Gujarat High Court
Puriben Dhanajibhai Khandhar vs Hemantbhai Manjibhai Nakum on 14 December, 2022
Bench: Vaibhavi D. Nanavati
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 86 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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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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PURIBEN DHANAJIBHAI KHANDHAR
Versus
HEMANTBHAI MANJIBHAI NAKUM
=====================================================
Appearance:
MR PREMAL S RACHH(3297) for the Appellant(s) No.
1,2,3,4
MR AJAY R MEHTA(453) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
=====================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 14/12/2022
ORAL JUDGMENT
1. Being aggrieved by the judgment and award dated
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
09.01.2019 passed in Motor Accident Claims
Tribunal (Auxi) and 5th Additional District
Judge, Jamnagar, the appellants herein are
constrained to approach this Court by way of
filing the present First Appeal challenging the
said judgment and order, so far as quantum of
compensation and contributory negligence are
concerned.
2. The appellants - original claimants are the
legal heirs and legal representative of the
deceased, had filed present claim petition
seeking compensation to the tune of
Rs.12,00,000/- from the opponents on account of
death of deceased due to injuries sustained by
him in an accident which occurred on 07.01.2009
at the time and place specified in the petition
involving the Tanker No.GJ-10-X-5828 which was
being driven in a rash and negligent manner by
the driver opponent No.1, which was of the
ownership of the opponent No.2 and insured by
Opponent No.3 and thereby sought for
compensation as referred above.
3. As per the case of the appellants - original
claimants, on 07.01.2009, the deceased was going
on his bicycle from Vijaynagar Jakatnaka to
Samarpan Hospital road on left side of the road,
at same time the driver of the Tanker having
registration No.GJ-10-X-5828 came in high speed
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
and in rash and negligent manner and dashed with
the deceased from behind. As a result of that
the deceased succumbed to injuries and died. The
complaint in that regard has been lodged with
City B Division Police Station with regard to
the accident. It is also the case of the
appellants - original claimants that the
deceased was aged about 40 years at the time of
accident and was earning Rs.4,000/- by serving
as watchman and also earning Rs.1,00,000/- from
agriculture and was retired army man. On account
of his untimely death the appellants are
deprived of his income and have suffered great
mental shock. Therefore, on above facts the
applicants filed Claim Petition seeking
compensation to the tune of amount of
Rs.12,00,000/- under various heads such as loss
of dependency, loss of expectation of life,
consortium, funeral expenses etc, enunciated in
Claim Petition with interest and costs from the
opponents.
4. The learned Tribunal while deciding the
aforesaid claim petition in the impugned
judgment passed the following order :-
": : F I N A L O R D E R : :
1. The present Claim-petition is partly
allowed.
2. The Opponents do pay the applicants an
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
amount of Rs.5,76,250/- (Rupees Five Lakh
Seventy Six Thousand Two Hundred Fifty
Only), together with interest at the rate
of 9% per annum, from the date of Judgment
till realization within One Month.
3. The Opponents do pay costs of the
applicant and also bear that of their own.
4. On depositing the aforesaid amount of
compensation, deficit Court fees, if any,
be deducted therefrom and amount of
interim compensation would paid if any, be
deduct first
5. Thereafter, from the remaining payable
amount with interest and costs, the
applicants No.-1 to 3 are ordered to be
paid 30% by a/c. payee cheque on proper
identification and thereafter, 70% of the
share be deposited in the name of
applicants No.-1 to 3 in a Nationalized
Bank or in any Government Security of the
choice of applicant for a period of five
years keeping nomination clause with
condition that no loan or advance would be
admissible, but applicant would be
entitled to get periodical interest that
may accrue on said F.D.R. as per rules.
While the 100% share of applicant No.-4
being Minor is ordered to be paid in the
name of Minors through Applicant No.-2 in
a Nationalized Bank or in any Government
Security of the choice of applicant for a
period of five years or till the time
minor attain majority whichever is more
and keeping nomination clause with a
condition that no loan or advance would be
admissible, but the guardian would be
entitled to get periodical interest that
may accrue on the said F.D.R. as per
rules.
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
6. Award be drawn accordingly."
5. Mr. Premal S. Rachh, the learned advocate
appearing for the appellants - original
claimants submitted that the concerned Court has
erred in considering the income of deceased as
Rs.3,000/- per month only on the ground that no
cogent evidence regarding income is produced on
record. Mr. Premal S. Rachh, the learned
advocate appearing for the appellants - original
claimants also submitted that the learned
Tribunal has erred in awarding only Rs.40,000/-
towards loss of consortium, Rs.15,000/- towards
loss of estate and Rs.15,000/- towards funeral
expenses, which is on a lower side and contrary
to ratio laid down in a recent decision of the
Hon'ble Apex Court.
