(PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE)
[1.] The original claimants have preferred First Appeal
No.1505 of 2013 under Section 173 of the Motor Vehicles Act, 1988
(henceforth, "the Act, 1988"), being aggrieved and dissatisfied with
the judgment and award dated 29.09.2012 passed by the Motor
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Accident Claims Tribunal (Aux.), Kheda at Nadiad in M.A.C.P. No.662 of
2001, whereas, the cognate appeal registered as First Appeal No.2084
of 2013, is preferred by the S.T. Corporation, assailing the same
[2.] The Division Bench of this Court have admitted both these
appeals vide order dated 08.08.2013. Pending the final hearing of
both the appeals, in an application for stay preferred by the S.T.
Corporation being Civil Application No.7963 of 2013 preferred in First
Appeal No.2084 of 2013, the Division Bench of this Court, vide order
Rs.13,98,241/- has been disbursed. The Court had, therefore, issued
show cause notice upon the original claimant no.1-Jitendra Motibhai
Patel, as to why appropriate directions should not be issued to
redeposit the amount of investment, which has been withdrawn in
excess of the permitted withdrawal of only 30%. In the meanwhile,
the learned Principal Judge, Kheda, was directed to share the
information about the Judicial Officer, who has passed such an order
of disbursement. Subsequently, vide order dated 16.09.2013,
considering the report of the learned District Judge and the
explanation offered, the Division Bench of this Court referred the
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administrative side for suitable action against the erring Officer. Since
the appeals were notified for final hearing, the matters were
peremptorily heard and decided by this common order.
[3.] The case pleaded by the original claimants before the
Tribunal, in the claim petition preferred under Section 166 of the Act,
[5.1] The oral and documentary evidence were led by the
original claimants. The details of which are reproduced hereunder:
No.
The certified copy of the complaint dated
15.02.2018.
The copy of the post mortem report of
the deceased.
The certified copy of the order passed
4. below application under Section 140 of 31
the Act.
The pay slip of the deceased of the
previous month i.e. January-2001.
The certificate issued by Shri Sharad
Shah Higher Education School, Sandhana,
6. with regard to the date of birth, date of 23
joining service and expected retirement
date of the deceased.
The salary receipt issued by Shri Sharad
Shah Higher Education School, Sandhana,
indicating the expected salary of January-
The copy of the order reflecting gratuity
8. amount of Rs.1,28,700/- received by the 25
heirs of the deceased
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The copy of the School Leaving
Certificate of the D.V. Patel High School
reflecting the date of birth of the
deceased.
The copy of the letter dated 19.01.2012
addressed by the advocate of the
claimants to Shri Sharad Shah Higher
Education School, Sandhana, seeking
information about the requisite details of
the salary earned by the deceased.
[5.2] On the other hand, the respondent- S.T. Corporation had
initially failed to examine any witness or to lead any documentary
evidence. The closing pursish were tendered by the original claimants
as well as by the respondent-Corporation at Exh.27 and Exh.32
respectively, thereby declaring their closure of right to lead further
evidence. Subsequently, an application was moved by the respondent-
Corporation seeking reopening of their evidence stage. The affidavit
of the original opponent no.1/Aaskiali Imamali Saiyad- driver of the
S.T. Corporation was submitted on record at Exh.36. The respective
parties have tendered their written arguments on record at Exh.39
and Exh.40 respectively.
[5.3 ] Upon overall appreciation of the aforesaid evidence
brought on record and the arguments advanced, the Tribunal had
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answered the aforesaid issues framed at Exh.7 in affirmative, thereby,
holding the driver of the S.T. Corporation negligent towards the
occurrence of accident to the extent of 90% and the deceased was
found to have contributed to the occurrence of accident to the extent
of 10%.
[5.4] On the issue of quantum of compensation and liability,
the Tribunal had held the original claimants entitled to recover an
amount of Rs.14,92,800/- from the opponents with interest at the rate
of 7.5% per annum from the date of filing of claim petition till its
actual realization. The appropriate directions of the disbursement and
investment of the amount to be deposited, were also issued by the
Tribunal.
Hence, the present appeals at the instance of the original
claimants as well as on behalf of the S.T. Corporation mainly disputing
the quantum of compensation and the issue of negligence viz-a-viz the
liability.
