Gujarat High Court
United India Insurance Company ... vs Prabhaben W/O Kamleshbhai ... on 25 March, 2021
Bench: R.M.Chhaya
C/FA/6150/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 6150 of 2019
With
R/FIRST APPEAL NO. 12 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/
and
HONOURABLE MR. JUSTICE R.P.DHOLARIA sd/
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the NO
fair copy of the judgment ?
4 Whether this case involves a substantial NO
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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UNITED INDIA INSURANCE COMPANY LTD
Versus
PRABHABEN W/O KAMLESHBHAI SOLANKI
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Appearance:
MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
MR AMAR D MITHANI(484) for the Defendant(s) No. 1,2,3
NOTICE NOT RECD BACK(3) for the Defendant(s) No. 5
NOTICE UNSERVED(8) for the Defendant(s) No. 4
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CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE R.P.DHOLARIA
Date : 25/03/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/6150/2019 JUDGMENT
1. Feeling aggrieved and dissatisfied by the common
judgment and award dated 02.05.2019, passed by
the Motor Accident Claims Tribunal (Main),
Junagadh, in MACP Nos. 103 and 104 of 2014, the
insurance company has preferred these appeals
under Section 173 of the Motor Vehicles Act,
1988 (hereinafter referred to as the "Act").
2. Same set of evidence were produced before the
Tribunal in both the claim petitions and both
the claim petitions arise from the same accident
and hence, both the appeals were directed to be
heard together.
3. The following facts emerge from the record of
these appeals -
3.1 That both the deceased were sports person
and had gone to Thiruvananthapuram in
Kerala as competitors from Saurashtra
University to attend InterUniversity
Cycling Competition of national level. The
record further indicates that on
20.01.2013, after having their dinner, the
competitors were returning with coach from
Kariyavattam and walking on the road from
Kazzakuttam Police Station. The record
show that at that time, a Maruti Zen car
bearing registration No. AP28AA2312
being driven in rash and negligent manner,
overrun the competitors walking on the
road. It further appears from the record
C/FA/6150/2019 JUDGMENT
that five students sustained serious
injuries out of which one Vijay Khalel died
on the spot while Pratikraj Solanki
sustained serious injuries and other bodily
injuries and were immediately taken to
Medical College, Thiruvananthapuram. The
said student was operated, however, the
injuries sustained were so serious that
ultimately, he succumbed to the same during
treatment on 26.01.2013. A complaint came
to be lodged with Kazhakuttam Police
Station being C.R. No. I81/2013. The
mother and two minor unmarried sisters of
Pratikraj Solanki filed MACP No. 103 of
2014 and claimed compensation of Rs.
40,00,000/ and similarly, the parents and
sister and brother of deceased Vijay
Naranbhai Khalel preferred MACP No. 104 of
2014 and claimed compensation of Rs.
40,00,000/ before the Motor Accident
Claims Tribunal, at Junagadh. The appeal
being First Appeal No. 12/20 arise out of
MACP No. 104/14 and First Appeal No.
6150/19 arise out of MACP No. 103/14.
3.2 In MACP No. 103/14, it was the case of the
original claimants that the deceased
Pratikraj Solanki was 20 years old and
sportsman and had applied for various jobs
and was pursuing his B.Com studies in
fourth Semester in Commerce & Law College,
C/FA/6150/2019 JUDGMENT
Junagadh. It is also the case of the
original claimants that he was working in
Sakkarbaug Zoo and was earning Rs. 4,000/
p.m. In MACP No. 104/14, the original
claimants contended that deceased Vijay
Naranbhai was aged 18 years and was earning
Rs. 4,000/ p.m.
In MACP No. 103/14, Prabhaben, mother of
the deceased was examined at exhibit 20 and
in MACP No. 104/14, Naranbhai, father of
the deceased was examined at exhibit 63.
