Oriental Insurance Company Ltd vs Rupa Devi And Others
2023 Latest Caselaw 13658 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

FAO No. 77 of 2013 Reserved on : 23.06.2023 Decided on : 15.09.2023

.

           Oriental Insurance company Ltd.                                           .......Appellant

                                                         Versus





           Rupa Devi and others                                                      ...Respondents





           Coram

The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes. For the appellants:

                                    r                 Mr.   G.C.  Gupta,                       Senior
                                                      Advocate with Ms.                        Meera

                                                      Devi, Advocate.
           For the respondents:                       Mr. Umesh Kanwar, Advocate
                                                      for respondents No. 1 to 5.



                                                      Mr.     Vikrant  Chandel,
                                                      Advocate, for respondents
                                                      No.6 to 10 & 13.




           Virender Singh, Judge.





                            Appellant-Oriental               Insurance           Company             has

preferred the present appeal under Section 173 of the Motor

Vehicles Act, 1988, as amended up to date, (hereinafter

referred to as 'the M.V. Act'), against the award dated

01.09.2012, passed by the learned Motor Accident Claims

Tribunal-cum-Presiding Officer, Fast Track Court, Mandi,

District Mandi, H.P. (hereinafter, referred to as the 'learned

Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

Tribunal'), in Claim Petition No.62 of 2005 (86/2004), titled

as Rupa Devi & Others vs. The Oriental Insurance

Coompany Limited and others.

.

2. By way of award dated 01.09.2012, the learned

Tribunal has allowed the claim petition filed by respondents

No.1 to 5, by awarding a sum of Rs.4,90,000/-, along with

interest @ 7.5% per annum, from the date of filing of the

petition, till deposit. The ultimate liability to pay the

amount of compensation has been put on the appellant-

Insurance Company.

3. The parties to the present lis are hereinafter

referred to, in the same manner, as were, referred to, by the

learned Tribunal.

4. Brief facts, leading to the filing of present

appeals, before this Court, may be summed up as under:-

4.1. Petitioners, being widow, son and daughters of

deceased Nikka Ram, have filed the claim petition under

Section 166 of the M.V. Act, against the respondents, being

Insurer, owner and driver of vehicle No.HP40-5537

(hereinafter referred to as the 'offending vehicle').

4.2. During the pendency of the lis before the learned

Tribunal, respondent No.2 had died and had been succeeded

by respondents 2(a) to 2(g).

4.3 According to the petitioners, deceased Nikka

Ram was travelling in the offending vehicle from Kangra to

Kullu. The offending vehicle was being driven by

.

respondent No.3, at the relevant time, in a very excessive

speed, and in a highly rash and negligent manner.

4.4. When, the offending vehicle, being driven by

respondent No.3, in a rash and negligent manner, reached

at a place, known as Lakhwan on Kalkhar-Ratti Road, the

driver lost the control over it and the offending vehicle

rolled down from the road and fell into a deep gorge.

4.5. Consequently, Nikka Ram, sustained fatal injuries

and expired. The information regarding the accident was

given to the police of Police Station Balh, where, FIR

No.41/2004, was registered.

4.6. Age of Shri Nikka Ram, at the time of his death,

has been pleaded, as 64 years and his profession has been

mentioned, as truck driver. His earnings have been pleaded

as Rs.9,000/- per month. The petitioners have pleaded

about their bright past and bleak future.

5. On the basis of assertions, so made, a prayer has

been made to allow the petition and to award the

compensation to the petitioners, on account of death of Shri

Nikka Ram, in the said accident, involving the offending

vehicle.

6. When put to notice, the claim petition has been

.

contested only by respondents No.1 and 2, whereas,

respondent No.3, has not opted to contest the petition. As

such, he was proceeded against exparte.

7. Respondent No.1-Insurance Company has filed

its reply, by taking the preliminary objections that the driver

of the offending vehicle was not holding a valid and

effective driving licence; and the offending vehicle was

being permitted to ply, in violation of the terms and

conditions of the Insurance policy.