[6.] We have heard learned advocate Ms. Hina Desai
appearing for the appellant- S.T. Corporation and learned advocate
Mr. Mohsin Hakim appearing for the original claimants. In the appeal
preferred by the original claimants, learned advocate Mr. C.S. Shukla
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has entered appearance on behalf of the respondent- S.T.
Corporation.
[7.] Learned advocate for the appellant-Corporation has
assailed the impugned judgment and award passed by the Tribunal on
the issue of negligence and the consequential liability of the S.T.
Corporation. It is submitted that no eye witness has been examined by
the original claimants. The two witnesses, who have been examined by
the applicants include the applicant no.1, who is the husband of the
deceased and the witness, who is the Head-clerk associated with the
School, where the deceased used to serve as a Teacher. None of the
aforesaid witnesses has seen the occurrence of the accident. On the
other hand, the S.T. Corporation has examined the driver of the
alleged bus involved.
[7.1] The attention of this Court was invited to the specific
defence raised by the S.T. Corporation in the written statements
submitted before the Tribunal. Learned advocate has disputed the
involvement of the vehicle involved. According to her, even the bare
appreciation of the original complaint and the panchnama produced
on record, do not indicate the involvement of the vehicle.
Alternatively, she has submitted that it has transpired on record that
the deceased was trying to cross the road and in the process, the bus,
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while moving ahead, seems to have hit the deceased. She has,
therefore, prayed to hold the driver of the S.T. Corporation as well as
the deceased equally negligent towards the occurrence of accident.
As regards the quantum of compensation, the learned advocate has
submitted that the First Appeal of ST Corporation is confined to the
issue of negligence and liability and quantum is not challenged. She
has therefore prayed to allow the First Appeal by exonerating the S.T.
Corporation or alternatively, the liability may be reduced to 50% of
the amount determined by holding the deceased equally negligent
towards the occurrence of accident.
[8.] Per contra, Mr. Mohsin Hakim, learned advocate
appearing for the original claimants, has vehemently opposed the
submissions made by learned advocate Ms. Hina Desai appearing for
the appellant- S.T. Corporation on the issue of negligence. It is
submitted that right from inception of filing of the claim petition, the
specific case pleaded before the Tribunal, was that the deceased was a
pedestrian and while she was standing near the bus stand, the driver
of S.T. Corporation by driving the bus in a rash and negligent manner,
had hit the deceased causing fatal injuries. It was pointed out that the
driver had not stopped the bus and had fled away from the place of
the accident. Later on, the conductor of the said bus had reported
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about the accident to the concerned police station against the driver
of the S.T. Corporation- opponent no.1.
[8.1] The attention of this Court was invited to the written
arguments submitted by the claimants before the Tribunal at Exh.39,
as well as the pursish submitted at Exh.27 and Exh. 32 by the
respective parties, declaring their intention of closure of their
evidence stage. It was submitted that noticing the plea of the
claimants to draw adverse inference in absence of any witness mainly
the conductor and the driver of the S.T. Corporation, being examined
by the respondent- Corporation, the application seeking reopening of
the evidence stage, was moved. The affidavit of the driver of the S.T.
Corporation was subsequently submitted before the Tribunal at
Exh.36. The bare appreciation of the deposition of the driver of the
S.T. Corporation, suggests a contradictory stand being taken by the
said witness inasmuch as, he has completely denied the fact of
involvement of the vehicle and the occurrence of the accident, despite
the fact that the complaint was given by the conductor of the S.T.
Corporation. In his cross-examination, however, the said witness has
fairly admitted that the deceased had succumbed to fatal injuries,
caused due to the motor vehicle accident. Learned advocate has,
therefore, submitted that it is not open for the S.T. Corporation to
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seek complete exoneration by disputing the involvement of the
vehicle and the occurrence of the accident.
[8.2] As regards the issue of contributory negligence being
raised in the present appeal by the S.T. Corporation, learned advocate
has submitted that the appellant-Corporation has failed to examine
the conductor as a witness, who had, in fact, reported about the
occurrence of the accident before the concerned police station.