5.1 Mr. Premal S. Rachh, the learned advocate
appearing for the appellants - original
claimants submitted that the learned Tribunal
has grossly erred in awarding interest from the
date of judgment instead of awarding interest
from the date of filing of claim petition in
absence of any fault on the part of appellants
and without assigning any reasons whatsoever.
Mr. Premal S. Rachh, the learned advocate
appearing for the appellants - original
claimants placing reliance in the case of
Shashikala reported in (2015) 9 SCC 150, further
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
submitted that interest at the rate of 9% ought
to have been awarded by the learned Tribunal
from the date of claim petition till
realization.
6. Placing reliance on the aforesaid, Mr. Premal S.
Rachh, the learned advocate appearing for the
appellants - original claimants submitted that
the impugned judgment is required to be modified
and the amount of compensation is required to be
enhanced together with cost and interest from
the date of filing of claim petition.
7. Mr. Anmol Mehta, the learned advocate appearing
for the respondent No.3 - Insurance Company
submitted that no error could have been said to
be committed by the learned Tribunal considering
the income of deceased as Rs.3,000/- per month
considered as workman and the year of accident,
i.e. Rs.36,000/- per annuam, is just and proper
as no cogent evidence regarding income is
produced on record. Mr. Anmol Mehta, the learned
advocate appearing for the respondent No.3 -
Insurance Company also submitted that the
learned Tribunal has considered the ratio as
laid down in the case of National Insurance
Company Limited Versus Pranay Sethi and Others
reported in Special Leave Petition (Civil)
No.25590 of 2014.
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
8. Mr. Anmol Mehta, the learned advocate appearing
for the respondent No.3 - Insurance Company
however was not in a position to controvert the
submissions advanced by Mr. Premal S. Rachh, the
learned advocate appearing for the appellants -
original claimants.
9. Having heard the learned advocates appearing for
the respective parties, this Court deems it fit
to refer to the ratio as laid down by the
Hon'ble Supreme Court in the following cases,
Wherein the Hon'ble Supreme Court has considered
the aspect of determining the consortium which
reads thus :-
9.1 In the case of Magma General Insurance
Co. Ltd. v. Nanu Ram & Ors. reported in (2018)
18 SCC 130 :-
8.7 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
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
spouse.3 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,
co−operation, affection, and aid of the
other in every conjugal relation." 4
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." 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 3 Rajesh and
Ors. vs. Rajbir Singh and Ors. (2013) 9
SCC 544 BLACK' S LAW DICTIONARY(5th
ed.1979) 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.
Consortium is a special prism reflecting
changing norms about the status and worth
of actual relationships. Modern
jurisdictions world−over 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.
The Motor Vehicles Act is a beneficial
legislation aimed at providing relief to
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
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 count5. However,
there was no clarity with 5 Rajasthan High
Court in Jagmala Ram @ Jagmal Singh & Ors.
v. Sohi Ram & Ors 2017 (4) RLW 3368 (Raj);
Uttarakhand High Court in Smt. Rita Rana &
Anr. v. Pradeep Kumar & 6 Ors. respect to
the principles on which compensation could
be awarded on loss of Filial Consortium.
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."
9.2 In the case of United India Insurance Co.
Ltd. versus Satinder Kaur alias Satwinder Kaur
reported in AIR 2020 SC 3076 :-
"b) Loss of Consortium Loss of Consortium,
in legal parlance, was historically given
a narrow meaning to be awarded only to the
spouse i.e. the right of the spouse to the
company, care, help, comfort, guidance,
society, solace, affection and sexual
relations with his or her mate. The loss
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
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 for awarding
compensation in various jurisdictions such
as the United States of America,
Australia, etc. English courts have
recognised the right of a spouse to get
compensation even during the period of
temporary disablement.
In Magma General Insurance Co. Ltd. v.
Nanu Ram & Ors.,12 this Court interpreted
"consortium" to be a compendious term,
which encompasses spousal consortium,
parental consortium, as well as 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.
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.
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 12 (2018) 18
SCC 130.
child during their lifetime. Children are
valued for their love and affection, and
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
their role in the family unit. Modern
jurisdictions world-over 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
permit parents to be awarded compensation
under loss of consortium on the death of a
child. The amount awarded to the parents
is the compensation for loss of love and
affection, care and companionship of the
deceased child.