The claimants also relied upon documentary
evidence in both the claim petitions such
as School Leaving Certificate of deceased
Pratikraj at exhibit 23, death certificate
at exhibit 24, ration card in the name of
Prabhaben Solanki at exhibit 25, SSC
marksheet of deceased Pratikraj at exhibit
26, SSC Certificate of Pratikraj at exhibit
27, HSC Marksheet of Pratikraj at exhibit
28, HSC Certificate of Pratikraj at exhibit
29, Marksheet of B.Com, SemI and II at
exhibit 30 and 31, Icard of Pratikraj at
exhibit 32, Icard of Pratikraj for
physical education at exhibit 33, FIR at
exhibit 34, copy of the C.R. No. 81/13 of
Kazhakuttam Khalel at exhibits 51 and 52,
HSC Certificate of Vijay at Exhibit 53,
Marksheet of B.Com SemI of vijay N. Khalel
at exhibit 54, ICard of Vijay at exhibit
C/FA/6150/2019 JUDGMENT
55, Postmortem Certificate of Vijay at
Exhibit 56, Embalming Certificate of Vijay
at Exhibit 57, Letter from the Registrar
of University of Kerala regarding releasing
of Embalmed body of vijay at exhibit 58,
Certificate issued by the Kazhakuttam
Police station for transporting the body of
Vijay at exhibit 59, Certificate of office
of the Police Surgeon and Department of
Forensic Medicine regarding receipt of the
body of Vijay for postmortem examination at
exhibit 60, certificate of funeral rites of
Vijay Naranbhai at Exhibit 61 and various
documents produced related to efficiency of
deceased Vijay Naran and newspaper cuttings
at exhibit 62.
3.3 The Tribunal after appreciating the
evidence on record, came to the conclusion
that the accident occurred because of sole
negligence of the driver of the care. The
Tribunal also appreciated the other
evidence such as chargesheet as well as PM
note on record and came to such conclusion.
After appreciating the evidence on record,
the Tribunal, in MACP No. 103/14, came to
the conclusion that that the age of the
deceased on the date of the accident was 20
years and determined the income of the
deceased based upon the minimum wage rates
prevailing on the date of the accident at
C/FA/6150/2019 JUDGMENT
Rs. 4053/ per month and following the
ratio laid down by the Apex Court in the
case of Sarla Verma vs. Delhi Road
Transport Corporation reported in (2009) 6
SCC 121 and in the case of National
Insurance Company Ltd. Vs. Pranay Sethi,
reported in 2017 (16) SCC 680, awarded
prospective income of 40% and deducted 1/2
towards personal expenses as the deceased
was unmarried and applied multiplier of 18
and awarded a sum of Rs. 6,12,900/ towards
loss of dependency. Following the ratio
laid down by the Apex Court in the case of
Magma General Insurance Co. Ltd. Vs. Nanu
Ram Alias Churu and Ors., reported in
2018(18) SCC 130 the Tribunal awarded Rs.
1,20,000/ towards filial compensation.
Over and above the same, the Tribunal also
awarded a sum of Rs. 1,00,000/ under the
head of loss of amenities of life and
awarded additional compensation of Rs.
15,000/ towards funeral expenses, Rs.
15,000/ towards loss of estate, Rs.
10,000/ towards pain, shock and suffering
as he had to undergo medical treatment for
six days, Rs. 20,000/ towards
transportation and thus, awarded a total
compensation of Rs. 8,92,900/ with
interest at the rate of 8% from the date of
filing of the claim petition till its
realisation.
C/FA/6150/2019 JUDGMENT
3.4 Similarly, after appreciating the evidence
on record in MACP No. 104/14, the Tribunal
came to the conclusion that the deceased
Vijay Naranbhai Khalel who died on the spot
was 18 years old. Similarly, applying th
minimum wage standard prevailing on the
date of accident, the Tribunal determined
the income of the deceased at Rs. 4053/
and following the ratio laid down by the
Apex Court in the case of Sarla Varma
(supra) and Pranay Sethi (supra), granted
prospective income of 40% and deducted 1/2
of the income towards personal expenses and
applying multiplier of 18, awarded a sum of
Rs.6,12,900/ under the head of Loss of
Dependency. Over and above the same, the
Tribunal awarded a sum of Rs. 1,60,000/
towards filial consortium of the claimants
being parents and two unmarried sisters.
