Gujarat High Court
Hirbai Keshavji Maheshwari (L.H. ... vs Bajubhai Narshibhai Thakore on 22 November, 2021
Bench: R.M.Chhaya
C/FA/2831/2018 JUDGMENT DATED: 22/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2831 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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HIRBAI KESHAVJI MAHESHWARI (L.H. AND REPRESENTATIVES OF
DECD. KESHAVJI BALABHAI MAHESHWARI) & 4 other(s)
Versus
BAJUBHAI NARSHIBHAI THAKORE & 4 other(s)
==========================================================
Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1,2,3,4,5
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3,5
NOTICE SERVED(4) for the Defendant(s) No. 2,4
NOTICE UNSERVED(8) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 22/11/2021
ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
C/FA/2831/2018 JUDGMENT DATED: 22/11/2021
1. The appellants who are claimants before the
Tribunal have presented this First Appeal No. 2831 of
2018, challenging the correctness and legality of the
judgment and award dated 31.01.2018 passed by the
Motor Accident Claims Tribunal (Aux) at Bhuj- Kachchh
in MACP No. 482 of 2000, in which the the claim
petition of the claimants under Section 166 of the
Motor Vehicles Act, 1988 (hereinafter referred to as
the "Act") has been allowed in part and compensation
of Rs. 16,82,800/- with 9% interest from the date of
the petition till the date of realisation has been
awarded.
2. The facts in brief are as under -
2.1 On 02.06.2000, the deceased Keshavji Balabhai
Maheshwari was going from Ganeshnagar to Khari Rohar
on Luna bearing registration No. GJ-12S-6281 along
with Shri Babubhai @ Bawa Kesha Maheshwari. The
deceased was driving the Luna and Shri Babu @ Bawa
Kesha was pillion rider. The deceased was driving on
the left side of the road with moderate and
controlled speed. Between 18.30 to 18.45 hrs., the
said Luna had reached about 3 kms. away from
Gandhidham Police Station, on Kandla Gandhidham Road
proceeding towards sewage pump no.3. At that time,
opponent no.1 who was in employment of opponent no.2
came from opposite side along with Truck No. GJ-2X-
178, with excessive speed, in a rash and negligent
manner. The driver of the truck lost control over
the steering and came on the wrong side of the road
and dashed and collided with Luna. This has resulted
C/FA/2831/2018 JUDGMENT DATED: 22/11/2021
in to serious injuries to the deceased and he
succumbed to death on 03.06.2000. The deceased died
during treatment at Gokul Hospital, Rajkot after
about 23 hours. On account of rash and negligent
driving of opponent no.1, FIR was also lodged and
charge-sheet was filed. The original claimants filed
a claim petition seeking compensation of Rs.
75,00,000/- along with interest at the rate of 18%
p.a. from the date of filing of the claim petition.
2.2 The Tribunal based on the oral and documentary
evidence, allowed the appeal in part and awarded
total compensation as under -
Rs.16,12,800/- -
Future loss of income
Rs. 15,000/- -
Funeral expenses and
and transportation
Rs. 15,000/- - Loss of Estate
Rs. 40,000/- - Loss of Consortium
--------------------------------
Rs.16,82,800/- Total
--------------------------------
The total compensation of Rs.16,82,800/- was
allowed with 9% interest from the date of filing of
the claim petition till its realisation. Challenging
the said award dated 31.01.2018, present appeal is
filed under Section 173 of the Motor Vehicles Act,
1988.
3. We have heard learned counsel Mr. Hemal Shah for
the appellants no.1 to 5 (original claimants) and
Mr.Rathin Raval, learned counsel for respondents nos.
3 and 5 (insurance company). Though served, no one
C/FA/2831/2018 JUDGMENT DATED: 22/11/2021
appears for respondents no.2 and 4. As the liability
is not denied, the presence of respondent no.1 is not
necessary. We have also perused the original record
and proceedings.
4. It is the case of the appellants that deceased
was driving with a moderate speed and on the right
side of the road. The accident took place on account
of sole negligence on the part of the opponent no.1.
He further submitted that the Tribunal has erred in
not arriving at the correct income of the deceased
and thus, the Tribunal committed an error in
determining the income of the deceased at Rs. 8,000/-
p.m. He further submitted that the claimants would
be entitled to filial and parental consortium. He
relied on oral and documentary evidence in support of
his submissions.
5. Per contra, Mr. Rathin Raval, learned counsel
appearing for the insurance company submitted that
based on the evidence, the Tribunal has correctly
determined the income of the deceased at Rs. 8,000/-
per month. In relation to consortium, he submitted
that aged mother, children are not entitled for
consortium as prayed for. He supported the award of
the Tribunal dated 31.01.2018. For consortium, he
relied upon the decision of the Bombay High Court in
the case of IFFCO Tokio General Insurance Co. Ltd.