Considering the contents of the FIR, this Court may raise adverse
inference against the S.T. Corporation for non-examination of such
vital witnesses. He has, therefore, submitted that though there is no
challenge being made on the issue of negligence at the instance of the
original claimants in the cognate appeal preferred by them, this Court
may not interfere with the findings and reasons assigned by the
Tribunal on the issue of negligence attributing 10% to the deceased. It
was submitted that pursuant to the FIR registered, the investigation
was carried out by the Competent Officer and charge-sheet was filed
against the present opponent no.1- driver of the S.T. Corporation. He
has fairly pointed out that the criminal case registered pursuant to
such charge-sheet, has resulted into the acquittal of the original
opponent no.1- driver of the S.T. Corporation for the offence alleged.
However, he has submitted that the criminal court has acquitted the
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driver of the S.T. Corporation, giving benefit of doubt. He has further
submitted that the aforesaid ruling of the criminal court shall have no
bearing to the present proceedings, as the Tribunals are expected to
evaluate the evidence on the principles of the touchstone of the
preponderance of probabilities.
[8.3] The reliance was also placed on the provisions of sub-
section (6) of Section 158 of the Act, 1988, to contend that the
obligation is on the Tribunal to call for necessary documents so as to
satisfy as regards the involvement of the vehicle as well as the manner
in which the accident has taken place. The reliance was also placed on
sub-section (4) of Section 166 of the Act, 1988, in this regard. The
attention of this Court was invited to the observations made by the
Hon'ble Supreme Court in the case of Jai Prakash vs M/S. National
Insurance Co. & Ors. reported in 2010 (2) SCC 607 in this regard.
[8.4] On the issue of quantum of compensation, the learned
advocate, at the outset, has submitted that the cognate appeal
preferred by the original claimants, is mainly confined to the
enhancement of the amount of compensation under the conventional
heads and the loss of gratuity being completely lost sight of by the
Tribunal. Learned advocate has fairly submitted that there is no
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challenge in the present appeal as regards the amount of
compensation being determined under the head of dependency loss.
[8.5] On the issue of quantum of compensation under the
conventional heads, learned advocate has mainly relied upon the
decision of the Hon'ble Supreme Court in the case of National
Insurance Company Ltd. vs. Pranay Sethi and Others reported in
(2017) 16 SCC 680. It was submitted that the claimants mainly include
the husband of the deceased and their two minor children, and have
therefore, prayed for an amount of Rs.1,45,200/- towards the loss of
consortium. With regard to the amount of compensation being
awarded towards the expectancy of life and loss of estate is
concerned, learned advocate has urged this Court to consider it as
Rs.18,150/-. Similar prayer was sought for, as regards funeral expenses
is concerned, to be considered as Rs.18,150/-.
[8.6] Lastly, learned advocate has drawn our attention to the
evidence of the Head-Clerk of the School being examined by the
claimant at Exh. 20. Referring to the evidence of the said witness,
learned advocate has submitted that considering the remaining
tenure of the service of the deceased, who was indisputably working
as a Teacher in the High School, at the time of her retirement, she
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would have earned gratuity of an amount of Rs.1,28,700/- as deposed
by the said witness. Our attention was also invited to the calculation
proposed by considering her remaining length of service in this regard,
which is produced on record at Exh.26. The reliance was placed on the
decision of the Division Bench of this Court in the case of Oriental
Insurance Co. Ltd vs. Smitaben Jayendrabhai Patel reported in
2015 (0) ACJ 2366, more particularly, para-8 onwards. It was
submitted that the Division Bench has extended the difference in the
loss of gratuity to the extent of the amount of gratuity which was
already received in case of premature death. Learned advocate has
rightly pointed out that in such an event, the interest to be considered
on loss of gratuity may be awarded from the date of the judgment of
the Tribunal till its actual realization. Learned advocate has, therefore,
urged this Court to allow the appeal preferred by the original
claimants and to enhance the amount of compensation, which may be
awarded with interest and proportionate costs.
[9.] On the issue of negligence, in rejoinder, learned advocate
Ms. Hina Desai appearing for the appellant- S.T Corporation, has
reiterated that admittedly no eye witnesses have been examined by
the claimants. The panchnama, which is produced on record, cannot be
considered as a proof of involvement of the vehicle in the accident.
