Himachal Pradesh High Court
Administrative Officer vs Unknown on 9 December, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 9th DAY OF DECEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE SANDEEP SHARMA
FIRST APPEAL FROM ORDER NO.150 OF 2016
Between:
NATIONAL INSURANCE COMPANY
LIMITED, DIVISION NO.10, FLAT NO.101
TO 106, N.1 BMC HOUSE CONNAUGHT
PLACE, NEW DELHI-110001, BRANCH K.
B. DHARAMSHALA, DISTRICT KANGRA,
H.P.(POLICY NO.2380429) THROUGH ITS
ADMINISTRATIVE OFFICER, NATIONAL
INSURANCE COMPANY LIMITED,
DIVISION OFFICE, HIMLAND HOTEL,
CIRCULAR ROAD, SHIMLA-17001.
....APPELLANT
(BY SH. JAGDISH THAKUR, ADVOCAE)
AND
1. SH. HARNAM SINGH S/O LATE SH.
RUMAL SINGH; AND
2. SMT. VIMLA DEVI WIFE OF HARNAM
SINGH;
BOTH RESIDENT OF VILLAGE
CHHATROLI, P.O.JASSUR, TEHSIL AND
POLICE STATION, NURPUR, DISTRICT
KANGRA, H.P.
3. SUB. MOHINDER SINGH SON OF
SH.GIRDHARI LAL, R/O VILLAGE
HARA, TEHSIL DHARKALAN, DISTRICT
GURDASPUR(PB) AT PRESENT
VILLAGE DHAMETA, TEHSIL
FATEHPUR, DISTRICT KANGRA, H.P.
OWNER OF MARUTI ALTO CAR
BEARING NO. PB-35-J-0362.
4. SURAJKANT SON OF SH. DALJIT
KUMAR, R/O VILLAGE DHAMETA,
TEHSIL FATEPUR, DISTRICT KANGRA,
H.P. OFFICE ADDRESS BTC
EDUCATION TRAINING CENTRE, RAJA
KA BAGH, NURPUR, DISTRICT
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2
KANGRA, HP DRIVER OF MARUTI CAR
BEARING NO. PB-35-J-0362.
....RESPONDENTS
(BY SH. H.S.RANGRA, ADVOCATE FOR
.
R-1 & 2).
(BY SH. RAJAN KOHAL, ADVOCATE FOR
R-3 & 4).
CROSS OBJECTIONS NO. 92 OF 2016
Between:
NATIONAL INSURANCE COMPANY
LIMITED, DHARAMSHALA, THROUGH ITS
DIVISIONAL OFFICE HIMLAND HOTEL,
CIRCULAR ROAD, SHIMLA-1(H.P).
....APPELLANT/RESPONDENT
(BY SH. JAGDISH THAKUR, ADVOCAE)
AND
1. SH. HARNAM SINGH S/O SH. RUMAL
SINGH; AND
2. SMT. VIMLA DEVI WIFE OF HARNAM
SINGH;
BOTH RESIDENT OF VILLAGE
CHHATROLI, P.O.JASSUR, TEHSIL
NURPUR, DISTRICT KANGRA, H.P.
....OBJECTORS/PETITIONERS
3. SUB. MOHINDER SINGH SON OF
SH.GIRDHARI LAL, R/O VILLAGE
HARA, TEHSIL DHARKALAN, DISTRICT
GURDASPUR(PB) AT PRESENT
VILLAGE DHAMETA, TEHSIL
FATEHPUR, DISTRICT KANGRA, H.P.
OWNER OF MARUTI ALTO CAR
BEARING NO. PB-35-J-0362.
4. SURAJKANT SON OF SH. DALJIT
KUMAR, R/O VILLAGE DHAMETA,
TEHSIL FATEPUR, DISTRICT KANGRA,
H.P. AT PRESENT BTC EDUCATION
TRAINING CENTRE, RAJA KA BAGH,
NURPUR, DISTRICT KANGRA, HP
DRIVER OF MARUTI CAR BEARING NO.
PB-35-J-0362.
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....RESPONDENTS
(BY SH. H.S.RANGRA, ADVOCATE FOR
OBJECTORS/PETITIONERS.
(BY SH. RAJAN KOHAL, ADVOCATE FOR
.
R-3 & 4).
Whether approved for reporting? Yes.
This appeal coming on for orders this day, the Court passed the following:
JUDGMENT
FAO No.150 of 2016
By way of instant appeal filed under Section 173 of the
Motor Vehicles Act ( for short 'Act'), challenge has been laid to
award dated 5.11.2015, passed by Motor Accident Claims Tribunal-
II, Kangra at Dharamshala, District Kangra, H.P., in MACP No.87-N/
II/ 2013/ 2009, whereby sum of `17,50,000/- alongwith interest at
the rate of 8% per annum from the date of filing of the petition till
realization, came to be awarded in favour of respondents No.1 and
2 (hereinafter referred to as the 'claimants') on account of death of
Ravinder Kumar in an accident. Since, liability to pay aforesaid
compensation came to be saddled on the appellant-insurance
company, it has approached this Court in the instant proceedings.