8. On merits, the factum of accident has been

admitted, however, rest of the contents of the petition, have

been denied, mainly, for want of knowledge.

9. Respondent No.2 has filed his separate reply, in

which, the factum of accident and registration of FIR, as

contained in paras 8 and 9 of the claim petition, have been

admitted and rest of the allegations have been denied. In

addition to this, he has denied the allegations of rash and

negligent driving against respondent No.3.

10. Thus, the respondents have prayed for the

dismissal of the claim petition.

11. From the pleadings of the parties, the following

issues were framed by the learned Tribunal vide order dated

02.05.2008:-

.

1. Whether deceased Nikka Ram died on 28.01.2004, at about 2.30 p.m., at Lakhwan, due to rash and negligent driving of Bus No.HP40-5537, by respondent No.3 as

alleged? OPP.

2. Whether the petitioners are entitled for the compensation amount, If so, to what extent and from whom? OPP.

3. Whether the driver of vehicle involved in the accident was not having valid and effective driving licence as alleged? OPR-1.

4. Whether there was violation of terms and

conditions of insurance policy on the part of

respondent Nos. 2 and 3 and thus respondent No.1 is not liable to pay any amount? OPR-1.

5. Relief.

12. Thereafter, the parties to the lis were directed to

adduce evidence.

13. After the closure of evidence and after hearing

learned counsel for the parties, the learned Tribunal has

allowed the petition and awarded the compensation, as

referred to above.

14. Feeling aggrieved from the said award, by virtue

of which, liability to pay the amount of compensation, has

been fastened upon Insurance Company, the present appeal

has been filed by Insurance Company before this Court.

The award has been assailed, mainly, on the ground that

the findings of the learned Tribunal on issue No.3 are wrong

and contrary to the facts proved on record.

15. According to the Insurance Company, it has been

.

proved by it that the driver of the offending vehicle was not

holding a valid and effective driving licence, at the relevant

time. Wrong inference has been drawn from cross-

examination of RW-5, as well as, from the statement of

RW-3. While deciding issue No.3, according to the

appellant, learned r Tribunal has wrongly held that

respondent No.3 was holding a valid and effective driving

licence.

16. Findings of the learned Tribunal, on issue No.1

and 2, have also been assailed, as the petitioners could not

prove that the accident had taken place, due to rash and

negligent driving of respondent No.3. According to the

appellant, mere registration of the FIR under Sections 279,

337 IPC, is not sufficient to conclude that respondent No.3

was driving the offending vehicle in a rash and negligent

manner.

17. Similarly, according to the appellant, learned

Tribunal has applied the wrong multiplier, as the age of

Nikka Ram was 64 years and the petitioners were not

dependent upon him.

18. On the basis of the above, a prayer has been

made to allow the appeal.

19. In order to decide the controversy involved in the

.

present case, it would be just and appropriate for this Court

to discuss the oral, as well as, documentary evidence

adduced by the parties, before the learned Tribunal.

20. After framing of issues, the petitioners have

examined Dr. Hemant Kapoor, Medical Officer, Zonal

Hospital, Mandi,r as PW-1, who has conducted the

postmortem examination of the dead body of Nikka Ram

and proved the copy of the postmortem report, as Ex.PW-

1/A. He has categorically stated in the examination-in-chief

that the dead body was brought by the Police with the

history of death in a road side accident.

21. PW-2, Devender Kumar, has proved the copy of

FIR No.41/2004, dated 28.1.2004, registered under Sections

279, 337 and 304-A IPC.

22. Petitioner No.2, Dila Ram, appeared in the

witness-box, as PW-3, and filed his affidavit, as Ex.PW-3/A,

which is based upon the assertions, as made in the claim

petition. In the cross-examination, this witness has admitted

that the accident, in question, has not taken place in his

presence.

