Punjab-Haryana High Court
Mahima Gaur & Anr vs Pawan Kumar & Ors on 16 April, 2024
Author: Archana Puri
Bench: Archana Puri
Neutral Citation No:=2024:PHHC:052248
2024:PHHC:052248
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-4493-2011 (O&M)
Date of Decision: April 16, 2024
Mahima Gaur and another
...Appellants
VERSUS
Pawan Kumar and others
...Respondents
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Mr.Deepak Arora, Advocate
for the appellants.
Mr.Pardeep Goyal, Advocate
for respondent No.3-insurance company.
****
ARCHANA PURI, J.
The present appeal has been filed by the appellants-claimants,
thereby, seeking enhancement of the compensation, granted by learned
Motor Accident Claims Tribunal, on account of death of Ashok Kumar
Gaur, in a motor vehicular accident, which took place on 20.01.2008.
Vide Award dated 04.04.2011, learned Tribunal had decided
two claim petitions, one relating to the death of Ashok Kumar Gaur and
another relating to the damage caused to the car, of which deceased Ashok
Kumar Gaur was the occupant, at the time of the accident.
On appraisal of the evidence adduced, in the claim petition qua
death of Ashok Kumar Gaur, learned Tribunal had granted compensation to
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the extent of Rs.5,05,000/- to the appellants-claimants.
The facts germane, to be noticed, are as follows:-
That, on 20.01.2008, Ashok Kumar Gaur, was going to his village
Paldi from Mahilpur, after purchasing domestic articles, in his car bearing
registration No.PB-10AB-2700 and was followed by Jaspal Singh, in
another car. At about 6.35 pm, when Ashok Kumar Gaur reached ahead of
tubewell of Baljeet Singh of village Khera and was going at a slow speed, on
correct left side of the road, the driver of the truck (Tipper bearing
registration No.PB-06C-2308, which was going ahead of the car of the
deceased, suddenly applied the brakes in the middle of the road, as a result
whereof, the car being driven by Ashok Kumar Gaur, struck against the
backside of the truck and he died instantaneously and the car was also
damaged.
On appraisal of the evidence adduced, learned Tribunal
concluded about there to be contributory negligence, on the part of the
deceased, who had struck his car against the truck (tipper) from behind. The
negligence was apportioned to the extent of 50%.
Learned Tribunal had concluded about deceased Ashok Kumar
Gaur to be 33 years old and while considering about the deceased to be
owner of Maruti car bearing registration No.PB-10AB-2700 and Tata 407
bearing registration PB-07M-9261 and about his plying the same on hire and
also considering the indulgence of the deceased in dairy farming, had taken
the earnings of the deceased as Rs.7500/-per month. After making deduction
of 50%, on the basis of the contributory negligence, learned Tribunal had
considered the earnings of the deceased as Rs.3750/- per month. The
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multiplier of '16' was applied and on the count of 'personal expenses' 1/3rd
was deducted and in this manner, the compensation was worked upon as
Rs.4,80,000/-. Besides the same, claimant No.1 was also held entitled to
Rs.10,000/-, on the count of 'loss of consortium' and claimant No.3 was
held entitled to Rs.10,000/- on the count of 'loss of love and affection'.
Besides the same, another sum of Rs.5,000/- was given, on the count of
'funeral expenses'. Thus, the total compensation was worked upon as
Rs.5,05,000/-, vis-a-vis, death of Ashok Kumar Gaur, in the accident in
question.
Though, in the grounds of appeal, it is the pleaded that the
extent of earnings of the deceased have been taken on lower side and even
the multiplier applied is not appropriate, but however, learned counsel for
the appellants-claimants, during the course of arguments, submits that he
does not dispute the extent of earnings, as worked upon by learned Tribunal
and also about the application of the multiplier, which is appropriate as per
Sarla Verma's case, but however, he submits that as per Pranay Sethi's
case, the compensation granted under the conventional heads, calls for
intervention by this Court and thus, he limits his prayer only for
enhancement qua the conventional heads only.