Vs. Smt. Jyoti Ajay Avatade & Ors. in First Appeal
No. 1239 of 2016 wherein it has been observed as
under -
C/FA/2831/2018 JUDGMENT DATED: 22/11/2021
"24. In so far as the filial consortium claimed
by the respondent nos. 1 to 5 is concerned, in
my view, since the said deceased was not a
bachelor at the time of his death, the parents
would not be entitled to claim any filial
consortium. The Supreme Court in case of Magma
General Insurance Co. Ltd. (supra) has held that
in case where the 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. In my view,
the said part of the said judgment would clearly
apply to the facts of this case. Thus, claim
towards filial consortium demanded by the
respondent nos. 4 and 5 cannot be considered."
He also relied upon the decision of the Calcutta High
Court in the case of National Insurance Co. Ltd. Vs.
Sohna Singh & Ors. reported in 2020 ACJ 1946 wherein
it has been observed as under -
"30. It is therefore clear that the amount
towards loss of estate, loss of consortium and
funeral expenses has already been quantified by
the Hon'ble Supreme Court at Rs. 15,000/-, Rs.
40,000/- and Rs. 15,000/- respectively.
Therefore, no further amount shall be granted
towards loss of consortium beyond the figure
provided above. Once the Constitution Bench
judgment of the apex court is cited before us,
which we must respectfully apply, we do not have
the luxury of subscribing to a different view as
it is a law laid down within the meaning of
Article 141 of the Constitution of India, even
if we thought differently, which we do not.
31. The learned counsel for the claimants/cross
objectors brought to our notice a judgment
passed by a Division Bench of the Hon'ble
Supreme Court in Magma General Insurance Co.
Ltd.--v--Nanu Ram and Others reported in 2018 ACJ
2782 equivalent to whereby an amount of Rs.
40,000 each for loss of filial consortium was
awarded to the father and the sister of the
C/FA/2831/2018 JUDGMENT DATED: 22/11/2021
deceased in that case. Our difficulty in relying
upon the aforesaid judgment is that even though
a reference of the decision of a larger bench in
Pranay Sethi (supra) was made, the law regarding
payment of consortium as laid down therein was
departed from in Nanu Ram (supra). In view of
the position of law and the provisions of
Article 141 of the Constitution of India,
however, Nanu Ram (supra) is at best a decision
under Article 142 of the Constitution of India,
to do complete justice to the parties in the
facts and circumstances of the case, which power
we do not have as a court of appeal under
Section 173 of the 1988 Act. We continue to be
bound by Pranay Sethi (supra).
32. Even otherwise, the decision in Nanu Ram
(supra) does not apply to the present case on
facts. In Nanu Ram (supra), the victim was a 25-
year old bachelor whose dependents included his
unmarried sister and his father while the victim
in this case is married and survived by his
mother, a wife and two daughters. In this
backdrop, no other amount towards loss of
consortium could be awarded as filial consortium
to the mother of the victim. In fact, the
Hon'ble Supreme Court in Nanu Ram (supra)
clarified the applicability of its decision in
the following words:
"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."
C/FA/2831/2018 JUDGMENT DATED: 22/11/2021
Therefore, the Hon'ble Supreme Court has clearly
held in Nanu Ram (supra) that the peculiar facts
of that case, where a parent or parents lost
their minor child or unmarried son or daughter,
they were allowed to be awarded loss of
consortium. In the present case, the parent
claiming amounts for loss of consortium
admittedly was not the parent of an unmarried
son or minor son for whose death due to the
accident the compensation is payable. In such
view of the matter, taking aid of the structured
formula for the calculation of the amount of
compensation as laid down in Pranay Sethi
(Supra) is binding on us."
6. No other and further submissions were made by
the learned counsels.
7. Having heard the learned counsel appearing for
the parties and having perused the documents on
record, we are of the considered opinion that the
following points would arise for consideration -
1) Whether the claimants are entitled for
higher compensation?
2) Whether the claimants are entitled for
parental and filial consortium?
8. So far as income of deceased is concerned, the
claimants had filed Income Tax Return (Exhibit 55)
for assessment year 2000-2001 disclosing net taxable
income at Rs. 1,67,050/-. Tax of Rs. 24,058/- was
paid on the said return. Upon re-appreciation of
evidence, we are of the opinion that income of the
deceased is to be taken as Rs. 1,67,050/- (net
C/FA/2831/2018 JUDGMENT DATED: 22/11/2021
income) - Rs. 24,058/- (tax paid) = Rs. 1,42,990/-
p.a.
9. With regard to consortium, we have considered
the decisions relied upon by the learned counsel
appearing for the insurance company. The Supreme
Court in the case of National Insurance Company Ltd.