23. PW-4, Nain Singh, has been examined, as the

eye witness of the accident. According to him, on

28.1.2004, at about 2.35 p.m., he was present at a place

.

known as Lakhwan, on Kalkhar-Ratti road and the accident,

in question, had taken place in his presence. He has

levelled the specific allegations against respondent No.3, by

stating that the offending vehicle, was being driven by him,

in excessive speed and in a rash and negligent manner.

    24.        Elaborating
                       r       his   statement,     he      has      further

deposed that due to the said fact, the driver lost his control

over the offending vehicle and it went off the road and fell

into a deep gorge. Not only this, he has also deposed that

the road, at the site of accident, was wide open.

25. In the cross-examination by learned counsel

appearing for respondent No.2, this witness has stated that

he is working, as a stone cutter. The offending vehicle was

coming from Kalkhar to Mandi side. He has also disclosed

the number of the offending vehicle as HP40-5537. He has

further deposed that at the time of accident, he was

returning back to his house.

26. In the cross-examination, by learned counsel

appearing for respondent No.3, this witness has deposed

that his statement was not recorded by the Police.

Although, the Police has visited the spot, in his presence,

but, he has not disclosed to the Police that the accident, in

question, has taken place, in his presence. House of the

.

deceased was situated, at a distance of about 40-50

kilometers, from the house of this witness. He has further

deposed that after the accident, he has not met with the

family members of the deceased. However, the legal

representatives of deceased are known to him. One of his

sons is driver, by profession at Sundernagar. This witness

has also deposed that he has not been summoned. Lastly,

he has also deposed that he does not know, as to what has

been mentioned, in the affidavit Ex.PW-4/A.

27. PW-5, Mansha Ali, deposed about the fact that

deceased Nikka Ram, was deputed by him, as driver at

truck No.HP33-0786 and he was being paid Rs.7,000/-, per

month, as salary. He has proved the salary slip of deceased

as Ex.PW-5/B.

28. To rebut this evidence, respondent No.2, has

examined RW-1 Rakesh Kumar, Criminal Ahlmad, Court No.3

Mandi, who has proved the copy of the driving licence of

Satish Kumar, as Ex.RW-1/A. According to him, this licence

is valid for HTV upto 7.9.2009. Learned counsel for the

Insurance Company, as well as, the learned counsel for the

petitioners, have not cross-examined this witness.

29. Respondent No.2(a) Rajeshwar Singh, while

.

appearing in the witness-box, as RW-2, has deposed that, at

the relevant time, Satish Kumar was deputed, as driver in

the offending vehicle. He was deployed, in the month of

March, 2000, as driver of offending vehicle. At the time of

deployment of Satish Kumar as driver, his driving licence

was checked and the same was also confirmed from

licensing authority. Licence was found to be genuine. The

driving test was also conducted and thereafter, he was

deputed as driver. He has also proved the other documents

of the vehicle as Ex.RW-2/A to Ex.RW-2/E.

30. In the cross-examination by learned counsel

appearing for the petitioners, this witness has also admitted

that he was not present, at the time of accident, as such, he

is not in a position to tell, as to how, the accident, in

question, had taken place. He has admitted that

respondent No.3, is facing the trial under Section 304-A IPC.

He has denied that the offending vehicle was being plied by

respondent No.3, in a rash and negligent, manner.

31. In the cross-examination, by Insurance Company,

this witness has deposed that respondent No.3, had left the

job, after the accident. The driving licence of respondent

No.3 was verified from the office of Sub Divisional

Magistrate, Kangra, in the month of March 2000. However,

.

no certificate has been obtained from the said office. This

witness could not disclose about the office, from where, the

original licence was issued.

32. This witness has admitted that in 3-4 cases,

liability has been fastened upon the owner, due to the fact

that the driving licence is not valid and effective one.

Volunteered that the said orders have been assailed by

them in the High Court. HTV licence of respondent No.3

was issued from Kangra. He has feigned his ignorance that

the fake licence has been renewed by the authorities at

Kangra.