The Motor Vehicles Act, 1988 is a
beneficial legislation which has been
framed with the object of 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 the
children who lose the care and protection
of their parents in motor vehicle
accidents. The amount to be awarded for
loss consortium will be as per the amount
fixed in Pranay Sethi (supra)."
9.3 In the case of New India Assurance Company
Limited Versus Nemchandbhai Devraj Galaiya
dated 05.05.2022 reported in 2022 (0) AIJEL-HC
244041 : 2022 JX (Guj) 334 :-
"5) First Appeal No. 3270 of 2010 This
appeal arises out of judgement and award
passed in MACP No. 618 of 1998 wherein the
original claimants have claimed
compensation of Rs.9,00,000/-. Mohanlal
Padamsi Shah was examined at exhibit 50.
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
The Tribunal considered the income of the
deceased Rekhaben at Rs.24,000/- p.a.,
i.e., Rs.2,000/- p.m. However, considering
the fact that deceased Rekhaben Mayurbhai
Shah was house wife and there is also
evidence to show that she was engaged in
tuition classes, the notional income of
the deceased can be determined at
Rs.36,000/- p.a., i.e., Rs.3,000/- per
month. The claimants would also be
entitled to increase in income by way of
prospective income to the extent of 40%.
At this stage, it would be appropriate to
note that the claim petition was preferred
by the father-in-law, mother-in-law and
brother-in-law, however, claim qua
brother-in-law is dismissed. Therefore,
the father-in-law and mother- in-law of
the deceased would be entitled to
Rs.40,000/- each as filial consortium as
per the judgment of the Apex Court in the
case of Satinder Kaur (supra), Magma
General Insurance Company Limited (supra)
and Somwati (supra). We find that while
considering the multiplier, the Tribunal
has considered the age of the claimant and
has applied multiplier of 11. In the claim
petition, it is clearly mentioned that the
deceased Rekhaben was 22 years on the date
of the accident and hence, following the
judgment of the Apex Court in the case of
Sarla Verma (supra) and Pranay Sethi
(supra), the appropriate multiplier would
be that of 18 and not 11. As far as
deduction towards personal expenses is
concerned, 1/3rd deserves to be deducted
towards personal expenses of the deceased.
Following the judgment of the Apex Court
in the case of Pranay Sethi (supra), the
claimants would be entitled to Rs.15,000/-
as loss of estate and Rs.15,000/- towards
funeral charges. Having come to the
aforesaid conclusion, the claimants of
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
MACP No. 618/98 would be entitled to
compensation as under -
Rs.36,000/-(income p.a.) + 14,400/- (40%
prospective income) - Rs.16,800/- (1/3rd
deduction towards personal expenses) =
Rs.33,600/- X 18 (multiplier) = Rs.
6,04,800/- (Loss of dependency)
Loss of dependency - Rs.6,04,800/-
Filial consortium - Rs.80,000/-
(Rs.40,000/- X 2)
Loss of estate - Rs.15,000/-
Funeral expenses - Rs.15,000/-
Total compensation Rs. 7,14,800/-
As the Tribunal has awarded Rs.1,91,000/-,
the claimants would be entitled to
additional compensation of Rs.5,23,800/-.
However, such additional amount would bear
interest at the rate of 6% from the date
of filing of the claim petition till its
realization.
6) First Appeal No. 3271 of 2010 This
appeal arises out of judgement and award
passed in MACP No. 619 of 1998 wherein the
original claimants have claimed
compensation of Rs.9,00,000/-. Chandanbhai
Nemchand Galaiya was examined at exhibit
41. The Tribunal considered the income of
the deceased Varshaben @ Vandanaben
Kamleshbhai at Rs.24,000/- p.a., i.e.,
Rs.2,000/- p.m. However, considering the
fact that deceased Varshaben was house
wife, the notional income of the deceased
can be determined at Rs.36,000/- p.a.,
i.e., Rs.3,000/- per month. The claimants
would also be entitled to increase in
income by way of prospective income to the
extent of 40%. At this stage, it would be
appropriate to note that the claim
petition was preferred by the father-in-
law, mother-in-law and brother-in-law,
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
however, claim qua brother-in-law is
dismissed. Therefore, the father-in-law
and mother- in-law of the deceased would
be entitled to Rs.40,000/- each as filial
consortium as per the judgment of the Apex
Court in the case of Satinder Kaur
(supra), Magma General Insurance Company
Limited (supra) and Somwati (supra). We
find that while considering the
multiplier, the Tribunal has considered
the age of the claimant and has applied
multiplier of 11. In the claim petition,
it is clearly mentioned that the deceased
Varshaben was 23 years on the date of the
accident and hence, following the judgment
of the Apex Court in the case of Sarla
Verma (supra) and Pranay Sethi (supra),
the appropriate multiplier would be that
of 18 and not 11. As far as deduction
towards personal expenses is concerned,
1/3rd deserves to be deducted towards
personal expenses of the deceased.