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Even otherwise, there was no intention on part of the driver to cause
the death of the deceased. On close scrutiny of the contents of the
panchnama, it suggests that the deceased was not careful and she
had, in fact, contributed to the occurrence of the accident. She has,
therefore, urged this Court to hold the deceased equally negligent
towards the occurrence of the accident.
[10.] Mr. Chintan. S. Shukla, learned advocate appearing for the
respondent- S.T. Corporation in the cognate appeal preferred by the
original claimant, has also addressed this Court on the issue of
negligence, in support of the arguments made by learned advocate
Ms. Hina Desai, in the appeal preferred by the S.T. Corporation, has
pointed out that, in fact, the close examination of the contents of the
panchnama produced by the claimant, clearly suggest that the
deceased was crossing the road and while she had reached in the
middle of the road, the accident had taken place. The only inference
which can be drawn from such panchnama is that, the deceased, in the
process of crossing the road, was not careful and vigilant, which had
contributed to the occurrence of the accident. He has, therefore,
supported the case of the S.T. Corporation to hold the deceased
equally negligent towards the occurrence of the accident.
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[10.1] On the issue of quantum of compensation, the learned
advocate Mr. C.S. Shukla has submitted that no cogent material is
produced on record as a proof of salary of the deceased.
[10.2] Disputing the aforesaid submissions of learned advocate
for the S.T. Corporation, Mr. Mohsin Hakim, learned advocate
appearing for the appellants-original claimants in the cognate appeal,
has invited our attention to the deposition of the Head Clerk of the
School, who has been examined as witness at Exh. 20. The reliance was
also placed on the document produced on the record at Page 119 of
the paper book. He has, therefore, submitted that considering the
salary slip produced on record, in absence of any challenge being
made by the S.T. Corporation with regard to quantum of
compensation, such a plea taken by the learned advocate for the
respondent-Corporation, may not be considered.
[10.3] Learned advocate Mr. C.S. Shukla appearing for the S.T.
Corporation has fairly submitted that a reasonable amount may be
considered towards the loss of gratuity, as prayed for, by considering
her service tenure. He has submitted that the S.T. Corporation being a
public utility, may not be saddled with an exorbitant amount under
the guise of loss of gratuity.
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[10.4] Disputing the aforesaid submissions of learned advocate
for the respondent-Corporation, learned advocate Mr. Hakim has,
once again, placed reliance upon Para- 7 of the document produced on
record at Exh. 26, whereby the proposed calculation of the gratuity
amount, to be realized, in case, if the deceased had survived for the
remaining service tenure, has been tendered on record. The aforesaid
document has been verified and proved through the evidence of the
said witness i.e., the Head Clerk of the School at Exh. 20.
[10.5] During the course of arguments, learned advocate for the
original claimants, while seeking enhancement under the head of loss
of consortium and other conventional heads, has placed reliance upon
the decision of the Hon'ble Supreme Court in the case of New India
Assurance Co. Ltd vs. Sonigra Juhi Uttamchand reported in 2025 (3)
SCC 23, to contend that the Constitutional Bench's decision in the
case of Pranay Sethi (supra), more particularly, Para 59.8, wherein the
Court has specified that the amount under the conventional heads is
subject to revision at the rate of 10% every 3 years. The Hon'ble
Supreme Court, in the aforesaid decision, has further clarified that
considering the principles laid down in the case of M.A. Murthy vs.
State Of Karnataka And Ors. reported in 2003 (7) SCC 517, once a
decision of the Supreme Court on the issue is pronounced, it is
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applicable to all the cases, irrespective of the stage of pendency
thereof, and it shall be assumed that the enunciation of principles by
the said decision, is in fact, from the inception. He has, therefore,
submitted that appropriately 10% of the amount determined by the
Constitutional Bench's decision in the case of Pranay Sethi (supra), as
recorded in Para 52, be revised in the present case. Learned advocate
has therefore urged to allow the cognate appeal preferred by the
claimants and to enhance the total amount of compensation from Rs.
14,92,800/- to Rs. 19,06,416/-.
