Sangita Devi And Ors vs Rajesh Kumar And Ors
2023 Latest Caselaw 93 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Miscellaneous Appeal No.236 of 2015
     ======================================================

1. Sangita Devi, W/o Late Prabhat Kumar,

2. Ansu, D/o Late Prabhat Kumar

3. Anubha, D/o Late Prabhat Kumar Appellant No. 2 is minor under the guardianship of her mother, Appellant no- 1. All resident of Village- Pahetiya, P.S.- Sadar Hajipur, District- Vaishali ... ... Appellant/s Versus

1. Rajesh Kumar, S/o Girja Prasad, District- Muzaffarnagar, Uttar Pradesh

2. Raj Narayan Singh, S/o Suman Bahadur Singh, Resident of Village- Dingur Patti, District- Mirzapur

3. United India Insurance Company Ltd. through Branch Manager, District-

Hajipur ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr.Alok Kumar @ Alok Kr. Shahi, Advocate For the Respondent no.3 : Mr.Durgesh Kumar Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT

Date : 09-01-2023

Heard Mr. Alok Kumar Shahi, learned counsel for the

appellants and Mr. Durgesh Kumar Singh, learned counsel for the

respondent no.3.

2. This appeal under Section 173 of the Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act of 1988') has been

filed for enhancement of the compensation allowed to the

claimants-appellants by the learned Motor Accident Claim

Tribunal, Hajipur, Vaishali (hereinafter referred to as 'the learned

Tribunal') in Claim Case No.82 of 2003. By the order dated

02.08.2014 and award dated 02.03.2015, the learned Tribunal has Patna High Court MA No.236 of 2015 dt.09-01-2023

been pleased to allow a sum of Rs.4,99,500/- towards the claim

with simple interest at the rate of 6% per annum. The Insurance

Company (respondent no.3) has been directed to pay the claimants

the award amount.

Brief facts of the case

3. The facts of the case as revealed from the records are

that on 15.06.2002 at about 8.00 PM the husband of the claimant

no.1 was going to Mirzapur after finishing his office work on a

jeep bearing Reg.No.UP3A 6198. The said jeep met an accident

with a Tata Sumo and in the said accident husband of the claimant

no.1 died. In connection with the said accident Case No.26 dated

16.06.2002 was registered in Chilh police station, Janpad Mirzapur

and police submitted a charge-sheet against the driver Pappu

Sonkar under Sections 279, 304A, 338 and 427 of the Indian Penal

Code. According to the claimant no.1 her husband was working in

the Electro Jecknow at Mirzapur and his monthly salary was

Rs.4100/-. At the time of accident and death he was 30 years old.

The employer of the deceased certified the fact that the deceased

was working in the said establishment and his monthly salary was

Rs.4100/-.

4. The Insurance Company opposed the claim before the

learned Tribunal on only ornamental grounds. Since the Insurance

Company has not come in appeal and has not challenged the Patna High Court MA No.236 of 2015 dt.09-01-2023

findings of the learned Tribunal, this Court need not go into any

detail discussion on those ornamental grounds of the Insurance

Company.

5. The learned Tribunal framed as many as six issues

which are as under:-

"1- D;k ;g nkok okn iks'k.kh; gS\ 2- D;k vkosnd dks eqvkotk nkok okn nkf[ky djus dk vf/kdkj vkSj dkj.k Fkk\ 3- D;k vkosnd }kjk iz"uxr okgu ij nq?kZVuk ds fy, ftEesokn gksus dk dkj.k lR; vkSj lgh gS\ 4- D;k vkosndx.k nkok vkosnu ds vuqlkj eqvkotk ikus ds gdnkj gS\ 5- D;k foi{khx.k nq?kZVuk vkSj eqvkots ds Hkqxrku ds fy, ftEesokj gS\ 6- D;k vkosnd nkok vkosnu ds vuqlkj vuqrks'kksa dks ikus dk vf/kdkj gS\"

Findings of the Tribunal

6. The learned Tribunal held that on the basis of the

evidences on the record, it is proved that the husband of the

claimant/applicant no.1 died in the accident due to fault of the

driver. The learned Tribunal accepted the income of the

deceased at Rs.4100/- per month but while calculating the total

loss of dependency, no future prospect was added to arrive at the

correct multiplicand. The learned Tribunal allowed only

Rs.2500/- on account of funeral expenses and Rs.5000/- as

spousal consortium. The learned Tribunal further deducted 1/3rd

of the income towards personal living expenses of the deceased.

