Punjab-Haryana High Court
Vinod Kumar & Ors vs Pardeep Kumar & Ors on 15 December, 2022
296
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO-8221-2014 (O&M)
Date of Decision: December 15, 2022
Vinod Kumar and another
....Appellants
Versus
Pardeep Kumar and another
.....Respondents
CORAM: HON'BLE MRS JUSTICE ARCHANA PURI
Present:- Mr.Narender Kaajla, Advocate
for the appellants.
Mr.Amit Kumar Goyal, Advocate
for respondent No.2-Insurance Company.
*****
ARCHANA PURI, J
Challenge in the present appeal is to the Award dated
14.05.2014 passed by learned Motor Accident Claims Tribunal, whereby,
compensation has been granted to the claimant, on account of death of their
son, namely Ankush, in a motor vehicular accident.
On appraisal of the evidence, brought on record, learned
Tribunal, had granted compensation to the extent of Rs.3,72,000/- along
wtih interest @7.5 per annum, to the appellants-claimants. Even, the
liability of the respondents, was held to be joint and several.
Feeling aggrieved by the extent of compensation, so granted,
the appellants-claimants have filed the appeal.
In pursuance of the notice issued, the insurance company had
made appearance.
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As per the version of the appellants-claimants, on 29.09.2013,
Ankush, minor son fo the appellants along with Baljeet s/o Chandgi Ram,
on foot, were going to the fields. Enroute, Bolero vehicle bearing
registration No.HR-22C-7149, driven by respondent No.1-Pardeep Kumar,
in a rash and negligent manner, came from backside and struck against
Ankush and Baljeet. As a result of the accident, Ankush fell on the pucca
portion of the road and Baljeet fell on the katcha portion. Ankush received
multiple serious injuries on his person. He was shifted to Sarvodaya
Hospital, Hisar, where, he was treated but he succumbed to his injuries on
01.10.2013.
It is further the specific claim of the appellants-claimants, about
the accident, to have taken place, due to rash and negligent driving of
respondent No.1, qua which, FIR No.1043 dated 30.09.2013 under Sections
279, 336 and 337 IPC was registered against respondent No.1-Pardeep
Kumar and later on, in pursuance of death of Ankush, addition of Section
304-A IPC was made.
However, respondent No.1-driver/owner of the offending
vehicle, in his separate reply, had denied about the accident. Even, the
insurance company-respondent No.2 had denied about the accident, besides,
taking other objections.
At the very outset, it is pertinent to mention that even though,
there is denial of accident, at the behest of the respondents, but no evidence,
has been led on record, to so substantiate this plea of denial. In fact,
respondent No.1, who in the capacity of being driver, at the relevant time,
was the best person, to depose about the accident having not caused and
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about no involvement of the offending vehicle, in the alleged accident, had
not stepped into witness box.
On the contrary, Baljeet Singh, who was accompanying the
deceased, at the relevant time, has stepped into witness box as PW-2 and in
his affidavit, he has categorically stated about fact of accident and also
imputed rashness and negligence, on the part of respondent No.1-Pardeep
Kumar and also deposed about sustaining of extensive injuries by Ankush,
as a result of the accident, which proved fatal. Even, PW-3 Vinod Kumar,
who is father of the deceased, has deposed about the death of his son, in
motor vehicular accident. PW-1 Mukesh Kumar, Criminal Ahlmad has
proved the record about the trial being faced by respondent No.1-Pardeep
Kumar, in criminal case, vis-a-vis, FIR lodged against him and proved the
relevant documents. Even, PW-4 Dr.B.L.Bagri, has been examined, who
has deposed about the admission of the deceased, in the hospital and also
about his death. The post-mortem report has been proved as Ex.P20. This
evidence has gone un-rebutted and unchallenged.
Considering the aforesaid evidence and the very fact of
respondent No.1, not stepping into witness box, to substantiate the plea of
denial and also considering the fact of no appeal, having been filed, at the
behest of respondent No.1, to challenge the liability, so fastened upon him,
the fact of accident and imputation of rashness and negligence, on the part
of respondent No.1-Pardeep Kumar, stands amply established and findings
qua the same, has attained finality.
In this backdrop, now further, we have to consider the extent of
compensation to be granted to the appellants-claimants.
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At the very outset, it has been submitted by learned counsel for
the appellant that deceased Ankush was 6 years old, at the time of accident.
It is further submitted by learned counsel for the appellant that learned
Tribunal had not appraised the evidence, in correct perspective and had
taken the notional income, on lower side and therefore, the compensation,
so awarded by learned Tribunal, is on lower side, which requires extensive
enhancement.
On the other hand, learned counsel for the Insurance company
has refuted the claim of the appellants-claimants, while asserting that no
satisfactory evidence has been led to seek compensation, as now impressed
upon and thus, he submits that the appeal sans merit and deserves to be
dismissed.