Following the judgment of the Apex Court
in the case of Pranay Sethi (supra), the
claimants would be entitled to Rs.15,000/-
as loss of estate and Rs.15,000/- towards
funeral charges. Having come to the
aforesaid conclusion, the claimants of
MACP No. 619/98 would be entitled to
compensation as under -
Rs.36,000/-(income p.a.) + 14,400/- (40%
prospective income) - Rs.16,800/- (1/3rd
deduction towards personal expenses) =
Rs.33,600/- X 18 (multiplier) = Rs.
6,04,800/- (Loss of dependency)
Loss of dependency - Rs.6,04,800/-
Filial consortium - Rs.80,000/-
(Rs.40,000/- X 2)
Loss of estate - Rs.15,000/-
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
Funeral expenses - Rs.15,000/-
Total compensation Rs.7,14,800/-
As the Tribunal has awarded Rs.1,91,000/-,
the claimants would be entitled to
additional compensation of Rs.5,23,800/-.
However, such additional amount would bear
interest at the rate of 6% from the date
of filing of the claim petition till its
realisation."
9.3 In the case of Kanti Devi and others
Versus New India Assurance Company Limited dated
23.09.2022 passed by the High Court of Delhi at
New Delhi :-
"8. Regarding the consortium to be granted
in the present case, this Court notes that
the learned Claims Tribunal has treated
only 4 of the legal representatives as
dependent of the deceased. According to
the learned Claims Tribunal, there is no
evidence to the fact that the 2 married
daughters and major son are dependent on
the deceased.
9. The Hon'ble Supreme Court in the case
of Magma General Insurance Company Vs Nanu
Ram alias Chuhru Ram reported as (2018) 18
SCC 130, while explaining the principle of
consortium, held that in legal parlance,
'consortium' 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. Parental
consortium is granted to the child upon
the premature death of a parent for loss
of parental aid, protection, affection,
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
society, discipline, guidance and
training. This Court is of the considered
opinion that parental consortium is
available to all the children irrespective
of the fact that whether they were
dependent on the deceased or not. Hence in
the present case, all the children of the
deceased are entitled for the consortium
under the head Parental Consortium. The
widow is entitled for the spousal
consortium and mother is entitled for the
filial consortium."
10. Considering the facts of the present case
and position of law as referred above, this
Court deems it fit to modify the order passed by
the learned Tribunal to the extent that the
consortium which is granted by the learned
Tribunal was Rs.40,000/- is enhanced to
Rs.1,60,000/- and consequentially, the claimants
i.e. Parents of the deceased are entitled to
filial consortium, minor is entitled to parental
consortium and wife is entitled to spousal
consortium would entitled to compensation of
Rs.6,96,250/-. For the aforesaid reasons the
appellants herein are entitled to enhancement of
compensation amount of Rs.1,20,000/- (i.e.
Rs.6,96,250/- - Rs.5,76,250/- = Rs.1,20,000/-).
11. The applicants - original claimants are
entitled to the following amount of compensation
under the various heads as under :-
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
Sr. Descriptions Amount in Difference
No. Rs. amount in
Rs.
1 Loss of 5,06,250 5,06,250
Dependency
2 Loss of 15,000 15,000
Estate
3 Consortium 40,000 1,60,000
4 Funeral 15,000 15,000
Expenses
TOTAL 5,76,250 6,96,250
12. The present appeal is allowed in part.
13. The appellants are directed to pay the
remaining amount of Rs.5,76,250/- +
Rs.1,20,000/- = Rs.6,96,250/- together with
interest at the rate of 9% from date of claim
petition till its realization within a period
of eight weeks from the receipt of the order.
14. The opponents are directed to pay the
appellants - original claimants enhanced amount
of Rs.1,20,250/- at the rate of 9% from the
date of claim petition till its realization
within a period of eight weeks from the receipt
of the order. Rest the directions passed in the
order dated 06.09.2019 in paragraph Nos. 3, 4, 5
and 6 of the order dated 06.09.2019 shall
remain same.
C/FA/86/2020 JUDGMENT DATED: 14/12/2022
15. Record and proceedings be sent back to the
concerned Tribunal forthwith.
(VAIBHAVI D. NANAVATI,J)
Pallavi