In this manner, the total claim amount was calculated at Patna High Court MA No.236 of 2015 dt.09-01-2023

Rs.4,99,500/- and the respondent no.3 has been directed to pay

interest thereon at the rate of 6% per annum from the date of

filing of the application till the date of payment.

Submissions on behalf of the appellants

7. Learned counsel for the appellants has assailed the

impugned order/award as regards quantum on various grounds.

Learned counsel submits that the deceased left behind his

widow and two minor daughters. He was in employment of a

private company and his salary was duly proved in course of

evidence before the Tribunal. The Tribunal accepted the salary

amount of Rs. 41,00/- per month but did not add future prospect

at the rate of 40 % of the same while calculating the total

dependency loss. He has relied upon the judgment of the

Hon'ble Supreme Court in National Insurance Co. Ltd. Vs.

Pranay Sethi & Ors. reported in (2017) 16 SCC 680.

8. It is further submitted that the Tribunal could not

appreciate that the deceased had three dependents upon him and

in such circumstance, he could not have spent 1/3rd of his

income on his own, the correct approach would have been to

deduct 1/4th of his income as personal expenses.

9. Learned counsel has further assailed the impugned

order on the ground that the learned Tribunal has failed to Patna High Court MA No.236 of 2015 dt.09-01-2023

follow the judgment of the Hon'ble Supreme Court in the case

of Sarla Verma & Ors. Vs. Delhi Transport Corporation and

Another reported in (2009) 6 SCC 121. As regards payments of

claims on conventional heads, referring to the judgment of the

Hon'ble Constitution Bench of the Supreme Court of India in

the case of Pranay Sethi (supra), learned counsel submits that

the appellants are entitled to get claim on account of funeral

expenses at Rs. 15,000/-, estate loss at Rs. 15,000/-, spousal

consortium at Rs. 40,000/- to appellant no. 1 and parental

consortium at the rate of Rs. 40,000/- to each of the two minor

children.

10. Learned counsel further submits that since the age

of the deceased was found to be 30 years, in his case, the

multiplier of '17' would be applicable. In this connection,

learned counsel has drawn the attention of this Court towards

the table of multiplier drawn by the Hon'ble Supreme Court in

the case of Sarla Verma (supra) which applies in case of a

claim filed under Section 166 of the Act of 1988. The Hon'ble

Constitution Bench in the case of Pranay Sethi (supra) has

approved the table read with paragraph '42' of Sarla Verma

(supra). Learned counsel further submits that the claimants

should be entitled for interest on enhanced amount payable to Patna High Court MA No.236 of 2015 dt.09-01-2023

the claimants.

11. Learned counsel for the appellants has relied on

the judgment of the Hon'ble Supreme Court in the case of

Chandra @ Chanda @ Chandraram & Anr. vs. Mukesh

Kumar Yadav & Ors. reported in (2022) 1 SCC 198 to submit

that in the said case, the Hon'ble Supreme Court has relied upon

the judgments in the case of Sarla Verma (supra) and Magma

General Insurance Company Ltd. Vs. Nanu Ram @ Chuhru

Ram and Others reported in (2018) 18 SCC 130 to hold that

the appellants were entitled for parental consortium of Rs.

40,000/- each. It is submitted that in terms of the judgment in

the case of Pranay Sethi (supra) a 10% increase is to be

provided on the conventional heads, therefore, in this case, the

claims on the conventional heads be allowed with an increase of

10%.

Submissions on behalf of the Insurance Company

12. Mr. Durgesh Kumar Singh, learned counsel for the

Insurance Company has opposed this appeal on certain grounds.

It is his submission that even as in view of Pranay Sethi (supra)

future prospects may be allowed at the rate of 40% of the

income, but no interest may be allowed on future prospect. In

this connection, he has relied upon a judgment of the Hon'ble Patna High Court MA No.236 of 2015 dt.09-01-2023

Guwahati High Court in the case of Oriental Insurance

Company Ltd. vs. Smiti Rumi Barman & Ors. (Case

No.MACApp./77/2017) decided on 11.02.2021 to submit that in

the said case, the amount paid under the head of future prospect

shall not carry further interest of 6%.