33. RW-3 Anil Kumar, has brought the relevant record

pertaining to the driving licence of Satish Kumar,

respondent No.3. Duplicate licence bearing No.3581, dated

10.04.1997, has been issued from their office, on the basis

of the fact that the original was deposited. The number of

the original licence is S/33710, which was valid upto

10.04.2000. Further endorsement of 'Heavy Motor Vehicle'

was made. In the original record, there is no entry, with

regard to the fact, that from where the original licence has

been issued. Further, there is entry, in the record, with

regard to the driving licence of Satish Kumar, by way of

entry No.S/33710.

.

34. According to this witness, no driving licence was

issued, in the series of S/33710, by their office. Only

endorsement of HPMV has been done by their office. No

endorsement with regard to the PSV has been made. The

licence was thereafter renewed for HPMV from 25.4.2003 to

24.4.2006, vide serial No.14870. In the cross-examination,

by respondent No.2, this witness has admitted that the

HPMV licence is valid for transport vehicle. He has further

deposed that Satish Kumar was having HPMV licence.

35. Satish Kumar, respondent No.3, has been

summoned by the Insurance Company, as RW-4. According

to him, at the time of accident, he was driving the vehicle.

He has brought his original driving licence, which was

issued from Kangra. He obtained the licence from Licensing

Authority, Una, in the year 1976-77. The said licence was

deposited with the MLO Kangra. He has further deposed

that his original licence has been damaged, as such, he has

got issued the duplicate licence.

36. In his cross-examination, by the petitioner, this

witness has admitted that he is facing trial under Sections

279, 337 IPC, pertaining to the accident. In the cross-

examination, by respondent No.2, this witness has deposed

that prior to deployment, as driver, on the offending vehicle,

.

he was working, as driver for the last 15 years. Prior to

deputing him as driver, on the offending vehicle, the owner

had conducted his driving test and also checked his driving

licence.

37. RW-5, Sanjay Kumar, Junior Assistant, office of

Registering and Licensing Authority, Una, has deposed that

he has brought the relevant record. The office used to start

the series for issuance of the licence from Serial No.1, in the

month of April. From the year 1982 to 1984, no licence,

bearing No.S/33710, in the name of Satish Kumar son of

Jaisi Ram, has been issued, by their office. In the cross-

examination, he has admitted that in District Una, there are

three Sub Division/Licensing Authority and one RTO office.

38. This is the entire evidence led by the parties to

the petition.

39. Learned Tribunal, in the present case, has

negated the plea of the Insurance Company that the driver

of the offending vehicle was not having a valid and effective

driving licence and the offending vehicle was being

permitted to ply in violation of the terms and conditions of

the insurance policy.

40. The learned Tribunal, while deciding issues No.3

.

and 4, has elaborately discussed the evidence, so adduced

by the parties. When, the onus has been put on the

Insurance Company, to prove issues No.3 and 4, as such,

the Insurance Company, was bound to prove the said issues

to the satisfaction of the learned Tribunal.

41. When, the driver has examined Rakesh Kumar,

Criminal Ahlmad, as RW-1, who has proved, the photocopy

of the licence of Satish Kumar, as Ex.PW-1/A, no cross-

examination has been done, by the learned counsel

appearing for the Insurance Company. Meaning thereby,

the authenticity of the said document has not been disputed

by the Insurance Company.

42. RW-3, Anil Kumar, from the office of Motor

Licensing Authority, Kangra, has been examined by the

Insurance Company. From the testimony of this witness, the

Insurance Company has proved the duplicate licence, which

has been issued, in the name of Satish Kumar (driver) and

the reference of the same, has been made, in the relevant

Register at Sl. No.3581, dated 10.04.1997.

43. In addition to this, this witness has also deposed

that the original licence bearing No.S/33710, was deposited

with them, which was valid upto 10.04.2000. Thereafter,

.

the endorsement, with regard to the 'Heavy Passenger

Motor Vehicle', was made in it. This witness has no where

stated that the licence, on the basis of which, the duplicate

licence was issued, was not genuine.