[11.] We have heard learned advocates appearing for the
respective parties and have also perused the evidence produced on
record. We have also closely examined the findings and reasons
assigned by the Tribunal while deciding the issue of negligence,
quantum of compensation and liability in light of the said evidence.
Considering the arguments of learned advocates appearing for the
respective parties, the points for determination, which arise for our
consideration, are framed as under :
1. Whether the Tribunal committed any error in determining the
ratio of negligence in the facts of the case, and the evidence
brought on record?
2. Whether the Tribunal committed any error in determining the
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quantum of compensation to the tune of Rs.16,58,600/- in the
facts of the case and the evidence on record?
[12.] We have given thoughtful consideration to the findings
and reasons assigned by the Tribunal on the issue of negligence by
appreciating the evidence, more particularly, the FIR (Exh.28), the
panchnama (Exh. 29), the postmortem report (Exh.30) as well as
deposition of the claimant no.1(Exh.14) and the original opponent
no.1- driver of Bus at Exh.36. So far the contention of the learned
advocate for the appellant- S.T. Corporation seeking exoneration is
outrightly not entertained, since in our view, the claimants have
successfully established the factum of involvement of vehicle and
deceased having sustained fatal injuries on account of the negligence
of driver of S.T. Corporation, as is evident from the FIR produced on
record at Exh. 28 and the panchnama produced on record at Exh. 29.
Admittedly, the FIR has been lodged by the conductor of the
offending bus bearing Registration No. GJ-18-V-6109, who has
reported before the concerned police station about the incident,
whereby one lady being dashed with their vehicle, had expired. The
said FIR is registered against the driver of the S.T. Corporation, who
has been later on examined as witness by the appellant-Corporation
before the Tribunal at Exh.36. The only evidence disputing the
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involvement of the vehicle and the issue of negligence, as raised by
the S.T. corporation in the appeal preferred by them, is in the form of
the evidence of the said driver. On close appreciation of the said
evidence, though, in the examination-in-chief, the said witness has
disputed the involvement of the vehicle and any occurrence of the
accident. However, in his cross-examination, the said witness has
admitted the fact of complaint being registered against him, pursuant
to the disclosure of the accident as reported by the conductor of his
bus. He has also admitted the fact of being chargesheeted; however,
has clarified that he has been acquitted in the criminal case for the
offence alleged. In our view, the Tribunal has rightly not given
weightage to the evidence of the driver and has rightly appreciated
the police papers by arriving at a conclusion that the deceased had
sustained fatal injuries as being dashed with the ST Bus bearing
Registration No. GJ- 18- V-6109 by the original opponent no.1 .
[13. ] The seminal issue, which arises for consideration, is as to
whether the deceased being negligent has equally contributed to the
occurrence of accident. In this regard, on close reading of the
panchnama, in light of the deposition of driver of the bus, it transpires
that the spot of accident is identified and marked at a distance of 7
feet from the platform of the bus stop in the Northern direction and
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16 feet away from the platform of the bus in the Southern direction.
The width of the road is measured as 23 feet. As per the version of the
complainant in the FIR, it is stated that the bus had halted at Sandhana
Bus Stop and the passengers have boarded the bus and the driver had
started the bus from Sandhana Bus Stand and had hardly covered a
few distance when the bus had dashed with the lady on the road.
Considering the above aspect, the Tribunal has inferred that the driver
was driving the bus at moderate speed. The Tribunal has further noted
that the accident has taken place in the middle of the road, and has
therefore, found the driver of the ST bus negligent to the extent of
90% and of the deceased to the extent of 10%. On re-appreciation of
the panchnama, it is evident that the accident has taken place at the
intersection of the approach road and the National Highway. In the
cross-examination of the applicant no.1, it has transpired that the
deceased was a Teacher and was on her way to the morning session of
her School at Sandhana. Considering the spot of accident as evident
from panchnama, it can be inferred that the deceased had arrived at
Sandhana Bus Stop and was in process to cross the road when she was
dashed by the bus. Noticing the intersection of pickup road
approaching National Highway and pickup road having bus stop
platforms on either side, more degree of care and caution is expected
from drivers of public utility transport, where naturally the footfall of
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pedestrians are found more. At the same time, the deceased was also
expected to be careful while crossing the road. Considering the overall
evidence on record, applying the theory of res ipsa locutor, we do not
find any error, perversity or infirmity in the approach of the Tribunal in
evaluation of the evidence, while examining the issue of negligence of
driver as well as the deceased having contributed to the accident.