2. Precisely, the facts as emerge from the record are that
the claimants filed a claim petition under Section 166 of the Motor
Vehicles Act, praying therein for compensation to the extent of
`23,00,000/- on account of death of Sh. Ravinder Kumar being his
legal heirs. Claimants claimed that on 24.7.2008, at about 7.40 PM,
while deceased Ravinder Kumar was coming from Pathankot to
Jassur on his motorcycle alongwith his friend, a Alto car bearing
registration No.PB-35-J-0362 coming from opposite side being
.
driven in rash and negligent manner by respondent No.4, hit the
motorcycle, as a consequence of which, Ravinder Kumar and his
friend fell down and sustained injuries. Unfortunately, Ravinder
Kumar, who was referred to CMC Ludhiana, succumbed to his
injuries on 26.7.2008. The matter with regard to the accident was
reported to the police, as a result of which, a case under sections
279 and 337 of IPC came to be registered against respondent No.4.
Claimants claimed that deceased aged 25 years was self employed
and was running two wheeler repair shop and was earning `20,000-
25,000 per month. Claimants claimed that since they were fully
dependent upon the deceased Ravinder Kumar, they are entitled to
compensation on account of his untimely death.
3. Respondents No.3 and 4 being owner and driver of the
vehicle denied that respondent No.4 was driving the Alto car in rash
and negligent manner and contended that deceased was riding
motorcycle in rash and negligent manner and dashed against the
car.
4. Appellant-insurance company refuted the claim of the
claimants on the ground that ill-fated vehicle was being driven in
violation of the terms and conditions of the insurance policy. On
merits, while denying the age and income of the deceased,
appellant-insurance company claimed that accident did not occur
due to rash and negligent driving of respondent No.4 and as such, it
cannot be held liable to pay compensation being insurer.
.
5. On the basis of pleadings adduced on record by the
respective parties, Tribunal below vide order dated 5.12.2009
framed following issues:-
1. Whether the death of deceased was caused due to
rash and negligent driving of Maruti Car being No.PB-
35-J-0362 by the respondent No.2 on the public
highway at Pathankot-Jassur Road on 24.7.2008 at
about 7.40 PM and struck against the motorcycle of
the deceased bearing No. HP-38-A-8845as alleged?
OPP.
2. If issue No.1 is proved in affirmative to what amount
of compensation the petitioners are entitled to and
from whom? OPP.
3. Whether the driver of the offending vehicle was not
holding valid and effective driving licence at the time
of accident? OPR.
4. Whether the offending vehicle was not insured at the
time of accident? OPR.
5. Whether the vehicle was being plied without fitness
certificate, route permit and thereby violated the
terms and conditions of the insurance policy? OPR
6. Whether the petition is not maintainable, as alleged?
OPR.
7. Relief:-
6. Subsequently, learned Tribunal below vide impugned
award dated 5.11.2015 held claimants entitled to compensation to
the tune of `17.50,000/-, but since liability came to be fastened
upon the appellant-insurance company, it has approached this
Court in the instant proceedings.
7. Having heard learned counsel representing the parties
.
and perused the material available on record, this Court finds that
primarily challenge to the award impugned in the instant
proceedings has been laid on the ground of quantum.
8. Mr. Jagdish Thakur, learned counsel representing the
appellant-insurance company, vehemently argued that though in
the case at hand claimants claimed that at the time of alleged
accident monthly income of the deceased was `25,000/-, but such
fact never came to be proved by way of leading cogent and
convincing evidence and as such, tribunal below erred while
considering the income of the deceased as `15,000/. Mr. Thakur,
further contended that it is well settled by now that in the absence
of specific proof with regard to income, Court while ascertaining
monthly income is required to resort to the provisions of Minimum
Wages Act.
9. Mr.H.S.Rangra, learned counsel representing the
claimants while fairly admitting factum with regard to non-
production of record, if any, with regard to income, submitted that
since it is not in dispute that at the time of death deceased
Ravinder Kumar was running two wheeler repair shop, tribunal
below rightly assessed his income to the tune of `15,000/-.
However, this Court may not agree with Mr. H.S.Rangra, Advocate
for the reason that there is no evidence, worth credence, available
on record suggestive of the fact that at the time of the accident
deceased Ravinder Kumar was earning sum of `25,000/- and as
.
such, tribunal below ought to have resorted to the provisions of
Minimum Wages Act, which have been not applied in the case at
hand. Having taken note of the fact that deceased Ravinder Kumar
was a technical person, this Court deems it fit to consider his
monthly income as `10,000/- instead of `15,000/- and accordingly
award passed by tribunal below on this count needs to be modified.