Reverting to the computation of compensation, in the facts of
this case, a child died in a road accident, at the age of 6 years. At the time
of accident, deceased was student of 1st class. In these circumstances, it is
required to be seen, how the computation of compensation, may be made. It
has been submitted that the deceased child was a brilliant student of 1st
class and had he not met with the accident, he would have been well settled
in his life. To so substantiate, his submission, learned counsel for the
appellants has placed reliance upon report card Ex.P21, wherein, percentage
of the deceased child, in Ist term examination, has been stated to be 97.5%.
It is pertinent to mention that Hon'ble Supreme Court in case
titled as 'Kishan Gopal and another v/s Lala and others, 2013(4) RCR
(Civil) 276', while considering the death of a child, aged 10 years, took the
notional income of the deceased as Rs.30,000/- and applied multiplier of
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'15' and compensation came to be Rs.4.5 lakh. Rs.50,000/- was given
towards love, affection, funeral expenses and last rites. The accident in that
case, related to the year 1992.
Even, Hon'ble Supreme Court in case titled as 'Kurvan Ansari
alias Kurvan Ali and another v/s Shyam Kishore Murmu and another,
Civil Appeal No.6902 of 2021 decided on 16.11.2021' was considering the
case of death of 7 years old child, in a motor vehicular accident, which took
place in the year 2004 and made certain observations, which are as under:-
"11. As the claim was made under Section 163-A of the Motor
Vehicles Act 1988, since the deceased child was not an
earning member, the Tribunal has considered notional income
as per Schedule-II for the purpose of fixing compensation. The
Tribunal has awarded compensation by taking notional
income of the deceased at Rs.15,000/- per annum by applying
multiplier '15', awarded compensation of Rs.2,25,000/-
towards loss of dependency with interest @ 6% per annum
from the date (2009) 14 SCC 1 (2014) 1 SCC 244 (2020) 7
SCC 256 of judgment. When the appeals are preferred by the
Insurance Company as well as the appellants herein, by the
impugned common judgment, the High Court has dismissed the
appeal preferred by the Insurance Company, and in the appeal
preferred by the claimants, while confirming the compensation
awarded for loss of dependency at Rs.2,25,000/-, has awarded
a further sum of Rs.15,000/- towards funeral expenses and
accordingly granted a total compensation of Rs.2,40,000/-
with interest @6% per annum payable by respondent No.2 -
Insurance Company and by permitting it to recover the same
from Respondent No.1 - owner of the motorcycle.
12. In the judgment in the case of Puttamma & Ors., this Court
has observed that the Central Government was bestowed with
the duties to amend Schedule-II in view of Section 163A(3) of
the Motor Vehicles Act 1988, but it failed to do so. In view of
the same, specific directions were issued to the Central
Government to make appropriate amendments to Schedule-II
keeping in mind the present cost of living. In the said
judgment, till such amendments are made, directions were
issued for award of compensation by fixing a sum of
Rs.1,00,000/- (Rupees one lakh only) towards compensation
for the non-earning children up to the age of 5 (five) years old
and a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand
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only) for the non- earning persons of more than 5 (five) years
old.
13. In the case of R.K. Malik & Anr. also, this Court has
observed that the notional income fixed under Section 163-A of
the Motor Vehicles Act, 1988 as Rs.15,000/- per annum should
be enhanced and increased as the same continued to exist
without any amendment since 14.11.1994. In the case of
Kishan Gopal & Anr. where the deceased was a ten years old
child, this Court has fixed his notional income at Rs.30,000/-
per annum.
14. In this case, it is to be noted that the accident was on
06.09.2004. In spite of repeated directions, Schedule-II is not
yet amended. Therefore, fixing notional income at Rs.15,000/-
per annum for non- earning members is not just and
reasonable.
15. In view of the judgments in the cases in Puttamma & Ors.,
R.K. Malik & Anr. and Kishan Gopal & Anr., we are of the
view that it is a fit case to increase the notional income by
taking into account the inflation, devaluation of the rupee and
cost of living. In view of the same, the judgment in the case of
Rajendra Singh & Ors. relied on by the learned counsel for
respondent No.2-Insurance Company would not render any
assistance to the case of the insurance company."
In view of the aforesaid observations, the Court took the
notional income of the deceased child as Rs.25,000/- per annum and applied
multiplier of '15' as prescribed in Schedule-II, for the claims under Section
163A of the Motor Vehicles Act, 1988 and worked upon the amount as
Rs.3.75 lakh towards the loss of dependency. Besides the same, Rs.40,000/-
each was given to the claimants, who were two in number, towards filial
consortium and Rs.15,000/- was given towards funeral expenses. The total
compensation was worked upon as Rs.4,70,000/-.
In the latest case on the subject titled 'Meena Devi v/s Nunu
Chand Mahto @ Nemchand Mahto and others, 2022(4) RCR (Civil) 553'
the Hon'ble Supreme Court had considered the case of death of 12 years old
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child, in a motor vehicular accident and while granting compensation had
observed that the principle laid down in case of Kishan Gopal's case
(supra), are aptly applicable to the facts of the case (in hand), and thus, took
the notional earnings as Rs.30,000/- including future prospects and applying
the multiplier of '15' in view of the decision of the Court passed in
'Smt.Sarla Verma vs. Delhi Transport Corporation and anr., 2009(3)
RCR (Civil) 77', the loss of dependency was worked upon to be
Rs.4,50,000/- and addition of Rs.50,000/- was made in conventional head
and thus, the total compensation was worked upon as Rs.5,00,000/-
Considering the aforesaid, now reverting to the case in hand.