Hence, the appeal preferred by the ST Corporation, is without any
merits and is hereby dismissed.
[14.] This brings us to the issue of the quantum of
compensation being determined on the lower side. The enhancement
of the amount of compensation is sought for only under the heads of
loss of consortium, loss of estate and funeral expenses. Additionally,
the compensation is also sought for under the head of loss of gratuity.
As regards the amount of compensation under the conventional heads
to be awarded in motor accident cases are concerned, the
Constitutional Bench of the Hon'ble Supreme Court through landmark
judgment, in the case of Pranay Shethi (Supra), has settled the law in
para 52 onwards . The Court has held thus:
"52. As far as the conventional heads are concerned, we
find it difficult to agree with the view expressed in Rajesh:
Rajesh v. Rajbir Singh, (2003) 9 SCC 54. 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
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guidance for minor children. The head relating to loss of
care and minor children does not exist. Though Rajesh:
Rajesh v. Rajbir Singh, (2003) 9 SCC 54 refers to Santosh
Devi: Santosh Devi v. National Insurance Co. Ltd.,(2012) 6
SCC 421, 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 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."
Applying the aforesaid principles to the facts of the case on
hand, the claimants would be entitled to the benefit of aforesaid
ruling of the Hon'ble Supreme Court. Hence, prayer sought for
enhancement of the amount of compensation under the conventional
heads, is required to be reconsidered.
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[15.] In terms of the aforementioned judgment of the
Constitutional Bench of the Hon'ble Supreme Court, the conventional
heads determined were loss of estate, loss of consortium and funeral
expenses, which were calculated at Rs.70,000/- in all. Later, when the
various High Courts granted compensation under the head of loss of
consortium to each of the claimants, the matter once again arose for
consideration before the Hon'ble Supreme Court in the case of
Magma General Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram
reported in AIRONLINE 2018 SC 1249. The specific question that
arose for consideration before the Hon'ble Supreme Court as noted by
the Court, reads as:
"This special leave petition has been filed by the Insurance
Company to challenge the compensation awarded on
certain counts by the Punjab and Haryana High Court in
Nannu Ram v. Mayank Goel [Nannu Ram v. Mayank Goel,
2017 SCC OnLine P&H 4973] , to be contrary to the
Constitution Bench judgment in National Insurance Co. Ltd.
v. Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi,
(2017) 16 SCC 680 :(2018) 3 SCC (Civ) 248 : (2018) 2 SCC
(Cri) 205] ."
[16.] The Hon'ble Supreme Court in paragraph Nos.21 and 24,
has held as under:
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21. A Constitution Bench of this Court in Pranay Sethi
[National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC
680 :(2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] 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 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC
(Cri) 817 : (2014) 1 SCC (L&S) 149]
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.
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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. A few High Courts have awarded
compensation on this count [ Rajasthan High Court in
Jagmala Ram v. Sohi Ram, 2017 SCC OnLine Raj 3848 :
(2017) 4 RLW 3368; Uttarakhand High Court in Rita Rana
v. Pradeep Kumar, 2013 SCC OnLineUtt 2435 : (2014) 3 UC
1687; in Lakshman v. Susheela Chand Choudhary, 1996
SCC OnLine Kar 74 : (1996) 3 Kant LJ 570] . 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 [National Insurance Co. Ltd. v. Pranay Sethi,
(2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC
(Cri) 205] . 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."
[17.] Considering the aforesaid principles laid down by the
Hon'ble Supreme Court in the case of Magma General Insurance
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Company (supra) in the facts of the case on hand, each of the
claimants shall be entitled to compensation of Rs.48,400/- towards the
loss of consortium. Thus, the amount of compensation awarded under
the head of loss of consortium is enhanced from Rs. 15,000/- to Rs.
1,45,200/-. As regards, the amount of compensation under the head of
loss of estate is concerned, the same is reconsidered as Rs. 18,150/-
instead of Rs. 25,000/- as awarded by the Tribunal. The amount of
compensation awarded under the head of funeral expenses is
enhanced from Rs. 10,000/- to Rs. 18,150/-.