44. No inference could be drawn from the deposition

of this witness, qua the fact that their office had not issued

any driving license of the series S/33710. Driver Satish

Kumar, when, appeared in the witness-box, as RW-4, has

categorically deposed that his first licence was issued from

Una. He has been examined by the Insurance Company.

When, the Insurance Company has summoned the driver, as

its witness, then, it was for the Insurance Company to prove

the details of the Licensing Authority, from where, the

original licence was issued.

45. This witness has simply stated that his first

licence was issued from Una. When, a party summoned a

witness, then, whatsoever, deposed by the said witness in

the examination-in-chief, the said party is bound by those

deposition. This witness has clearly deposed that his

licence was issued, in the year 1976-77 and the same was

deposited by him, in the office of MLO, Kangra, as the same

has been damaged. As such, he has got issued the

duplicate licence from Kangra.

.

46. Learned Senior counsel appearing for the

Insurance Company could not satisfy the judicial conscience

of this Court, as to how, the Insurance Company could

wriggle out from the deposition of the witness, that too,

which has been made by him in the examination-in-chief.

47. Similarly, by examining RW-5, the Insurance

Company could not probabilize that the driving license,

which, respondent No.3, has deposited with MLO, Kangra,

was fake, because, this witness has simply stated that he

has brought the relevant record from RLA, Una and on the

basis of the said record, he has deposed that no licence

bearing No.S/33710, was issued, in the name of Satish

Kumar. He has also deposed that there are three Sub-

Division/Licensing Authority and one RTO office, in District

Una. In such situation, non-examination of the records of

other Sub Division/Licensing Authority, as well as, RTO

Office, is fatal to the case of the Insurance Company.

48. Hon'ble Apex Court in National Insurance Co.

Ltd. versus Swaran Singh & others, reported in AIR

2004 Supreme Court 1531, has held that it is for the

insurer to prove and plead that the owner has committed

the breach of the insurance policy and driver was not

having the valid and effective driving licence. Relevant

.

paragraph 105(iii) of the judgment is reproduced as under:

"105. (iii) The breach of policy condition e.g.

disqualification of driver or invalid driving licence of the driver, as contained in sub- section (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer.

Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against

either the insured or the third parties. To avoid its liability towards insured, the insurer

has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly

licensed driver or one who was not disqualified to drive at the relevant time."

49. Similarly, in Pepsu Road Transport

Corporation versus National Insurance Company,

reported in (2013) 10 Supreme Court Cases 217, the

Hon'ble Supreme Court has held that it is for the Insurance

Company to prove that the insurer has committed willful

breach of the insurance policy. Relevant paragraph 10 of

the judgment, is reproduced, as under:

"10. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed.

Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the

.

vehicle is concerned, when he hires a driver,

he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If

satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the

extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at

the time of insurance of the vehicle or thereafter the insurance company requires

the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the

licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the

licence from the licensing authority. That is what is explained in Swaran Singh case. If

despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate

verification, then the insured will be at fault and, in such circumstances, the Insurance Company is not liable for the compensation."

50. Judging the facts and circumstances of the

present case, in the light of the decision of the Hon'ble Apex

Court, as referred to above, the Insurance Company, has

miserably failed to prove the willful breach of the Insurance

Policy, by the owner of the offending vehicle.

51. The evidence of the Insurance Company is too

.

short to hold that the licence, which was deposited by

respondent No.3 with MLO, Kangra, which, according to him,

was issued from Una, was not genuine. Neither RW-3, has

deposed, in this regard nor this fact has been probabilized

from the testimony of RW-5 that the licence bearing

No.S/33710, was not genuine.

52. It has rightly been argued by learned counsel

appearing for the driver that possibility of issuance of

licence bearing No.S/33710, by other Licensing Authority/

RTO, cannot be ruled out.