Also, learned counsel for the insurance company submits that
learned Tribunal had appropriately considered the earnings of the deceased
as Rs.7,500/- per month. Even, the multiplier of '16', so applied, is just and
suitable, as per Sarla Verma's case. He further submits that he has no
National Insurance Company Limited vs. Pranay Sethi and others, 2017(4) RCR (Civil) 1009
Smt.Sarla Verma vs. Delhi Transport Corporation and anr., 2009(3) RCR (Civil) 77
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objection, if the compensation qua the conventional heads is enhanced, as
per the prevalent law.
Considering the submissions aforesaid, it is pertinent to mention
that even though, it was the claim of the claimants before learned Tribunal
about the deceased to be having earnings of Rs.15,000/- per month, but
however, considering the inputs of the expenditure to be incurred on the
maintenance of the vehicles, owned by the deceased and also with regard to
the indulgence in dairy farming, the loss of earnings has been appropriately
considered as Rs.7,500/- per month, which, as such, is not disputed by
learned counsel for the appellants. In the given circumstances, the earnings,
as such, even though, taken as Rs.7,500/- per month, but however, learned
Tribunal had appropriately considered the aspect of contributory negligence
to be there, to the extent of 50%, on the part of the deceased, as he struck
against the truck from backside and the gravity of the force, with which, he
struck the car into the truck (tipper), itself speaks about the negligence to be
there, on the part of deceased Ashok Kumar Gaur, as he had not maintained
safe distance and also he had no full control over the vehicle, driven by him.
In these circumstances, learned Tribunal had appropriately apportioned the
negligence to the extent of 50%. Taking it to be so, the reduced earnings of
the deceased, comes to be Rs.3750/-, annual whereof, comes to be
Rs.45,000/-.
Keeping in view the age of the deceased to be 33 years, on the
count of 'future prospects', addition of 40% ought to be made, which comes
to be Rs.45,000+18000(40%)=Rs.63,000/-. Learned Tribunal had
appropriately applied the suitable multiplier of '16' and while applying the
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same, the loss of earnings comes to be Rs.63000x16=Rs.10,08,000/-.
Besides the aforesaid, the compensation awarded by learned
Tribunal, under the conventional heads, definitely calls for intervention.
As per Pranay Sethi's case (supra), the compensation, ought
to be paid to the claimants, on the count of 'loss of consortium', 'loss of
estate' and 'funeral expenses', which was stated to be to the extent of
Rs.40,000/-, Rs.15,000/- and Rs.15,000/- respectively. However, with the
enhancement clause of 10%, after every three years of the passing of the
judgment, the compensation, on the aforesaid counts, works out to be,
Rs.48,400/-, Rs.18,150/- and Rs.18,150/-, respectively.
As per 'Magma General Insurance Company Limited vs.
Nanu Ram @ Chuhru Ram and others, 2018 (18) SCC 130' , all the
dependents of the deceased/claimants, are entitled to 'parental', 'spousal' or
'filial' consortium, as required.
Apart from appellant No.1, who is widow of the deceased, even,
appellant No.2, who is the son, is also entitled to 'filial consortium'. Thus,
both the appellants are held entitled to Rs.48,400/- each, on the count of
'loss of consortium'.
However, learned Tribunal had granted a sum of Rs.10,000/- to
appellant No.2, on the count of 'loss of love and affection'. But anyhow, as
held in Magma's case (supra), the loss of love and affection is
comprehended in 'loss of consortium' and as such, on this count, no
compensation is separately required to be awarded.
Considering the same, the compensation payable to appellants-
claimants, on account of death of Ashok Kumar Gaur , is re-computated, as
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herein given:-
Loss of dependency : Rs.10,08,000/-
Loss of consortium : Rs.96,800/-
Loss of estate : Rs.18,150/-
Funeral expenses : Rs.18,150/-
Total : Rs.11,41,100/-
As such, the enhanced compensation, after the deduction of
compensation awarded by the Tribunal comes to be Rs.11,41,100-5,05,000/-
=Rs.6,36,100/-. On the enhanced amount of the compensation i.e.
Rs.6,36,100/-, the appellants-claimants shall be entitled to the interest, at the
rate of 6% per annum, from the date of filing of the present appeal, till
realization of the enhanced amount of compensation. The differential
amount, as now awarded, be apportioned between the appellants-claimants
in equal proportion. The residue terms of the Award, as ordered by learned
Tribunal, shall remain the same.
In view of the aforesaid terms, the present appeal stands
allowed.
April 16, 2024 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes/No
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