[18.] Having held so, we are now required to examine the
amount of compensation sought under the head of loss of gratuity.
We have carefully examined the evidence of the Head Clerk of the
School, who has been examined as witness by the claimant at Exh.20.
We have also closely scrutinized the various documentary evidence
viz. being admitted and proved as evidence. Upon evaluation of the
aforesaid evidence, it is established by the claimants that the
deceased was serving as a Teacher and was earning an amount of
Rs.11,050/- as monthly salary at the time of accident. It is also
established that the deceased was to retire in the year-2017 and
therefore, had 16 years of service left. The order of gratuity issued on
30.10.2007 is produced on record at Exh. 25, whereby admittedly the
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claimants have received an amount of Rs.1,28,700/-. However , the
aforesaid amount has been reduced on account of premature ending
of services of the deceased due to motor vehicular accident. Thus,
claimants having suffered loss due to the negligence of the
tortfeasors, are required to be appropriately compensated.
[18.1] We have appreciated the proposed amount of gratuity as
indicated in the computation provided by the concerned school under
the signature of the Principal of said school, as brought on record by
claimants at Exh. 26 and the same being verified and proved through
the evidence of the Head Clerk of school being examined as witness at
Exh.20. Considering the fact that the deceased passed away prior to
the implementation of the 6th pay commission from 01.06.2006 by the
State of Gujarat, we are inclined to accept the amount of Rs.
4,56,750/- which the deceased would have realised in case she had
completed her services. Since, the claimants have received an amount
of Rs. 1,28,700/- towards gratuity, the claimants are entitled to an
amount of Rs. 3,28,050/- as compensation towards the loss of gratuity.
As rightly submitted by the learned advocate for the claimants, the
interest to be awarded on such an amount of gratuity shall be from
the date of judgment and award passed by the Tribunal.
[19.] For the foregoing reasons, the amount of compensation
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of Rs.14,92,800/- is reconsidered and enhanced as under:
Under the Head of Compensation of Rs.
Loss of dependency 16,08,690/-
Loss of consortium 1,45,200/-
Loss of estate 18,150/-
Funeral expenses 18,150/-
Total Compensation [A] 17,90,190/-
Loss of Gratuity [B] 3,28,050/-
Total compensation [C] 21,18,240/-
Less 10% deduction towards 19,06,416/-
contributory negligence [D]
[20.] For the reasons recorded by us, the appeal of the S.T.
Corporation being First Appeal No. 2084 of 2013, is dismissed. The
cognate appeal of the claimants being First Appeal No. 1505 of 2013,
is hereby allowed. The impugned judgment and award dated
29.09.2012 passed by learned Motor Accident Claims Tribunal (Aux.),
Kheda at Nadiad, passed in M.A.C.P. No. 662 of 2001, is hereby
modified, with following directions :
(a) The claimants are entitled to a total amount of
compensation to the tune of Rs. 19,06,416/-, to be realised
jointly and severally from original opponents no.1 and 2.
(b) The claimants are entitled to additional compensation
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under the head of loss of gratuity of Rs. 3,28,050/- with the
interest at the rate of 7.5% from the date of impugned
judgment and award till it's actual realisation .
(c) As regards compensation under the remaining heads viz.
Rs. 17,90,190/-, the same shall be recovered with interest at the
rate of 7% from the date of filing the claim petition till it's
actual realization.
(d) Let the enhanced amount of compensation with interest
and proportionate cost be deposited by the S.T. Corporation
within a period of 6 weeks from the date of receipt of this
order.
(e) On deposit of such amount, the Tribunal shall be at liberty
to proceed with release and disbursement of such amount, as
per recognised mode, in favour of claimants in proportion of
their share as considered by Tribunal.
(f) Let such exercise be undertaken by the Tribunal within a
period of two weeks from the date of deposit of the award
amount.
[21.] With these observations, both the appeals stand disposed
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of. Registry is directed to send back records and proceedings along
with writ of this judgment to the concerned Tribunal forthwith .
(SANGEETA K. VISHEN,J)
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