The Tribunal also awarded a sum of Rs.
1,00,000/ as compensation under the head
of Loss of Amenities of life and further
awarded a sum of Rs. 15,000/ towards
funeral expenses, Rs. 15,000/ towards loss
of estate and Rs. 20,000/ towards
transportation and thus awarded a total
compensation of Rs. 9,22,900/ with
interest at the rate of 8% from the date of
filing of the claim petition till its
realisation.
C/FA/6150/2019 JUDGMENT
The Tribunal has thus, partly allowed the
claim petitions. Being aggrieved by the
common judgment and award, the Insurance
Company has preferred both these appeals
restricted to Rs. 2,00,000/.
4. Heard Mr. Maulik J. Shelat, learned advocate for
the appellant insurance company in both the
appeals and Mr.Amar D. Mithani, learned advocate
for the original claimants in both the appeals.
We have perused the relevant evidence on record,
copies of which were provided by the learned
advocate appearing for the parties.
5. Mr. Maulik J. Shelat, learned advocate appearing
for the appellant contended that the Tribunal
has committed an error in awarding Rs.
1,00,000/ as loss of amenities of life. Mr.
Shelat contended that in case of fatal accident,
no compensation can be awarded under the head of
loss of amenities to life. It was also further
contended that the Tribunal has materially erred
in granted filial compensation to all the
claimants. According to Mr. Shelat, learned
advocate for the appellant, even as per the
judgment of the Apex Court in the case of Pranay
Sethi (Supra) only Rs.40,000/ can be awarded
under such head. On the aforesaid two grounds,
Mr. Shelat contended that the common judgement
and award deserves to be modified by allowing
these appeals as prayed for.
C/FA/6150/2019 JUDGMENT
6. Per contra, Mr. Amar Mithani, learned advocate
appearing for the original claimants contended
that the Tribunal has rightly appreciated the
ratio laid down by the Apex Court in the case of
Magma General Insurance Co. Ltd. (supra) and has
awarded appropriate compensation under the head
of filial consortium. Mr. Mithani contended
that in both the cases, even unmarried sisters
would be entitled for filial consortium as they
have lost their only brother and the parents
have lost their only son that too at the tender
age of 18 and 20 years respectively. Mr.Mithani,
learned advocate appearing for the original
claimants further contended that the Tribunal
has awarded just compensation and the
compensation of Rs. 1,00,000/ awarded as loss
of amenities of life is also proper and no
modification is required in the impugned
judgment and award. Mr. Mithani contended that
both the appeals being meritless, deserves to be
dismissed.
7. No other or further submissions have been made
by the learned advocates appearing for the
respective parties.
8. Have gone through the relevant evidence on
record. Considering the submissions made, it is
a matter of fact that both the claim petitions
relate to fatal accident. In MACP No. 103/14,
on facts, the only basic difference is that the
C/FA/6150/2019 JUDGMENT
deceased had undertook treatment for six days
and ultimately succumbed to the injuries
sustained because of the accident. Loss of
Amenities of life is considered as a head for
compensation under injury cases. In fatal
cases, such head is never considered. The same
is relatable to permanent disability incurred
because of the accident, which precludes an
injured to enjoy amenities of life. Whereas
both these appeals relate to fatal accident and
therefore, no compensation can be granted under
the head of Loss of Amenities of life. Even
considering the ratio laid down by the Apex
Court in the case of Pranay Sethi (supra), such
compensation under the head of Loss of Amenities
of life would not come under any conventional
head. The Tribunal has therefore committed an
error in granting Rs. 1,00,000/ in both the
claim petitions under the head of loss of
amenities of life.