Vs. Pranay Sethi, reported in 2017 (16) SCC 680, in
para 52 has observed as under-
"52.As far as the conventional heads are concerned,
we find it difficult to agree with the view
expressed in Rajesh. It has granted Rs. 25,000/-
towards funeral expenses, Rs. 1,00,000/- loss of
consortium and Rs. 1,00,000/- towards loss of care
and guidance for minor children. The head relating
to loss of care and minor children does not exist.
Though Rajesh refers to Santosh Devi, it does not
seem to follow the same. The conventional and
traditional heads, needless to say, 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 a 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 passed by the
tribunals and courts are likely to be unguided.
Therefore, we think it seemly to fix reasonable
sums. It seems to us 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. The principle of revisiting the said
heads is an acceptable principle. But the revisit
should not be fact-centric or quantum-centric. We
think that it would be condign that the amount that
we have quantified should be enhanced on percentage
C/FA/2831/2018 JUDGMENT DATED: 22/11/2021
basis in every three years and the enhancement
should be at the rate of 10% in a span of three
years. We are disposed to hold so because that will
bring in consistency in respect of those heads."
10. In the subsequent decision in the case of Magma
General Insurance Company Limited vs. Nanuram alias
Chuhru Ram and Ors. reported in (2018) 18 SCC 130,
the Supreme Court in relation to consortium has
observed as under -
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 '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 husbandwife 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
C/FA/2831/2018 JUDGMENT DATED: 22/11/2021
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.
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.
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.
11. In the decision of United India Insurance Co.
C/FA/2831/2018 JUDGMENT DATED: 22/11/2021
Ltd. Vs. Satinder Kaur alias Satwinder Kaur and Ors.
reported in AIR 2020 SC 3076, the Supreme Court has
observed as under -
"9.7 Insofar as the conventional heads are
concerned, the deceased Satpal Singh left behind
a widow and three children as his dependants. On
the basis of the judgments in Pranay Sethi
(supra) and Magma General (supra), the following
amounts are awarded under the conventional
heads:-
i) Loss of Estate: Rs. 15,000
ii) Loss of Consortium:
a) Spousal Consortium: Rs. 40,000
b) Parental Consortium: 40,000 x 3 = Rs.
1,20,000
iii) Funeral Expenses : Rs. 15,000"
12. In view of the above observations, we are of the
opinion that in Indian society, care, concern, help,
guidance and affection is not limited to spouse only.
Therefore, the contention that aged mother and
children are not entitled for filial and parental
consortium in our opinion is contrary to the ratio of
the above decisions and intent and object of payment
of consortium.
13. Further, in the decision of the Bombay High
Court relied upon by learned counsel Shri Raval, the
claim for consortium was not pressed therein.
14. In view of the above, the appellants are
entitled to compensation under the head of Future
Loss of Income as under -
C/FA/2831/2018 JUDGMENT DATED: 22/11/2021
Rs.11,916/-(monthly income) + Rs. 4,766/- (40%
prospective income) = Rs. 16,682/- - Rs.4171/-
(1/4th deduction towards personal expenses) =
Rs.12,512/- X 12 X 16 = Rs.24,02,304/-
Rs.40,000/- each to mother and two minor
children, as filial and parental consortium.
Thus, the appellants would be entitled to total
compensation as under -
Rs.24,02,304/- - Future Loss of Income
Rs. 15,000/- - Loss of Estate
Rs. 15,000/- - Funeral expenses
Rs.1,60,000/- - Loss of consortium
(Spouse Filial and parental)
----------------
Rs.25,92,304/- Total compensation
================
15. Thus, the appellants-original claimants would be
entitled to total compensation of Rs.25,92,304/-.
The Tribunal has awarded interest at the rate of 9%
interest per annum from the date of filing of the
claim petition till its realisation. As the Tribunal
has awarded Rs.16,82,800/-, the appellants-original
claimants would be entitled to an additional
compensation of (Rs.25,92,304/- - Rs.16,82,800/-)
Rs.9,09,504/- with 7% interest per annum on the
enhanced compensation and costs from the date of
filing of the claim petition till its realisation.
The impugned judgment and award stands modified to
the aforesaid extent. The insurance company shall
deposit the additional/enhanced amount along with
interest from the date of the claim petition as
C/FA/2831/2018 JUDGMENT DATED: 22/11/2021
provided in this judgment within a period of eight
weeks from the date of the receipt of this judgment.
16. The appeal is thus partly allowed. However,
there shall be no order as to costs in this appeal.
Registry is directed to remit the record and
proceedings back to the Tribunal forthwith.
17. Civil application if any filed stands disposed
of accordingly.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
BIJOY B. PILLAI