Consideration

13. Having heard learned counsel for the appellants

and respondent no. 3 and upon perusal of the records as also the

judgments of the Hon'ble Supreme Court, this Court finds that

there is no dispute on applying multiplier of '17' in the instant

case. Further there is no dispute on providing future prospects

and claims on conventional heads. The insurance company has,

however, opposed the submission of the appellants that the

living expenses be calculated at 1/4th of the income and that the

claimants are entitled for spousal consortium and parental

consortium at the enhanced amount. Further the insurance

company has claimed that no interest be allowed on future

prospects.

14. On adding the future prospect, in view of the

judgment of the Hon'ble Supreme Court in Pranay Sethi

(supra), this Court has no iota of doubt that in this case 40% of

the salary amount of the deceased would be entitled to be added Patna High Court MA No.236 of 2015 dt.09-01-2023

while calculating total loss of dependency. Paragraph '57' of the

Hon'ble Apex Court judgment in Pranay Sethi (supra) inter-

alia reads as under:-

"57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardisation, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust.

The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act....."

15. Further in paragraph 59.4, their Lordships laid

down the law on this aspect as under:-

"59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should 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 Patna High Court MA No.236 of 2015 dt.09-01-2023

the tax component."

16. On the point of deduction of living expenses, in

Sarla Verma (supra) the Hon'ble Supreme Court has observed

in Paragraph 30, 31 and 32 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 [(1996) 4 SCC 362], the general practice is to apply standardised deductions. Having considered several subsequent decisions of this 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.

31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father.

32. Thus even if the deceased is survived by parents and siblings, only the mother would Patna High Court MA No.236 of 2015 dt.09-01-2023

be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."

17. The judgment in the case of Sarla Verma (supra)

was approved in the case of Reshma Kumari Vs. Madan

Mohan reported in (2013) 9 SCC 65. In the case of Pranay

Sethi (supra), the Hon'ble Constitution Bench of the Supreme

Court has taken note of the views expressed by the Apex Court

in Reshma Kumari (supra) in Paragraph '43.6'. In this

connection, Paragraph '39' and '40' of the judgment of the

Hon'ble Supreme Court in Pranay Sethi (supra) are quoted

hereunder for a ready reference:-

"39. In Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65, the three- Judge Bench, reproduced paras 30, 31 and 32 of Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 and approved the same by stating thus :

"41. The above does provide guidance for the appropriate deduction for personal and living expenses. One must bear in mind that the proportion of a man's net earnings that he saves or spends exclusively for the maintenance of Patna High Court MA No.236 of 2015 dt.09-01-2023

others does not form part of his living expenses but what he spends exclusively on himself does. The percentage of deduction on account of personal and living expenses may vary with reference to the number of dependent members in the family and the personal living expenses of the deceased need not exactly correspond to the number of dependents.

42. In our view, the standards fixed by this Court in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121] on the aspect of deduction for personal living expenses in paras 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraph is made out."

40. The conclusions that have been summed up in Reshma Kumari [Reshma Kumari v.

Madan Mohan, (2013) 9 SCC 65 are as follows : (SCC p. 91, para 43) "43.1. In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the Table prepared in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121] read with para 42 of that judgment.

43.2. In cases where the age of the deceased is up to 15 years, irrespective of Section 166 or Section 163-A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the Table in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121] should be followed.

43.3. As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to Patna High Court MA No.236 of 2015 dt.09-01-2023

seek guidance or for placing reliance on the Second Schedule in the 1988 Act.

43.4. The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121] for determination of compensation in cases of death.

43.5. While making addition to income for future prospects, the Tribunals shall follow para 24 of the judgment in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121] .

43.6. Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paras 30, 31 and 32 of the judgment in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121] subject to the observations made by us in para 41 above."

18. In the light of the aforementioned judgment of the

Hon'ble Supreme Court when the facts of the present case are

looked into it may be found that the deceased left behind his

widow and two minor daughters. Considering the number of

dependents it cannot be said that he would have been in a

possession to spend 1/3rd of his income upon himself. This

Court is, therefore, of the considered opinion that the deductions

of 1/4th of the income on account of personal expenses would

be appropriate.