53. From the testimony of RW-5, it cannot be

concluded that the licence bearing No.S/33710, issued in

the name of Satish Kumar, was not issued by the Licensing

Authority, other than RLA, Una, from where, RW-5 has

brought the record. When, RW-5 has categorically stated

that in District Una, there are three Sub-Division/Licensing

Authority and one RTO Office, then, it was for the Insurance

Company to summon the record from those authorities and

rule out the possibility of issuance of licence No.S/33710, by

any of the authorities.

54. Heavy onus has been put on the Insurance

Company to prove this fact, which, it has miserably failed to

discharge. As referred to above, respondent No.3-Satish

.

Kumar, has been summoned, as a witness, by the Insurance

Company and whatever deposed by him, in the witness-box,

cannot be doubted, by the party, who had summoned the

said witness. The party, who has summoned, the witness, is

bound by the deposition, as made by him.

55. If the entire statement of RW-4, is seen, then

only one conclusion can be drawn that his licence was

issued from Una, in the year 1976-77. Said licence was

deposited with MLO, Kangra and due to the fact that the

same has been damage, and he has got issued duplicate

licence.

56. Considering the above facts, this Court is in full

agreement with the findings, recorded by the learned

Tribunal, on issues No.3 and 4.

57. Even otherwise, it cannot be expected from the

owner to go to the concerned Licensing Authority to get the

driving licence verified. His duty comes to an end, when,

prima facie, he was satisfied with the fact that the driver,

who had to be engaged by him, was having a valid and

effective driving licence.

58. Learned Tribunal has rightly relied upon the

decision of Hon'ble Supreme Court in United India

Insurance Company Limited Versus Lehru, 2003 ACJ

.

611, as well as, the decision rendered by this Court in

Naresh Kumar versus Ram Dass and Other, 2010(3)

Shim. L.C. 500.

59. So far as the arguments of the learned counsel

appearing for the Insurance Company, that the petitioners

have miserably failed to prove that the offending vehicle

was driven by respondent No.2, in a rash and negligent

manner, is concerned, the proceedings under the M.V. Act,

are summary in nature, where, the liability of the tort-feaser

can be fixed, on the principle of preponderance of

probability.

60. The factum of accident and registration of FIR,

has been mentioned in paragraphs 8 and 9 of the claim

petition. These, paragraphs have been admitted by

respondents No.1 and 2, in their replies. The fact, admitted,

need not to be proved, by the parties asserting the same.

Even otherwise, the driver, when examined by the

Insurance Company, as RW-4, has admitted that he is facing

the trial arising out of the accident, in question.

61. Not only this, the petitioners have also examined

PW-4, Nain Singh, as eye witness to the accident, in

question. When, a person has deposed, on oath, that the

.

accident, in question, has taken place, due to the rash and

negligent driving, then, what evidence is required to

probabilize this fact, is not pointed out by learned counsel

appearing for the appellant.

62. So far as the arguments of the learned counsel

appearing for the appellant, qua the choice of the multiplier

is concerned, in view of the law laid down by the Hon'ble

Supreme Court in Sarla Verma & Others vs. Delhi

Supreme Court Cases, 121, '7' is the appropriate

multiplier to be applied, in this case, as the age of deceased

Nikka Ram, at the time of his death, has been pleaded and

proved as 64 years. The learned Tribunal has rightly applied

the multiplier of '7' in this case.

63. So far as deduction of 1/5th, out of the earnings

of the deceased, as done by the learned Tribunal, is

concerned, the petitioners are widow, son and daughters of

the deceased, who are five in number. In this case, the

learned Tribunal, has deducted 1/5th of the income of the

deceased on account of his personal expenses, had he been

alive.

64. The said deduction has also been assailed by the

.

Insurance Company, before this Court, on the ground that

the same is contrary to the decision of the Hon'ble Supreme

Court Sarla Verma's case supra.

65. In Sarla Verma's case supra, the Hon'ble

Supreme Court has elaborately discussed the amount,

which is to be deducted, on account of personal and living

expenses. Relevant paragraph 30 of the judgment is

reproduced, as under:

"30. Though in some cases the deduction to be made towards personal and living expenses is

calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this (2003) 3

SLR (R) 601 Court, we are of the view that where the deceased was married, the

deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family

members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six."