9. The second limb of argument advanced by the
appellant as regards filial consortium is
covered by the judgment of the Apex Court in the
case of Magma General Insurance Co. Ltd.
(supra), wherein the Hon'ble Apex Court has
observed thus
21. A Constitution Bench of this Court in
Pranay Sethi (supra) 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
C/FA/6150/2019 JUDGMENT
'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 worldover 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.
C/FA/6150/2019 JUDGMENT
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. A few High Courts have awarded
compensation on this count. However,
there was no clarity with respect to the
principles on which compensation could be
awarded on loss of Filial Consortium.
24. 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). In the present case, we
deem it appropriate to award the
father and the sister of the deceased,
an amount of Rs. 40,000 each for loss
of Filial Consortium."
10. The Hon'ble Apex Court has taken similar
view in the case of United India Insurance Co.
Ltd vs. Satinder Kaur @ Satwinder Kaur & Ors
rendered in Civil Appeal No. 2705 of 2020.
11. In case on hand, in MACP No. 104/14, the
original claimants are the parents and two
sisters (?)and in claim petition No. 103/14, the
original claimants are mother and two unmarried
sisters. Following the ratio laid down by the
Apex Court in the binding decision of the Apex
Court, the mother as well as the parents will be
entitled to filial compensation as awarded by
C/FA/6150/2019 JUDGMENT
the Tribunal. In both the claim petitions,
however, the sisters would not be entitled to
filial compensation.
12. In MACP No. 103/14, upon reappreciation of
the evidence on record, it clearly appears that
the deceased had to undergo major surgery of
brain and he undertook treatment in the hospital
for six days. Hence, in opinion of this Court,
the Tribunal has awarded lesser amount as
compensation under the head of pain, shock and
suffering. The same deserves to be enhanced
from Rs. 10,000/ to Rs. 50,000/.
13. Having come to the aforesaid conclusion
therefore, in First Appeal No. 12/20 relating to
MACP No. 104/14, the claimants would be entitled
to compensation as under
Loss of Dependency Rs.6,12,900/
Filial consortium qua
respondents No.1 and 2 Rs. 80,000/
Funeral Expenses Rs. 15,000/
Loss of Estate Rs. 15,000/
Transportation Rs. 20,000/
Total Compensation Rs.7,42,900/
==============
14. Similarly in the First Appeal No. 6150/19,
relating to MACP No. 103/14, the claimants would
be entitled to compensation as under
Loss of Dependency Rs.6,12,900/
Filial consortium qua
respondent No.1 Rs. 50,000/
Funeral Expenses Rs. 15,000/
Pain, shock and
C/FA/6150/2019 JUDGMENT
suffering Rs. 40,000/
Loss of Estate Rs. 15,000/
Transportation Rs. 20,000/
Total Compensation Rs.7,52,900/
==============
15. Thus, the respondentsoriginal claimants of
First Appeal No.6150/19 arising out of MACP No.
103/14, would be entitled to total compensation
of Rs.7,52,900/. As the Tribunal has awarded
Rs. 8,92,900/, the appellantinsurance company
would be entitled to refund of Rs.1,40,000/.
Similarly, the respondentsoriginal claimants of
First Appeal No. 12 of 2020 arising out of MACP
No. 104/14, would be entitled to total
compensation of Rs. 7,42,900/. As the Tribunal
has awarded Rs. 9,22,900/, the appellant
insurance company would be entitled to refund of
Rs.1,80,000/.The impugned award stands modified
to the aforesaid extent and the appeal stands
allowed partly. The Tribunal shall refund the
aforesaid amount with proportionate interest and
cost. Rest of the award remains unaltered.
However, there shall be no order as to costs.
sd/
(R.M.CHHAYA, J)
sd/
(R.P.DHOLARIA, J)
BIJOY B. PILLAI