19. As regards the claims under the conventional

heads, in Pranay Sethi (supra), the Hon'ble Supreme Court has Patna High Court MA No.236 of 2015 dt.09-01-2023

in paragraph '48' held as under:-

"48. This aspect needs to be clarified and appositely stated. The conventional sum has been provided in the Second Schedule to the Act. The said Schedule has been found to be defective as stated by the Court in Trilok Chandra [UP SRTC v. Trilok Chandra, (1996) 4 SCC 362]. Recently, in Puttamma v. K.L. Narayana Reddy (2013) 15 SCC 45 it has been reiterated by stating : (SCC p. 80, para 54) "54. ... we hold that the Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy."

20. The same view has been reiterated in Magma

General Insurance Company Ltd. (supra) and in the case of

United India Insurance Company Limited Vs. Satinder

Kaur @ Satwinder Kaur and Others reported in (2021) 11

SCC 780.

21. In Pranay Sethi (supra) the Hon'ble Supreme

Court has recognized three categories of confessional heads;

(i) Funeral expenses at Rs. 15,000/-, (ii) Estate loss at Rs.

15,000/- and (iii) loss of consortium at Rs.40,000/-. While

discussing the meaning of word 'consortium' the Hon'ble

Supreme Court in the case of Pranay Sethi (supra) though did

not approve Rajesh v. Rajbir Singh (2013) 9 SCC 54 but

revisited the principles on fixation of conventional heads, after Patna High Court MA No.236 of 2015 dt.09-01-2023

quoting para-17 of Rajesh as under:-

"17. ... In legal parlance, "consortium" is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non- pecuniary head of damages has not been properly understood by our courts. The loss 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 of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium."

22. After fully analyzing the earlier judgments of the

Apex Court, ultimately their Lordship in Pranay Sethi (supra)

held in paragraph 59.8 as under:-

"59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs Patna High Court MA No.236 of 2015 dt.09-01-2023

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."

23. By the judicial pronouncements, now it is well

settled that the widow of the deceased would be entitled for a

spousal consortium and the minor children would get parental

consortium. In case of the parents if dependent on the deceased,

they would be entitled for filial consortium. The amount under

the consortium head shall increase at the rate of 10% at the end

of every three years. In the present case, the widow (appellant

no. 1) would be entitled for Rs. 44,000/- as spousal consortium

whereas appellant nos. 2 and 3 would be entitled for Rs.

44,000/- each on account of parental consortium. They would

also be entitled for the claim on account of funeral expenses at

Rs. 15,000/- and Estate loss at Rs. 15,000/-.

24. As regards payment of interest on the future

prospect amount, this Court is of the opinion that since the

future prospect is added as per the judgment of the Hon'ble

Supreme Court while calculating the total loss of dependency, in

absence of there being any mandate of the Hon'ble Apex Court

on this point, there is no reason as to why the same being part of

the claim to be allowed to the claimants/applicants will not earn

interest. This Court regrets its inability to agree with the views

expressed by the Hon'ble Gauhati High Court on this issue.

Patna High Court MA No.236 of 2015 dt.09-01-2023

25. In result, this appeal is allowed. The claimants are

found entitled for the following amounts:-

                             (i)                 Monthly Income                Rs.4100.00
                             (ii)           Add Future Prospect @40%           Rs.1640.00
                                                        Total                  Rs.5740.00
                            (iii)         Less Personal Expenses 1/4th of      Rs.1435.00
                                                    Rs.5740.00
                            (iv)     Loss of Dependancy: Rs.4305.00 x 12 x17 Rs.8,78,220.00
                             (v)                 Funeral Expenses              Rs.15,000.00
                            (vi)                   Loss of Estate              Rs.15,000.00
                            (vii)           Loss of Spousal Consortium         Rs.44,000.00

(viii) Loss of Parental Consortium to both of the Rs.88,000.00 minor children at the rate of 44,000.00 each Total compensation to be paid Rs.10,40,220.00 Less amount already paid Rs.4,99,500.00 Balance payable with interest @ 6% per Rs.5,41,720.00 annum from the date of filing of the claim till payment

26. Thus, a sum of Rs. 5,41,720.00 together with

interest at the rate of 6% per annum from the date of filing of

the claim till the date of payment be made available to the

claimants within a period of two weeks from the date of

receipt/communication of a copy of this order.

(Rajeev Ranjan Prasad, J) arvind/-

AFR/NAFR
CAV DATE
Uploading Date             16.01.2023
Transmission Date