66. Considering the said fact, the learned Tribunal,

has wrongly deducted 1/5th income of the deceased, had he

been alive, instead of 1/4th. Deducting 1/4th amount, out

of the earnings of the deceased, which has been assessed,

as Rs.7,000/-, his contribution towards his family, comes to

Rs.5250/- (i.e. Rs.7,000/- - Rs.1750).

67. Thus, the entitlement of the petitioners to get

.

compensation under the head 'loss of income' comes to

Rs.5250/- x 12 x 7=Rs.4,41,000/-.

68. In this case, it has been argued by learned

counsel appearing for the petitioners that the 'just

compensation' has not been awarded by the learned

Tribunal under the other heads i.e. 'loss of estate', 'funeral

charges' and 'loss of consortium'.

69. Admittedly, the petitioners have not filed the

cross-appeal/cross-objections. However, in order to meet

the concept of 'just compensation', the amount of

compensation, can be enhanced, if the same is proved from

the evidence, so adduced, by exercising the powers, under

Order 41 Rule 33 of the Code of Civil Procedure (hereinafter

referred to as 'the CPC').

70. The learned Tribunal has awarded a sum of

Rs.5,000/- under the head 'loss of estate' and Rs.5000/-,

under the head 'funeral charges', whereas, in view of the

law laid down by the Hon'ble Supreme Court in National

Insurance Company Limited versus Pranay Sethi &

others, (2017) 16 Supreme Court Cases 680, the same

are required to be assessed as Rs.15,000/- under each head.

71. Similarly, the Hon'ble Supreme Court in Magma

.

General Insurance Company Limited versus Nanu Ram

alias Chuhru Ram and others, (2018) 18 Supreme

Court Cases 130, has enhanced the scope of awarding

compensation under the head 'loss of consortium'. Paras 21

to 24 of the said judgment are reproduced as under:-

"21. A Constitution Bench of this Court in Pranay Sethi 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 husband-wife which allows compensation to

the surviving spouse for loss of "company, society, co-peration, affection, and aid of the other in every conjugal relation".

21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."

21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of

the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

.

22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions 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.

23. The Motor Vehicles Act is a beneficial

legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the

parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental consortium is awarded to children who lose their parents in motor vehicle

accidents under the Act. A few High Courts have awarded compensation on this count.

However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium.

24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under `loss of consortium' as laid down in Pranay Sethi (supra). In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs.40,000 each for loss of Filial Consortium."

72. Therefore, in view of Nanu Ram's case supra,

the petitioners are held entitled to the consortium, which is

assessed at Rs.40,000/- each, which comes to Rs.2,00,000/-

(Rs.40,000x5).

73. As such, the petitioners are held entitled to total

.

compensation to the tune of Rs.4,41,000/- + Rs.2,00,000 +

Rs.15,000/- + Rs.15,000/- = Rs.6,71,000/-.

74. No other point has been urged or argued.

75. In view of the above discussion, this Court is of

the view that the awarded amount is liable to be enhanced

accordingly. Consequently, r the appeal filed by the

Insurance Company, is ordered to be dismissed, however,

the award amount is enhanced from Rs.4,90,000/- to

Rs.6,71,000/-, along with interest @ 7.5% per annum, from

the date of filing of the petition, till the realization of the

whole amount, with upto date interest.

76. The ultimate liability to pay the amount of

compensation is upon the Insurance Company, with whom

the offending vehicle, was insured, at the time of accident.

The award stands modified accordingly.

77. However, keeping in view the facts and

circumstances of the present case, there shall be no order

so as to costs.

78. Memo of costs be prepared.

79. Pending application(s), if any, are also disposed

of.

Record be sent back.

.

                                         (Virender Singh)
    September 15, 2023(ps)                    (Judge)




                   r         to