suit 56/2005