Be it noted that the Insurance company had not challenged the Award. The
accident in the case, in hand, had taken place on 29.09.2013. Considering
the date of death in Kishan Gopal's case (supra), the value of rupee has
come down drastically. Moreover, the deceased child, was a bright child, as
evident from his performance, while studying in 1st Class.
Taking into consideration, all the aforesaid factors, the notional
income, in the case, in hand, can safely be taken to be Rs.30,000/- per
annum. Thus, considering the age of the parents, who were 28 and 26 years
old, at the relevant time, the multiplier to be applied in the case, in hand, as
per guidelines laid down in Sarla Verma's case (supra), is '17' and so
calculating, the loss of dependency comes to be Rs.5,10,000/-.
Besides the aforesaid, amounts are to be paid on conventional
heads, namely, loss of estate, loss of consortium and funeral expenses as
held in 'National Insurance Company Limited vs. Pranay Sethi and
others, 2017(4) RCR (Civil) 1009'. In 'Magma General Insurance
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Company Limited vs. Nanu Ram @ Chuhru Ram and others, 2018 (18)
SCC 130', the concept of consortium, has been dilated in detail, wherein, it
has been held that filial consortium is the right of the parents to
compensation, in case of 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 the parents is to lose their children
for lifetime. Children are valued for their love, affection, companionship
and their role in the family unit. Therefore, on the count of filial consortium
also, compensation is to be granted.
In Pranay Sethi's case (supra), the extent of consortium which
should be paid is stated to be Rs.40,000/-, for the loss of estate, it is
Rs.15,000/- as well as for the funeral expenses, it is Rs.15,000/- and these
findings have been further endorsed by the Hon'ble Supreme Court in the
case titled as 'The New India Assurance Company Limited v/s Somwati
and others, Civil Appeal No.3093 of 2020, decided on 07.09.2020'. It was
further held in Pranay Sethi's case (supra) that the aforesaid amount should
be enhanced by 10% after every three years. As the said judgment is dated
31.10.2017, so there has to be enhancement of 10% in each of these
conventional heads, which comes to be Rs.44,000/- as filial consortium,
which is to be paid to each of the parent, Rs.16,500/- as loss of estate and
Rs.16,500/- as funeral expenses.
Besides the same, it is also pertinent to mention that the victim
also remained admitted in Hospital for one day, before his death, after the
accident and prior to his death. Relating to the same, even Dr.B.L.Bagri,
Medical Superintendent of Sarvodaya Multispeciality Hospital, Hisar, has
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been examined as PW-4, who has deposed about admission of Ankush, in
their hospital and has further proved the copy of MLR Ex.P6. Further,
ruqqa, which was sent to the police station is Ex.P7. He also deposed that
patient was treated by Neuro Surgeon in the ICU, on ventilator support and
patient expired on 01.10.2013. He further proved ruqqa of death Ex.P8,
investigation reports Ex.P9 and Ex.P10, death report Ex.P11. Besides the
same, bills of medical expenditure, so incurred have been proved as Ex.P12
to Ex.P19.
Considering the aforesaid evidence, so adduced, learned
Tribunal had appropriately granted, an amount of Rs.22,000/-, in lumpsum,
as expenses, incurred on the treatment of Ankush, prior to his death and the
finding, on this count, is hereby affirmed.
Even though, a sum of Rs.1 lakh has been granted by learned
Tribunal towards loss of love and affection to appellant-claimant No.2
(mother), but however, it is pertinent to make reference to the decision
rendered by the Hon'ble Supreme Court in Magma's case (supra), wherein,
comprehensive interpretation was given to the expression 'consortium' to
include 'spousal consortium', 'parental consortium' as well as 'filial
consortium'. It was further laid down that 'loss of love and affection is
comprehended in loss of consortium'. Hence, there is no justification to
award compensation towards 'loss of love and affection', as a separate head,
which view was further endorsed in Somwati's case (supra).
In view of the aforesaid discussion, the compensation to be
granted to the appellants-claimants, is hereby re-appraised as follows:-
Loss of dependency : Rs.5,10,000/-
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Loss of consortium : Rs.88,000/-
(Rs.44,000x2)
Funeral expenses : Rs.16,500/-
Loss of estate : Rs.16,500/-
Medical treatment : Rs.22,000/-
Total : Rs.6,53,000/-
As such, the enhanced compensation, after the compensation
awarded by the Tribunal comes to Rs.6,53,000-3,72,000=Rs.2,81,000/-.
The enhanced amount shall be apportioned and released
amongst the appellants-claimants, as ordered by learned Tribunal. The
impugned Award dated 14.05.2014 stands modified, to the extent, as
indicated aforesaid. The remaining terms of the impugned Award shall
remain the same.
With the above observations, the present appeal stands allowed.
December 15, 2022 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes/No
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