10. Mr. Jagdish Thakur, learned counsel representing the
appellant-insurance company while inviting attention of this Court
to the judgment rendered by Hon'ble Apex Court in National
Insurance Company Limited vs. Pranay Sethi and others, AIR 2017,
SC 5157, argued that amount awarded by tribunal below under
conventional heads also needs to be reviewed for the reason that
no amount, if any, could be granted on account of love and
affection. He further argued that only sum of `40,000/- and
`15,000/- could have been awarded for the loss of consortium and
funeral expenses, whereas in the case at hand, sum of `50,000/-
has been awarded on account of loss of consortium.
11. While placing reliance upon the aforesaid judgment
passed by Hon'ble Apex Court in Pranay Sethi case (supra), Mr.
H.S.Rangra, learned counsel representing the claimants, contended
that some amount on account of loss of estate is required to be
awarded, but in the case at hand that aspect of the matter has
been totally ignored by the tribunal below. He also argued that sum
of `10,000/- awarded by tribunal below on account of funeral
.
expenses needs to be enhanced to `15,000/-.
12. While inviting attention of this Court to the judgment
rendered by Hon'ble Apex Court in Magma General Insurance Co.
Ltd. v. Nanu Ram and Ors., Civil Appeal No. 9581 of 2018 decided on
18.9.2018, learned counsel representing the claimants contended
that sum of `40,000/- each is required to be awarded in favour of
the claimants on account of filial consortia, which as per aforesaid
judgment ought to have been `40,000/- each. Hon'ble Apex Court
in Magma General Insurance Co. Ltd. (supra) has held as under:
"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 spouse.
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."
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 54 4 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 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.
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 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."
13. Besides above, this Court finds that claimants are also
entitled to an addition of 40% on account of future prospects in
terms of the judgment passed in Pranay Sethi case(supra), wherein
it has been held as under:-
"59. In view of the aforesaid analysis, we proceed to record our
conclusions:-
(i) The two-Judge Bench in Santosh Devi should have been well
advised to refer the matter to a larger Bench as it was
taking a different view than what has been stated in Sarla
Verma, a judgment by a coordinate Bench. It is because a
coordinate Bench of the same strength cannot take a
.
contrary view than what has been held by another
coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma
Kumari, which was delivered at earlier point of time, the
decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual
salary to the income of the deceased towards future
prospects, where the deceased had a permanent job and
was below the age of 40 years, should be made. The
addition should be 30%, if the age of the deceased
was between 40 to 50 years. In case the deceased was
between the age of 50 to 60 years, the addition should be
15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed
salary, an addition of 40% of the established income should
r be the warrant where the deceased was below the age of 40
years. An addition of 25% where the deceased was between
the age of 40 to 50 years and 10% where the deceased was
between the age of 50 to 60 years should be regarded as
the necessary method of computation. The established
income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for
personal and living expenses, the tribunals and the courts
shall be guided by paragraphs 30 to 32 of Sarla Verma
which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table
in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying
the multiplier.
(viii) 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
aforesaid amounts should be enhanced at the rate of 10% in
every three years."
14. Since, deceased was bachelor at the time of the death,
50% of his income is liable to be deducted towards his personal
expenses and as such, while taking monthly income of the
deceased as `10,000/- per month, total loss of dependency qua
claimants can be assessed as under:-
Amount
.
(Rs.)
Established monthly income of 10000
deceased
Addition of 40% i.e. 10000x40/100 4000
Net monthly income 10000+4000 14000
1/2nd deducted towards personal 7000
expenses
Net monthly income 7000
Annual loss of dependency 15,12,000
=7000x12x18
15. Since, the learned Tribunal below has not awarded any
amount on account of loss of estate, claimants are also entitled to
sum of `15,000/- on account of loss of estate as per Pranay Sethi
case (supra). Similarly, claimants are also entitled to `15,000/- on
account of funeral expenses in place of `10,000/-.
16. In view of detailed discussion made hereinabove, award
passed by Tribunal below is modified in the following manners:-
Head Amount
(Rs.)
Loss of dependency 15,12,000
Loss of estate 15,000
Funeral charges 15,000
Filial consortium payable to the claimants 80,000
(40,000 each)
Transportation charges 20,000
Total compensation 16,42,000
17. Consequently, in view of detailed discussion made
herein above and law laid down by the Hon'ble Apex Court, present
appeal is partly allowed and impugned Award passed by learned
Tribunal below is modified to the aforesaid extent only.
18. All pending miscellaneous applications, if any, are
.
disposed of. Interim directions, if any, are vacated.
Cross Objections No.92 of 2016
In view of the judgment passed in FAO No.150 of 2016,
the cross-objections are disposed of accordingly.
(Sandeep Sharma),
Judge
9th December, 2021
(shankar)
